United States Court of Appeals

For the Eighth Circuit 

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No. 22-3025

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Emerald Pointe, LLC

 Plaintiff - Appellant

v.

Taney County Missouri; Taney County Planning Commission; Taney County 

Board of Adjustment

 Defendants - Appellees

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Appeal from United States District Court 

for the Western District of Missouri - Springfield

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Submitted: April 12, 2023

Filed: August 15, 2023

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Before SMITH, Chief Judge, MELLOY and ERICKSON, Circuit Judges. 

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MELLOY, Circuit Judge. 
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Emerald Pointe filed this lawsuit under 42 U.S.C. § 1983 for damages incurred

while a stop-work order was in place. The district court1 dismissed the case after 

finding the suit barred by res judicata. Emerald Pointe appeals and we affirm.2

 

I.

In 2008, Taney County, through its Planning Commission, issued Emerald 

Pointe a permit to develop a gated community with private roads. Emerald Pointe 

subsequently began construction of the project. In 2016, the Planning Commission 

issued a stop-work order, demanding Emerald Pointe comply with requirements for 

certain public improvements. Emerald Pointe appealed to the Taney County Board 

of Adjustment (“BOA”), arguing the requirements did not apply to the permit. The 

BOA denied the appeal, and Emerald Pointe filed suit against the Planning 

Commission and BOA in the Circuit Court of Taney County seeking judicial review 

of the stop-work order pursuant to Missouri Revised Statute § 64.870.3 In the state 

suit, Emerald Pointe asked for a preliminary injunction, declaratory relief as to

whether the order was illegal under Missouri state law, and declaratory relief as to 

whether the order violated the procedural and substantive due process clauses of the 

Missouri and U.S. Constitutions. The Circuit Court dismissed the suit for failure to 

1

The Honorable Roseann A. Ketchmark, United States District Judge for the 

Western District of Missouri. 

2

Appellees’ Motion to File Affidavit Re Statement Made at Mediation and 

Appellees’ Motion to Take Judicial Notice are denied as moot. 

3

Mo. Rev. Stat. § 64.870.2 provides in part: 

“Any owners, lessees or tenants of buildings, structures or land jointly or 

severally aggrieved by any decision of the board of adjustment or of the 

county commission, . . . may present to the circuit court of the county in which 

the property affected is located, a petition, duly verified, stating that the 

decision is illegal in whole or in part, specifying the grounds of illegality and 

asking for relief therefrom. Upon the presentation of the petition the court 

shall allow a writ of certiorari directed to the board of adjustment or the county 

commission, . . . . The court may reverse or affirm or may modify the decision 

brought up for review.”
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state a claim, and Emerald Pointe appealed to the Missouri Court of Appeals. The 

Court of Appeals reversed, finding Emerald Pointe’s petition met all the 

requirements for judicial review of the stop-work order. Emerald Pointe, LLC v. 

Taney Cnty. Plan. Comm’n, 578 S.W.3d 390, 398 (Mo. Ct. App. 2019) (Emerald 

Pointe 1). 

On remand, the Circuit Court held a hearing and affirmed the Planning 

Commission’s decision. Emerald Pointe appealed, and the Court of Appeals reversed

and remanded the case to the Circuit Court with directions that the Circuit Court 

remand to the BOA to grant Emerald Pointe’s appeal of the stop-work order. 

Emerald Pointe, LLC v. Taney Cnty. Plan. Comm’n, 621 S.W.3d 188, 196 (Mo. Ct. 

App. 2021) (Emerald Pointe 2). The Circuit Court entered an order on May 20, 2021, 

remanding the case to the Board. Emerald Pointe asserts the stop-work order was 

vacated the day the Circuit Court entered its order. 

Nearly nine months after the Circuit Court entered its order, Emerald Pointe 

filed a motion in the Circuit Court to amend the complaint to include Taney County 

as a party and to seek damages under 42 U.S.C. § 1983. The Circuit Court denied 

the motion to amend, finding it lacked jurisdiction because the May 2021 order was 

final. Emerald Pointe appealed once again, and on the third appeal, the Court of 

Appeals affirmed, finding the May 2021 order was final and the motion to amend 

was untimely. Emerald Pointe, LLC v. Taney Cnty. Plan. Comm’n, 660 S.W.3d 482, 

488–89 (Mo. Ct. App. 2023) (Emerald Pointe 3). 

