_____________ No. 95-1235EM

_____________ Cynthia J. McNeill, formerly * known as Cynthia J. Franke, * * Appellant, * * v. * * William E. Franke, doing * business as Gannon Partnership * 19, L.P.; Gannon Partnership * 19, L.P.; Kevin W. Kelly; * Pentad Properties, Inc. * formerly known as Kemmons * Wilson Properties, Inc., doing * business as St. Louis Associates* Appeal from the United States Limited Partnership, formerly * District Court for the Eastern known as St. Louis Associates, * District of Missouri. Ltd.; St. Louis Associates * Limited Partnership, formerly * known as St. Louis Associates, * Ltd.; Phillip J. Paster; * Department of Housing and * Urban Development, agent Jack * Kemp; West Pointe Limited * Partnership; Northwest Village * Limited Partnership; Grandview * Hills Limited Partnership; Park * Ridge Apartments Limited * Partnership; Lamplite Limited * Partnership, * * Appellees. *

_____________ Submitted: December 11, 1995 Filed: May 29, 1996

_____________ Before FAGG, HEANEY, and WOLLMAN, Circuit Judges.

_____________ FAGG, Circuit Judge.
Cynthia J. McNeill appeals the district court's dismissal of

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her action for declaratory relief and judicial f oreclosure, and the denial of her motion for summary judgment. We reverse the dismissal and remand for further proceedings.
This case involves a $57.3 million p romissory note and deed of trust allocatedbetween McNeill and her former spouse, William E. Franke, in a February1988 Missouri divorce decree. The note was on the sale of five apartment complexes t o St. Louis Associates, Ltd. (SLA). A deed of trust
on t he apartments secured the note's repayment. In turn, Franke an d McNeill owed almost $40 million on an insurance company loan and industria l bond s. The divorce decree awarded McNeill a 20% undivided ownershi p interest in the note as a tenant in common with Franke. W.E.F. v. C.J.F. , 793 S.W.2d 446, 459 (Mo. Ct. App. 1990). The decree stated McNeill' s interest extended to all rights of ownership in the apartments in the case of for eclosure. Thus, McNeill's 20% interest included the securit y providedby the deed of trust. The decree ordered the parties to divide receipts o f principal and interest on the note in proportion to thei r perce ntage interests, after making payments on the underlying debt

. Because on its face the note was payable only to Franke, the decree ordere d Fran ke to pay McNeill 20% of the net principal and interest payment s received each month. The divorce decree prohibited Franke and McNeill fro m changing the note's terms and conditions, including the provisions about the amount, terms, and method of payment, without each other's writte n consent. McNeill filed a notice with the appropriate deed recorder to war n all persons of her ownership interests in the note, deed of trust, an d apartment complexes.
Despite the divorce decree's terms, Franke never paid McNeill an y part of the monthly note receipts. In addition, between November 1988 and February 1989, Franke refinanced all indebtedness on the property without McNeill's consent. A s part of the refinancing transactions, record title to the apartments was transferred from SLA to five limited partnerships, for which SLA

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was the sole limited partner. The partnerships obtained a new loan from
a predecessor in interest to the Department of Housing and Urba n Development (HUD), and the underlying debt was paid off. Franke signe d deeds of release stating the apartment complexes no longer secured th e note's repayment, and deeds of trust on the apar tment complexes were given to HUD's predecessor to secure the new loan. As part of the refinancing, Gannon Management Company of Missouri, a company owned by Franke, wa s awarded a twenty-year contract to manage the apartment complexes.

To enforce Franke's payment obligation under the divorce decree , McNeill sued Franke for contempt, and in Februar y 1992, a state court held Franke wilfully violated the decree by failing to turn over McNeill's shar e of the note receipts and by refinancing the note without McNeill's consent

. The court held Franke in contempt, but stated Franke could purge hi s contempt by paying McNeill her share of the receipts before refinancing, plus $ 20,000 a month until McNeill had received the value of her 20 % interest in the note after refinancing, estimate d by Franke at $2,472,838. Franke has failed to make all the required monthly payments.

The f ive limited partnerships that bought the apartment complexe s from SLA filed for voluntary bankruptcy. Franke proposed a reorganization plan that was eventually accepted and confirmed by the bankruptcy court in June 1992 . As a result, Gannon Partnership 19, L.P. (GP19), a Missour i limited partnership in which Franke is the sole general partner, was given title to the apartments.
In October 1992, McNeill brought this action against the partie s with claims to the apartment complexes: the current titleholder of the apartmen t complexes, GP19; the sole general partner of GP19, William Franke; th e fo rmer titleholders, SLA, West Pointe Limited Partnership, Northwes t Vill age Limited Partnership, Grandview Hills Limited Partnership, Par k Ridge Apartments Limited Partnership, and Lamplite Limited Partnership; th e two general

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partners of SLA and the limited partnerships, Kevin W. Kelly and Penta d Properties, Inc.; the trustee under the deed of trust, Phillip J. Paster; and the current lienholder, HUD. See 28 U.S.C. § 2410(a) (1994) (providin g federal jurisdiction over actions affecting property on which the United Sta tes has a lien). McNeill seeks a declaratory judgment that th e appellees' claims to the property are subordinate to her rights, title, an d interests under the note and deed of trust. McNeill also seeks judicial foreclosure on the property to collect her 20% s hare of the balance due on the note, as if the refinancing transactions had not occurred. Th e district court conclu ded McNeill was seeking to relitigate claims decided in the contempt proceeding, and thus dismissed t he action as res judicata. At the same time, the district court denied McNeill's summary judgmen t motion as moot.

