1

 

 

 

 

 

 

 

 

 

ROBERTS HOLDINGS, INC., ) 

 ) 

 Plaintiff-Appellant, ) 

 ) 

vs. ) No. SD32757 

 ) 

BECCA'S BARKERY, INC., ) Filed: March 13, 2014 

STEVEN KALCH, and REBECCA ) 

E. KALCH, ) 

 ) 

 Defendants-Respondents. ) 

APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY 

Honorable William E. Hickle, Circuit Judge 

AFFIRMED

 Roberts Holdings, Inc. ("Appellant") appeals the dismissal of its suit in replevin to 

acquire possession of certain baking equipment alleged to be currently possessed by Becca's 

Barkery, Inc. ("Becca's Barkery"), Steven Kalch, and Rebecca E. Kalch ("Respondents") in 

Texas County. The case was dismissed under Rule 52.04(b) for an inability to join 

indispensable parties "without prejudice to the refiling of [Appellant's] claims in the 

Superior Court of Spokane County, Washington."1

 

 

1

 The relevant portions of Rule 52.04 provide: 

(a) Persons to Be Joined if Feasible. A person shall be joined in the action if: (1) in the 

person's absence complete relief cannot be accorded among those already parties, or (2) the 

person claims an interest relating to the subject of the action and is so situated that the 
2

The trial court found that the dispute arose from "a failed business enterprise" 

between two families -- "[t]he Kalch family . . . and the Roberts family" -- and that "a joint 

venture agreement" ("Joint Venture Agreement") "obligated [DKS Ventures, LLC ("DKS")] 

to furnish the manufacturing equipment at no cost to the Kalches." In return, DKS obtained 

"the partial ownership of Becca's Barkery[.]" The trial court found that "Kevin Roberts, 

[Dave] Roberts[,2] and Stuart Roberts are the principals of three companies involved in 

performing the various parts of the . . . business arrangement [involving Respondents]: 

[DKS], Total Baking Solutions, LLC [("Total Baking Solutions")], and [Appellant]." The 

trial court found that "because the transaction was carried out by several closely related 

business entities, orderly justice is only possible if all claims and parties are joined for 

hearing before one judge in one courtroom." 

The trial court further found that the United States District Court for the Western 

District of Missouri had previously determined that, "based on a forum selection clause 

contained in the joint venture agreement[,]" "the state of Washington had exclusive 

 

disposition of the action in the person's absence may: (i) as a practical matter impair or 

impede the person's ability to protect that interest or (ii) leave any of the persons already 

parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent 

obligations by reason of the claimed interest. If the person has not been joined, the court 

shall order that the person be made a party. If the person should join as a plaintiff but refuses 

to do so, the person may be made a defendant. 

(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in 

Rule 52.04(a)(1) or Rule 52.04(a)(2) cannot be made a party, the court shall determine 

whether in equity and good conscience the action should proceed among the parties before it 

or should be dismissed, the absent party being thus regarded as indispensable. The factors to 

be considered by the court include: (i) to what extent a judgment rendered in the person's 

absence might be prejudicial to that person or those already parties; (ii) the extent to which 

by protective provisions in the judgment, by the shaping of relief, or other measures, the 

prejudice can be lessened or avoided; (iii) whether a judgment rendered in the person's 

absence will be adequate; and (iv) whether the plaintiff will have an adequate remedy if the 

action is dismissed for nonjoinder. 

All rule references are to Missouri Court Rules (2013). All statutory references are to RSMo 2000. 

2

 In the instant case, there are references to "David Roberts," "David W. Roberts," and "Dave Roberts" in the 

pleadings and attached documents. We understand the references to be to the same person, and for 

consistency, we will refer to "Dave Roberts" in accordance with the documents attached to Appellant's petition. 
3

jurisdiction over the dispute[.]" As a result, the trial court found that it was "precluded" 

from hearing all claims and that "the only remaining forum [able] to fully dispense justice is 

that of the Superior Court of Spokane County, Washington." 