After the Court of Appeals decided Emerald Pointe 2, but before Emerald 

Pointe filed the motion to amend its state court complaint, Emerald Pointe filed this 

case in federal district court against the County, Planning Commission, and BOA 

seeking damages under 42 U.S.C. § 1983 for costs incurred while the stop-work 

order was in place. After filing their answer in this federal case, defendants filed a 

motion for summary judgment based on res judicata. Defendants also filed a motion 
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for leave to amend their answer to include res judicata and a motion to dismiss 

pursuant to the Colorado River Doctrine.4

 

At the district court, Emerald Pointe argued against summary judgment for 

two reasons: (1) res judicata was waived when not pleaded in the answer, and (2) 

res judicata did not apply to the facts of this case. The district court rejected both 

arguments, granted the motion for summary judgment based on res judicata, and 

denied as moot the motion to amend and the motion to dismiss pursuant to the 

Colorado River Doctrine. 

II.

“We review de novo a district court’s grant of summary judgment. Reviewing 

‘the record in the light most favorable to the nonmoving party,’ we will affirm the 

grant of summary judgment ‘if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.’” 

Lieffort v. Dakota, Minnesota & Eastern R.R. Co., 702 F.3d 1055, 1057–58 (8th Cir. 

2013) (citations omitted). 

A.

Emerald Pointe argues res judicata was waived because defendants did not 

plead res judicata in their answer. We disagree. Because res judicata is an 

affirmative defense, a party asserting res judicata must generally do so in the answer. 

See Fed. R. Civ. Pro. 8(c). However, this court has held “[a]s long as ‘an affirmative 

defense is raised in the trial court in a manner that does not result in unfair surprise, 

4

Defendants argued the federal court should decline to exercise jurisdiction 

due to the ongoing state case. Generally, “[f]ederal courts . . . have a virtually 

unflagging . . . obligation to exercise the jurisdiction given to them, even when there 

is a pending state court action involving the same subject matter.” Cottrell v. Duke, 

737 F.3d 1238, 1244 (8th Cir. 2013). However, “[i]n Colorado River Water 

Conservation District v. United States, the United States Supreme Court held that 

exceptional circumstances may permit a federal court to refrain from hearing a case 

and instead defer to a concurrent, parallel state-court proceeding.” Id. at 1240. 
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technical failure to comply with Rule 8(c) is not fatal.’” Crutcher v. MultiPlan, Inc., 

22 F.4th 756, 766 (8th Cir. 2022) (citation omitted). Emerald Pointe argues the delay 

in filing the motion resulted in unfair surprise because the motion was filed on the 

last day of discovery. Emerald Pointe, however, requested neither additional 

discovery nor additional time to respond to the motion for summary judgment. The 

record contained all relevant information about the state court proceedings. We 

conclude the timing of the filing did not result in an “unfair surprise.” 

Further, addressing the merits of res judicata in this case is in line with the 

purpose of res judicata. A court may dismiss a case based on res judicata sua sponte

because such a “result is fully consistent with the policies underlying res judicata: it 

is not based solely on the defendant’s interest in avoiding the burdens of twice 

defending a suit, but is also based on the avoidance of unnecessary judicial waste.” 

Arizona v. California, 530 U.S. 392, 412 (2000) (citation omitted). Addressing the 

merits of res judicata in this case helps avoid judicial waste. 

B.

Emerald Pointe argues even if res judicata was not waived it does not apply 

to this case. We disagree. We apply Missouri res judicata law because the final 

judgment was issued by a Missouri court. Brown v. Kansas City Live, LLC, 931 

F.3d 712, 714 (8th Cir. 2019). Under Missouri law, “[r]es judicata bars relitigation 

of a claim adjudicated and ‘every point properly belonging to the subject matter of 

litigation and which the parties, exercising reasonable diligence, might have brought

forward at the time.’” LaBlance v. Director of Revenue, 658 S.W. 3d 505, 508–09 

(Mo. 2022) (en banc) (citation omitted). Additionally, Missouri requires four 

identities be met before res judicata can apply: “1) [I]dentity of the thing sued for; 

2) identity of the cause of action; 3) identity of the persons and parties to the action; 

and 4) identity of the quality of the person for or against whom the claim is made.” 

LaBlance, 658 S.W. 3d at 509 (citation omitted). Emerald Pointe argues: (1) the 

§ 1983 claim could not have been brought in the state court case and (2) the “thing 

sued for” and “cause of action” identities are not met. 
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Emerald Pointe could have brought the § 1983 claim in the state court case. 

Emerald Pointe argues a § 1983 claim could not have been added to the request for 

judicial review of the stop-work order under Missouri Revised Statute § 64.870.

Section 64.870 is the exclusive remedy for challenging the issuance of a stop-work 

order. However, nothing precludes a plaintiff from adding an additional claim to the 

state court case for judicial review. See Mo. Sup. Ct. R. 55.06(a) (“A party asserting 

a claim to relief as an original claim, counterclaim, cross-claim, or third-party claim 

may join, either as independent or as alternate claims, as many claims, legal or 

equitable, as the party has against an opposing party.”). A Missouri Circuit Court is 

a court of general jurisdiction. See Mo. Rev. Stat. § 478.070. We find Missouri law 

permits Emerald Pointe to add a § 1983 claim to the case for judicial review of the 

order. 