On app eal, McNeill asserts neither res judicata nor collatera l estoppel bars this lawsuit. We must give the same preclusive effect to th e Missouri contempt jud gment that a Missouri court would give the judgment. 28 U.S.C. § 1738 (1994); Kremer v. Chemical Constr. Corp. , 456 U.S. 461, 466 (1982). Under Missouri law, res judicata, also known as clai m preclus ion, bars the same parties from relitigating the same cause o f action. Oates v. Saf eco Ins. Co. of Am. , 583 S.W.2d 713, 719 (Mo. 1979); Curnutt v . Scott Melvin Transp. Inc. , 903 S.W.2d 184, 191 (Mo. Ct. App

. 1995). The doctrine applies when four things are the same in bot h lawsuits: the subject matter, the cause of action, the parties, and the status in which the defendant is sued. King Gen. Contractors, Inc. v

. ReorganizedChurch of Jesus Christ of Latter Day Saints , 821 S.W.2d 495, 501 (Mo. 1991); Barkley v. Carter County State Bank , 791 S.W.2d 906, 910 & n.4 (Mo. Ct. App. 1990). When two lawsuits present the same cause o f action, res judicata precludes consideration of matters that were actually decided and matters that could properly have been raised and decided in th e earlier lawsuit. Curnutt , 903 S.W.2d at 191; se e King , 821 S.W.2d at 501. Collateral estoppel, also known as issue preclusion,

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preve nts a party from relitigating the same precise issue. Oates , 58 3 S.W.2d at 719; King , 821 S.W.2d at 500.

We conclude res judicata does not preclude litigation of thi s lawsuit. First, the contempt lawsuit did not present the same cause o f action as this lawsuit. Although the refinancing transactions are a commo n fact in bot h lawsuits, the suits do not "arise out of the same act , contract or transacti on" or require the same "parties, subject matter and evidence" to sustain the claims. King , 821 S.W.2d at 501. The contempt lawsuit was an action to enforce the divorce decree against McNeill' s former husband, and this lawsuit is an action to enforce the note and deed of tr ust against later lienholders and titleholders. The issue in th e conte mpt lawsuit was whether Franke's refinancing transactions wilfull y violated the language of the divorce decree, andthe issue in this lawsuit is the legal effect o f the refinancing transactions on McNeill's property rights, which depends on a tenant in common's ability to convey property interes ts without the consent of a cotenant under state property law

. Contrar yto the appellees' assertion, McNeill does not merely seek t o relitigate the value of her interest in the deed of trust, but instead ask s the co urt to decide the legal status of her security interest in th e apartments, and the priority of her interest versus the interests of the later titleholders and lienholders.

We reject the appellees' assertion that the contempt court decide d McNeill's interest in the deed of trust was lega lly released as a lien and is no long er enforceable. The contempt order did not alter McNeill' s ownership interest re ceived in the divorce decree. Instead, the contempt court simply stated that by executing the deeds of release, Franke allowed the refinancing to oc cur and thereby violated the divorce decree's terms. Th e divorce decree established McNeill's ownership interest, McNeil l recordedher interest with the deed recorder, and the Missouri Court o f Appeals affirmed the award of her ownership interest. In affirming

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the award, the Missou ri Court of Appeals noted the divorce decree created
a tenancy in common ownership, which could not be alienated by eithe r party's sole action. W.E.F. v. C.J.F. , 793 S.W.2d at 459. Thus, neither the contempt order nor Franke's attempt to convey the apartments without McNeill's consent displaced McNeill's ownership interest.

Second, t he contempt lawsuit did not involve most of this lawsuit's defendants, who are necessary parties to the pro perty issues, and the only
commondefendant, Franke, is not sued in the same capacity in bot h lawsuits. In the contempt proceeding, McNeill s ued Franke individually as a party to the divorc e judgment. In this lawsuit, Franke is sued only as the sole general part ner of the apartment complexes' current owner, GP19. Because at least two res judicata requirements are not satisfied, th e doctrine does not bar this lawsuit. Barkley , 791 S.W.2d at 910, 913.
As for collateral estoppel, the doct rine is inapplicable because the iss ues in this lawsuit are not identical to the issues decided in th e contempt proceeding. Oates , 583 S.W.2d at 719.

McNeill also contends the district court should have granted he r motion for summary ju dgment because the appellees' response to her motion
was i nadequate. The appellees filed a motion to stay consideration o f summary judgment pending discovery, however, andthe district court denied the summary judgment as moot because of the dismissal. Having reversed th e dismissal that mooted McNeill's summary judgment motion, we leave McNeill' s summary judgment motion to the district court's consideration on remand.
We thus reverse and remand for further proceedings.

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Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.