In three points relied on, Appellant contends "[t]he trial court erred in dismissing 

[Appellant's] petition under [Rule] 52.04(b) because": (1) "the parties sought to be joined by 

Respondents are not necessary under Rule 52.04(a)" as "the only issue in a replevin action is 

the right of the plaintiff to possess the personal property at issue"; (2) "the trial court failed 

to articulate the grounds for dismissal under the four[-]part test required under" Rule 

52.04(b); and (3) Texas County "is the only appropriate venue for replevin in that no other 

court can offer the remedy of replevin[.]" Finding no merit in any of these contentions, we 

affirm the dismissal. 

Facts and Procedural Background 

Because the trial court dismissed Appellant's action based solely upon the pleadings 

and documents attached to them, we take our factual background from the legal file, 

including Appellant's petition ("the replevin petition"), documents attached to the replevin 

petition, Appellant's "MOTION TO STRIKE [RESPONDENTS'] COUNTER 

PETITION AND [RESPONDENTS'] MOTION TO JOIN ADDITIONAL PARTIES" 

("the motion to strike"), and an order issued by the United States District Court for the 

Western District of Missouri that was incorporated into the motion to strike. 

The Kalches reside in Missouri and own Becca's Barkery, "a business that produces 

dog biscuits, dog foods, and related products." The Roberts are "the principals of [DKS] and 

[Total Baking Solutions]."3 In May 2010, Kevin Roberts drafted the "Joint Venture 

Agreement" in which "DKS agreed to lease equipment from Total Baking Solutions for a 

 

3

 DKS is incorporated in Washington. Total Baking Solutions is incorporated in Ohio. 
4

period of five years and provide that equipment to Becca's Barkery. After five years, title to 

the equipment would be transferred to Becca's Barkery." In return, the Kalches "agreed to 

transfer [to] DKS a 49% ownership interest in Becca's Barkery." The Joint Venture 

Agreement contained a forum selection clause which required any litigation concerning the 

agreement to be maintained in "Superior Court, Spokane County, Washington." 

In September 2010, Appellant agreed to lease "certain baking equipment" ("the 

bakery equipment") to DKS under a written lease agreement ("the Lease"). A copy of the 

Lease was attached to the replevin petition as Exhibit A. The Lease was for a five-year 

term, "commencing on September 1, 2010[,]" and required DKS to make lease payments of 

$10,000 per month to Appellant.4 DKS gave Appellant a "continuing security interest in the 

bakery equipment." Appellant alleged that "[d]uring 2010[,]" it provided the bakery 

equipment to DKS and DKS then provided it to Respondents. The Lease was signed only 

by Dave Roberts, who signed it on behalf of Appellant as lessor and on behalf of DKS as 

lessee. The Lease provided that in the event of default, Appellant "may enter [DKS's] 

premises and, without court order or other process of law, repossess and remove equipment 

either with or without notice to [DKS]." Additionally, the Lease required DKS, "[u]pon 

demand following a default," "to fully cooperate and assist [Appellant] in recovering the 

equipment from any Third-party through the rights afforded by the Security Agreement and 

applicable law." The Lease also had a provision that required any disputes involving the 

 

4

 There appears to be some dispute over the identification of the baking equipment installed in Becca's

Barkery. In a request for admissions, Appellant requested that Mrs. Kalch and Becca's Barkery admit that 

"equipment specified on Exhibit 'B' was delivered to" Becca's Barkery. The response in [BECCA'S 

BARKERY'S] RESPONSE TO PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS" stated that "most 

of the equipment delivered to Becca's Barkery did not contain serial numbers, or serial numbers that 

are different than those contained in 'Exhibit B[.]'" For its part, Appellant does not contend that it claims 

different baking equipment than that claimed by DKS. 
5

Lease or the bakery equipment to be litigated in Spokane County, Washington Superior 

Court. 

A "Security Agreement" ("the Security Agreement") was attached to the replevin 

petition as Exhibit B. The Security Agreement was also executed solely by Dave Roberts -- 

on behalf of Appellant as the secured party and on behalf of DKS as the debtor. The 

Security Agreement provided that the debtor's rights were those "under the Uniform 

Commercial Code in force in the State of Washington at the date of th[e] Security 

Agreement." The petition also incorporated a December 21, 2010 "UCC1 Initial Filing" 

form listing Appellant as the secured party and both Dave Roberts and Becca's Barkery as 

debtors. The Security Agreement covered "All equipment listed on Exhibit A attached 

hereto." No such exhibit to the Security Agreement was included in the legal file. The 

replevin petition avers that "[d]uring 2010 the [bakery] equipment was provided by 

[Appellant] to DKS wh[ich] then allowed [Respondents] to use it and it was installed in their 

business location in Texas County." DKS never made any lease payments to Appellant. 