In this regard, Emerald Pointe argues a Missouri Supreme Court case, Gash 

v. Lafayette Cnty., 245 S.W.3d 229 (Mo. 2008) (en banc), precludes courts hearing 

requests for judicial review under § 64.870 from hearing other related claims for 

relief. In Gash, the Missouri Supreme Court held the Circuit Court could not issue a 

declaratory judgment on the legality of a zoning order because Missouri law 

specifies legal challenges to such zoning orders should be through “a writ of 

certiorari directed to the board of adjustment or the county commission[.]” Id. at 232 

(citation omitted). The decision in Gash is limited to the Circuit Court’s ability to 

issue a declaratory judgment about the legality of a zoning order and does not speak 

to the Circuit Court’s general jurisdiction to hear separate claims for other remedies. 

Next, Emerald Pointe argues that two of the four identities required for res 

judicata are not met. No party argues identity of “person and parties to the action” 

or “quality of the person for or against whom the claim is made” is lacking. Rather, 

Emerald Pointe argues identity of “things sued for” and identity of “cause of action” 

are missing. 

We find the identity of “things sued for” is met. The Missouri Supreme Court 

“has alternatively articulated identity of ‘the thing sued for’ as identity of the ‘subject 
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matter of the suit.’” LaBlance, 658 S.W. 3d at 509 (citation omitted). While the 

Missouri Supreme Court has not clearly defined the “thing sued for” in the context 

of the four identities, it has held that the definition of “the ‘thing’—the claim or 

cause of action—that has previously been litigated . . . centers on ‘facts’ that form 

or could form the basis of the previous adjudication.” Chesterfield Vill., Inc. v. City 

of Chesterfield, 64 S.W.3d 315, 318 (Mo. 2002) (en banc) (citations omitted). 

Emerald Pointe argues that the subject matter of the state court case was the writ 

action to have the stop-work order declared illegal, unconstitutional, and void while 

the subject matter of the federal case is financial relief under § 1983. 

The distinction drawn by Emerald Pointe is not a distinction of subject matter. 

The “thing sued for,” or the subject matter, of both cases included a finding that the 

stop-work order was unconstitutional. Emerald Pointe argued the stop-work order 

was unconstitutional in both the state case and in this federal case. Missouri law does 

not require the first court to have addressed the merits of the claim. Instead, res 

judicata “applies not only to points and issues upon which the court was required by 

the pleadings and proof to form an opinion and pronounce judgment, but to every 

point properly belonging to the subject matter of litigation and which the parties, 

exercising reasonable diligence, might have brought forward at the time. King Gen. 

Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 

S.W.2d 495, 501 (Mo. 1991) (en banc). Accordingly, we conclude the “thing sued 

for” in both cases included a finding that the stop-work order violated the U.S. 

constitution. 

We also find identity of the “cause of action” is met. Under Missouri law, a 

“cause of action” is “a group of operative facts giving rise to one or more bases for 

suing[.]” Chesterfield Vill., Inc., 64 S.W.3d at 318 (citations omitted). Emerald 

Pointe argues the “cause of action” identity is not met for two reasons. 

First, Emerald Pointe argues the claims in the state and federal cases have 

different elements. This distinction does not show there are different “causes of 

action” in the two cases. Under Missouri law, “[s]eparate legal theories are not to be 
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considered as separate claims, even if ‘the several legal theories depend on different 

shadings of the facts, or would emphasize different elements of the facts, or would 

call for different measures of liability or different kinds of relief.’” King Gen. 

Contractors Inc., 821 S.W. 2d at 501 (citation omitted). 

Second, Emerald Pointe argues the “cause of action” identity is not met 

because the facts are different in the state and federal cases. Specifically, Emerald 

Pointe argues the federal case has more facts detailing alleged damages that were 

unknown when the state case was filed. Emerald Pointe’s argument in this regard is 

inconsistent with a Missouri Supreme Court opinion which held the fact that a 

plaintiff did not know specifics of damages when the first suit was filed “is of little 

importance[]” to the res judicata determination. Chesterfield Vill., Inc., 64 S.W.3d 

at 320. The Missouri Supreme Court has instead held “[a]n injured party . . . can 

assert a claim for damages even though the party may not know precisely the nature 

and extent of the injury.” Id. Accordingly, we conclude the “cause of action” in both 

cases is the same: a challenge to the issuance of the stop-work order. 

III.

We affirm the district court’s grant of summary judgment based on res 

judicata and the denial of the other two motions as moot. 

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