Opinion
No. 71732
OPINION FILED: July 15, 1997
Appeal from Circuit Court of the City of St. Louis, Hon. Henry Autrey.
AFFIRMED.
Thomas A. Connelly, P.C., Counsel for Appellant.
Tyrone A. Taborn, City Counselor, and Edward J. Hanlon, Deputy City Counselor, Counsel for Respondent.
Crane, P.J. and Smith, J., concur.
Appellant, Bellon Environmental Company (Bellon), brought suit against FJ Construction, Inc. (FJ), the Port Authority of St. Louis (Port Authority), and Carrie Barnhart, Reuben Anderson, Fred O. Hale, Nathan Conley, Arthur McWilliams, James Seulmann, and Freeman Bosley, Sr., Directors of the Port Authority (Directors). Count I of the petition alleged breach of contract against FJ and Count II alleged breach of statutory duty, pursuant to Section 107.170 RSMo 1986, against the Port Authority and its Directors, individually and severally. Bellon moved for summary judgment against FJ, the Port Authority and its Directors. In its response to the summary judgment, the Port Authority claimed only that it did not enter into a contract for public work with Bellon. The Port Authority also filed a motion to dismiss Bellon's claim on the grounds that Bellon's petition failed to state a claim on which relief could be granted as Bellon failed to allege that the Port Authority entered into a contract with Bellon for public work as required by Section 107.170 RSMo 1986. The directors never filed any motions. A hearing was held on both motions on October 7, 1996. The court denied Bellon's motion for summary judgment as to the Port Authority and granted the Port Authority's motion to dismiss Bellon's claim, without prejudice, dismissing only the Port Authority. On October 16, 1996, the court granted Bellon's motion for summary judgment against FJ on Count I and also entered judgment against the Directors of the Port Authority, jointly and severally on Count II.
On May 31, 1988, the Port Authority entered into a lease for mooring rights and warehouse space on publicly owned land with Beelman River Terminals, Inc. Beelman then contracted with FJ to make several repairs and capital improvements to the leased facility including the removal of asbestos from a warehouse located on the leased property. FJ hired Bellon to do the asbestos removal work. Bellon completed the work but has never been compensated.
Bellon appeals only the court's judgment granting the Port Authority's motion to dismiss.
At the outset, we must first address the issue of our jurisdiction over this appeal. Port Authority claims that we lack jurisdiction because the trial court's grant of its motion to dismiss was without prejudice and, therefore, not appealable. Generally, a dismissal without prejudice is not an appealable order as it is not a final judgment on the merits. Snelling v. Bleckman, 935 S.W.2d 93,94 (Mo.App.E.D. 1996). However, a dismissal without prejudice for failure to state a claim can be a final appealable judgment. See Hill v. General Motors Corp., 637 S.W.2d 382 (Mo.App. 1982). We find that the dismissal disposed of Bellon's entire cause of action against the Port Authority and, therefore, was a final judgment on the merits and is appealable.
In its sole point on appeal, Bellon asserts that the court erred in granting the Port Authority's motion to dismiss because the petition stated a cause of action pursuant to Section 107.170 RSMo 1986. In determining the sufficiency of a petition which has been successfully challenged by a motion to dismiss, we give the petition its broadest intendment, treat all facts alleged in the petition as true, construe all those allegations liberally and in plaintiff's favor, and then determine if there is any ground upon which plaintiff may be entitled to relief. Knapp v. Junior College Dist. of St. Louis, 879 S.W.2d 588, 589 (Mo.App.E.D. 1994). Bellon's petition may be dismissed for failure to state a claim only if it appears it could not prove any set of facts which would entitle it to relief. Y.G. and L.G. v. Jewish Hosp. Of St. Louis, 794 S.W.2d 488, 494 (Mo.App. 1990). With this standard in mind, we turn to the merits of Bellon's appeal. Section 107.170 RSMo 1986 requires any government entity contracting for public work to secure a bond from the contractor in order to ensure payment to laborers and materialmen for all work and material supplied, whether "by subcontractor or otherwise." Bellon maintains that the court dismissed its cause of action as a result of a misapplication of Section 107.170 RSMo 1986, because the court presumably found that Bellon needed to have privity of contract with the Port Authority in order to state a claim under the statute.
When the court fails to state a basis for a dismissal, we presume the dismissal is based on the grounds stated in the motion to dismiss. Shaven v. Shaven, 913 S.W.2d 443, 444 (Mo.App.E.D. 1996). One of the basis for dismissal, as enumerated in the Port Authority's motion, was that Bellon failed to state a claim on which relief can be granted.
We held in George Weis Co. v. Dwyer, 867 S.W.2d 520, 522 (Mo.App.E.D. 1993), that a failure to allege in plaintiff's petition that recovery cannot be collectible against the contractor is a condition for recovery. Here, the appellant only alleged in its petition that FJ has failed and refused to pay the amount due.Weis citing Austin v. Ransdell, 207 Mo. App. 74, 230 S.W. 334 (1921) and Rupard Asphalt Co., Inc. v. O'Dell, 382 S.W.2d 822 (Mo.App. 1964) asserts that such allegation is insufficient. It is necessary to assert in one's petition that the debt was uncollectable. Such failure to assert such an allegation is fatal.
Therefore, we find that the trial court's judgment to dismiss appellant's cause of action was proper.
Judgment affirmed.
Opinion Summary
Appellant alleges that the trial court erred in granting respondents' motion to dismiss.
AFFIRMED.
Division Two Holds : Under Section 107.170 RSMo 1986 failure of plaintiff to assert facts in its petition that collectibility of the debt of the contractor is unavailing or that the contractor is insolvent, bankrupt or judgment proof fails to state a claim on which relief can be granted. We find the trial court did not err.