In May 2011, the Kalches filed suit in Texas County against DKS, the Roberts, and 

Total Baking Solutions. The defendants removed the case to federal court. The Kalches' 

amended complaint sought relief on seven counts, including one for fraudulent inducement 

and another for fraud. The defendants then successfully moved that the Kalches' amended 

complaint be dismissed based upon the forum selection clause contained in the Joint Venture 

Agreement. The United States district court found "that the agreed-upon forum selection 

clause should be enforced and that Washington has exclusive jurisdiction over this dispute" 
6

and observed that the defendants had "state[d] that there [wa]s already a case pending 

between the parties in Washington."5

 

In June 2012, Appellant filed the instant action against Respondents in two counts. 

Count I sought replevin of "certain baking equipment" that DKS leased from Appellant in 

September 2010 and "$10,000 per month" as damages for detention of the bakery 

equipment.6

 Respondents' answer asserted that under the Joint Venture Agreement, DKS 

was to lease the baking equipment from Total Baking Solutions, and Respondents included a 

counter-petition seeking money damages for "false representations" made by Appellant. 

Respondents also filed a "MOTION TO COMPEL JOINDER OF PERSONS 

NEEDED FOR JUST ADJUDICATION" ("motion for joinder") to compel the addition of 

 

5

 The judgment in the instant case states 

[DKS] had filed an action against the Kalches in Spokane County Superior Court on May 24, 

2011, several weeks after [DKS] had been sued in Missouri. The Kalches removed the 

Spokane County case to federal court, where it was pending at the time of [the dismissal of 

the case in the United States District Court for the Western District of Missouri]. After the 

dismissal of the Missouri claims [in the Missouri federal case], [DKS] moved to remand the 

federal case pending in Washington state back to Spokane County, again based on the forum 

selection clause of the joint venture agreement . . . . [and the federal court in Washington 

remanded that case] to Spokane County Superior Court. [The federal court in that case] 

specifically permitted the filing by the Kalches of their Missouri claims upon remand of the 

case to Spokane County Superior Court in the following language of [the] order, p. 13: 

"Accordingly, The Court grants DKS's motion to remand this lawsuit to Spokane County 

Superior Court, where Mrs. Kalch may assert her Missouri claims as compulsory 

counterclaims." 

However, it appears that the Kalches were initially denied leave to amend their answer to assert 

counterclaims and a third-party complaint in the matter in Spokane County Superior Court. The 

judgment in the instant case went on to observe that 

the suit pending in Spokane county consists only of the claim by DKS against the Kalches. 

Meanwhile, the Kalches have been forbidden to bring any of the claims that they have 

against any of the Roberts family members or any of the Roberts entities, contrary to [the 

Washington federal court] order. 

Appellant asserts in its brief that the Washington state case is pending and that "the Kalches have 

asserted their counterclaims" but it does not cite a page in the record as supporting that claim. At oral 

argument, counsel for the parties indicated that the Kalches have been permitted to assert their 

counterclaims in the Spokane county action. 

6

 Count II, which sought damages for unjust enrichment or quantum meruit, was later voluntarily dismissed by 

Appellant. 
7

DKS, Total Baking Solutions, and the Roberts to the instant action as "indispensable 

parties[.]" Respondents alleged that "[t]he additional parties are indispensable because 

[Appellant's] cause of action is based upon a contract between DKS and [Appellant, and 

Respondents] have claims against these additional parties who were a part of this 

transaction, said claims that are compulsory." 

Appellant's motion to strike claimed that the "contract" underlying Respondents' 

counter-petition included a forum selection clause placing "'[e]xclusive jurisdiction and 

venue . . . in the Superior Court, Spokane County, Washington.'" Appellant asserted that 

"[t]here is another action pending between the parties in the state of Washington[,] pending 

in the Spokane County Superior Court, Cause No. 2011-02-02145-3 and [it] continues on 

the issues surrounding the contract, now asserted by [Respondents] in this action." 

Appellant alleged that its replevin action "has nothing to do with the contract alleged by 

[Respondents]." Appellant's motion to strike also referred to the order from the United 

States District Court for the Western District of Missouri and stated that "[Respondents] are 

barred by the doctrine of collateral estoppel as to those issues [against DKS, the Roberts, 

and Total Baking Solutions] in bringing the action in this forum." 

In September 2012, Appellant moved for summary judgment and, inter alia, filed a 

supporting affidavit from Dave Roberts. The affidavit stated that Appellant leased "certain 

baking equipment" to DKS, that DKS "allowed [Respondents] to take possession of the 

bakery equipment and to start using same[,]" and that Appellant "was, and is, the owner of 

the bakery equipment . . . [which] remains in [Respondents'] possession." 

Respondents opposed the motion for summary judgment, and the matter was set for 

hearing in February 2013. On the day of the hearing, Respondents provided the trial court 
8

with copies of documents from the Washington litigation: the complaint filed in May 2011 

in Washington Superior Court; the October 2011 order from the United States District Court 

for the Eastern District of Washington granting remand after argument; a "Motion for Leave 

to Amend Answer" filed in January 2013 in Washington Superior Court; the Washington 

Superior Court's February 2013 "Order Denying Defendants' Motion for Leave to Amend 

Answer," and a "Verbatim Report of Proceedings" from February 2013 in Washington 

Superior Court. Respondents also provided their amended complaint filed in the United 

States District Court for the Western District of Missouri and the order that subsequently 

dismissed that action. 

In the complaint DKS filed in Washington Superior Court, DKS alleged that it 

"agreed to [provide] production equipment for use by [Becca's Barkery,] along with 

installation and initial start-up of the equipment[,]" and that the Kalches "refus[ed] to 

comply with their obligations under the Joint Venture Agreement[.]" DKS further alleged 

that the Kalches "continue to possess and use the equipment that DKS provided to produce 

product and income" and that the Kalches' "actions constitute conversion of the personal 

property belonging to DKS without lawful right." Among other remedies, DKS sought a 

judgment "declaring that DKS shall be provided access to and entitled to remove its property 

(replevin)." 

In March 2013, the trial court denied Appellant's motion for summary judgment. It 

also took up Respondent's motion for joinder and found 

that the claims against the proposed additional parties are inextricably 

intertwined with the claim by [Appellant] in the instant case. However, the 

addition of the proposed additional parties is precluded by the federal court 

rulings requiring that the litigation of any claims against such parties take 

place in the Superior Court of Spokane County, Washington. 
9

The trial court noted, however, that the parties' argument had not addressed whether 

Appellant's petition should be dismissed under Rule 52.04(b) and set a hearing at which the 

parties would be expected to address that question. 

 Although we cannot locate a docket entry indicating that Respondent had filed a 

motion to dismiss based upon Rule 52.04(b), Appellant filed both "SUGGESTIONS IN 

OPPOSITION TO DISMISSAL PURSUANT TO RULE 52.04(B)" and a "RESPONSE 

TO [RESPONDENTS'] MOTION TO DISMISS[.]" In the latter pleading, Appellant 

responded, inter alia, that "the Washington Court has been asked to review the issue of 

replevin for declaratory purposes between DKS and [the] Kalch[es]," but Appellant 

maintained that that fact did not conflict with "its right to possession be[ing] tested as to 

[Respondents] for baking equipment in Missouri." 

 During the argument on the motion to dismiss, "[c]ounsel for [Respondents] 

consented to personal jurisdiction over all [Respondents] by the Superior Court of Spokane 

County, Washington with respect to the claims now asserted by [Appellant]." In May 2013, 

the trial court entered its order dismissing the instant case without prejudice, noting that it 

had heard argument from the attorneys and had "review[ed] the entire file as well as 

correspondence and suggestions submitted by the parties after the April 3, 2013 hearing." 

The trial court found that "[alt]hough the Roberts argued in Missouri courts that the claims 

of the Kalches could only be heard in Spokane County, their position reversed once the 

Kalches sought to file their claims there." The trial court pointed to DKS's objection to the 

Kalches' motion to file an amended complaint, and the Washington court's denial of "the 

addition of the claims previously dismissed in Missouri in favor of Spokane County." The 

trial court stated that it was 
10

concerned by the possibility that only one side of the competing litigants will 

have claims heard, but there is simply nothing that the [trial court] can do 

about it. Two federal courts have now specifically held that the claims by the 

Kalches cannot be brought in Missouri. Two federal courts have held that 

those claims must instead be brought in the Superior Court of Spokane 

County, Washington. Neither federal court order has been appealed by any 

party, and thus the [trial court] in Missouri is collaterally estopped from 

hearing any of the claims by the Kalches. 

 

 The trial court also found that "[a]s Missouri has been precluded from serving as that 

forum, the only remaining forum to fully dispense justice is that of the Superior Court of 

Spokane County, Washington." The trial court observed that if the final judgment is 

favorable to Appellant in Washington Superior Court on the replevin claim, then that 

judgment "can easily be registered as a foreign judgment in Missouri using the accelerated 

procedures contained in section 511.760[.]" The trial court concluded, after considering the 

four factors set forth in Rule 52.04(b), "that in equity and good conscience the instant action 

should not be allowed to proceed in the [trial court]." 

 No motion to amend the judgment was filed, and this appeal timely followed its 

entry.7

 

Applicable Principles of Review and Governing Law 

 We first consider whether the judgment may be appealed because it dismissed the 

case without prejudice. Generally, an order dismissing a case without prejudice is not final 

for purposes of appeal, State ex rel. Nixon v. Summit Inv. Co., 186 S.W.3d 428, 432 (Mo. 

App. S.D. 2006), but there are exceptions to that rule. Id. at 433. One such exception arises 

"where the dismissal has the practical effect of terminating the litigation in the form cast or 

 

7

 After Appellant's notice of appeal was filed, this court issued an order to show cause why the appeal should 

not be dismissed because it was taken from an order not denominated as a "judgment" or "decree." We 

subsequently allowed the appeal to proceed after the trial court entered a July 2013 "ORDER NUNC PRO 

TUNC" "renominat[ing] the order as 'Order and Judgment of Dismissal Without Prejudice'" that stated the 

order was intended to "be final for purposes of appeal[.]" 
11

in a plaintiff's chosen forum." Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo. App. E.D. 

2000). Because the judgment precluded Appellant from proceeding in its chosen forum, that 

exception is applicable, and we have jurisdiction to hear the appeal. 

"This court will 'affirm a trial court's decision under Rule 52.04 unless it is 

unsupported by substantial evidence, it is against the weight of the evidence, or it 

misinterprets or misapplies the law.'" Dolphin Capital Corp. v. Schroeder, 247 S.W.3d 93, 

97 (Mo. App. W.D. 2008) (quoting ADP Dealer Servs. Grp. v. Carroll Motor Co., 195 

S.W.3d 1, 9 (Mo. App. E.D. 2005) (internal citations omitted)). We review the dismissal de 

novo, and "[w]e accept all of plaintiff's averments as true and view the allegations in the 

light most favorable to the plaintiff." Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo. App. 

E.D. 2005). 

Analysis 

Point I – Necessary Parties 

 Appellant's first point asserts the petition was erroneously dismissed because the 

parties which Respondents sought to add were not necessary parties in that the only issue for 

purposes of replevin is whether the plaintiff is entitled to possession of the property. 

Appellant argues, "The issues in the case at bar are narrow and deal with [Appellant's] right 

to possession of the Equipment as weighed against those of Respondents." Appellant insists 

that "[t]he Roberts, DKS[,] and Total Baking Solutions either have no interest in the 

Equipment or have agreed contractually that [Appellant] has the superior right in the 

Equipment and the right to possess the Equipment at the time of default in the Lease 

[between Appellant and DKS]." 
12

"A party must first be found necessary to a lawsuit before we consider whether that 

party is indispensable." Heitz v. Kunkel, 879 S.W.2d 770, 771 (Mo. App. S.D. 1994). "If 

the answer [to this preliminary question] is in the negative, no further consideration need be 

given to the indispensability of that party." State ex rel. Twenty-Second Judicial Circuit v. 

Jones, 823 S.W.2d 471, 475 (Mo. banc 1992). "A person is a necessary party if that person 

claims an interest relating to the subject of the action and is so situated that the disposition of 

the action in the person's absence may, as a practical matter, impair or impede the person's 

ability to protect that interest." Citizens Ins. Co. of Am. v. Leiendecker, 962 S.W.2d 446, 

450 (Mo. App. E.D. 1998). "It has been determined that an 'interest' which compels joinder 

is not one which is merely consequential, remote or a conjectural possibility of being 

somehow affected by the result of an action." Moschenross v. St. Louis Cnty., 188 S.W.3d 

13, 25 (Mo. App. E.D. 2006). The interest "must be such a direct claim upon the subject 

matter of the action that the joined party will either gain or lose by direct operation of the 

judgment to be rendered." State ex rel. Emcasco Ins. Co. v. Rush, 546 S.W.2d 188, 197 

(Mo. App. St.L.D. 1977). "If joinder of such a necessary party is not feasible, 'the court 

shall determine whether in equity and good conscience the action should proceed among the 

parties before it or should be dismissed, the absent party being thus regarded as 

indispensable.'" Jones v. Jones, 285 S.W.3d 356, 360 (Mo. App. S.D. 2009) (quoting Rule 

52.04(b)). 

 "[T]he gist of [a] replevin action is to test plaintiff's right to immediate possession 

of the chattels and defendant's wrongful detention. Proof of title or ownership is not an 

inherent element of the action, although it might incidentally become involved." Phillips v. 

Ockel, 609 S.W.2d 228, 231 (Mo. App. E.D. 1980). The plaintiff must prove its "immediate 
13

right to possession." Turman v. Schneider Bailey, Inc., 768 S.W.2d 108, 112 (Mo. App. 

W.D. 1988). 

Appellant relies on First Nat'l Bank of Clayton v. Trimco Metal Prods. Co., 429 

S.W.2d 276, 277 (Mo. 1968), in arguing that "[t]he fact that a third person may have some 

interest in the property will not preclude replevin by one having right to possession as 

against the Defendants named in the suit." (Capitalization and underlining as in Appellant's 

brief.) In Trimco, the actual owner of the equipment was dismissed from the suit, and the 

remaining claim by the bank for possession of the equipment against the debtor was allowed 

to proceed. Id. at 276-77. But the debtor in Trimco had "admit[ted] the execution of the 

chattel mortgage. This g[ave] the [b]ank, as against [the debtor], a 'special property or 

interest' in the equipment sufficient to sustain the [b]ank's action in replevin." Id. at 277. 

The court found that even though the actual owner "may be entitled to take possession of the 

property from the [b]ank[,]" the debtor could not "defend against its own chattel mortgage 

on the ground that it did not own the equipment." Id. 

Trimco is inapposite because there is no agreement in the instant case between 

Appellant and Respondents that would give Appellant such a "special interest" and would 

demonstrate its right to take immediate possession of the baking equipment. And while 

Appellant does not purport to claim different equipment than that also claimed by DKS, the 

pleadings suggest that there may be some dispute between Appellant and Respondents over 

the identification of the actual equipment provided to Respondents. No dispute about the 

identity of the equipment at issue was apparent in Trimco.

In addition to demonstrating a right to immediate possession, the plaintiff in a 

replevin action must also be entitled to exclusive possession of the property. Vahey v. 
14

Vahey, 120 S.W.3d 288, 291 (Mo. App. E.D. 2003). As a result, "[w]here several parties 

have an ownership interest in the property, [and ownership is the basis of the right to 

possession], all of the owners must be joined in the suit." Id.; but see Foulke v. McIntosh, 

234 S.W.2d 805, 808 (Mo. App. Spfld.D. 1950) (holding that one of the two owners by 

tenancy in the entireties was able to maintain an action in replevin to reacquire property 

taken from the land). Vahey was a case in which four of seven family members entitled to 

share in the personal property of a decedent sued to recover the property. 120 S.W.3d at 

290. On review, the court found that "[t]he trial court erred in proceeding with the action 

without the joinder of the remaining three owners." Id. at 291. 

Here, the pleadings and their incorporated documents reveal that more than one party 

claims the right to possess the equipment, and there has been no finding that Appellant's 

right to possess is the superior one. DKS alleged in Washington Superior Court that the 

equipment is "its property," that the Kalches converted this property "belonging to DKS 

without lawful right[,]" and that the Kalches "continue to use the equipment without 

permission or right." In its seventh count against the Kalches, DKS sought a declaratory 

judgment that it "shall be provided access to and entitled to remove its property (replevin)." 

As Respondents point out, Appellant is the only party to the instant lawsuit that 

signed the Lease, and Appellant acknowledges in its reply brief that it was not a party to the 

Joint Venture Agreement. As a result, whether Appellant's claim to possession of the 

property is superior to Respondents' claims relies -- at least in part -- upon the determination 

of Respondents' rights under the Joint Venture Agreement with DKS. Appellant attempts to 

avoid this problem by arguing in its reply brief that the claims of DKS and itself are not 

inconsistent in that DKS's right is "subject to the paramount rights of [Appellant]." This 
15

argument ignores the fact that no such priority of rights as to the equipment held by 

Respondents has been established, and in asserting its right to possession of the baking 

equipment in the Washington Superior Court, DKS did not state that its rights were inferior 

to those of another. 

Just as Appellant correctly argues that it would be inappropriate to disregard its 

corporate identity, so too the separate identity of DKS cannot be ignored. DKS's interest 

may be impeded if it is not joined as a party in Appellant's replevin claim (see Rule 

52.04(a)(2)(i)), and if it were possible to join DKS, it would stand to gain or lose by the 

judgment rendered. See Emcasco Ins. Co., 546 S.W.2d at 197. Further, the absence of 

DKS from the instant matter would leave Respondents "subject to a substantial risk of 

incurring double . . . or otherwise inconsistent obligations by reason of [Appellant's] claimed 

interest." Rule 52.04(a)(2)(ii). 

There is no need to decide at this point whether the Roberts or Total Baking 

Solutions are also necessary parties to the replevin claim because DKS is a necessary party. 

Whether DKS is an indispensable party is not specifically contested in Appellant's first 

point; its argument is only that none of the parties suggested by Respondents were necessary 

parties. DKS, a necessary party, could not be joined in the instant action, and Appellant has 

failed to demonstrate that DKS is not an indispensable party. Point I fails. 

Point II – Sufficiency of the Language of the Judgment 

 Point II contends the trial court did not "articulate the grounds for dismissal" as 

required under Rule 52.04(b). Appellant relies on two cases, Ward v. Bank Midwest, NA, 

871 S.W.2d 649, 651 (Mo. App. W.D. 1994), and Claas v. Miller, 806 S.W.2d 141, 144 

(Mo. App. W.D. 1991), for the principle that a trial court must follow the procedure laid out 
16

in Rule 52.04: if a person is necessary, but their joinder is not feasible, then the "court must 

decide if the person is indispensable by considering four listed factors. Only if the person is 

determined to be indispensable and cannot be joined should the action be dismissed." Ward, 

871 S.W.2d at 651. "The failure of a trial court to follow the procedures in Rule 52.04 to 

make the proper determinations before granting a dismissal is grounds for reversing the trial 

court's order." Id.; see also Claas, 806 S.W.2d at 144 (because the trial court failed to make 

the determination required by Rule 52.04(b), the dismissal could not stand). 

 It is important to note that Appellant does not allege that the trial court failed to 

follow Rule 52.04(b). Appellant's claim is that the trial court failed to articulate its grounds 

for dismissal. To preserve such a claim, an appellant must comply with Rule 78.07(c), 

which provides; "In all cases, allegations of error relating to the form or language of the 

judgment, including the failure to make statutorily required findings, must be raised in a 

motion to amend the judgment in order to be preserved for appellate review." "Since the 

amendment of Rule 78.07(c), claims based on a failure to make required findings are not 

preserved for appeal and are thereby waived unless raised in the trial court by a motion to 

amend the judgment." Stuart v. Ford, 292 S.W.3d 508, 517 (Mo. App. S.D. 2009).8

 

 Here, the trial court stated that it had "consider[ed] the four factors set forth in Rule 

52.04(b), [but] conclude[d] that in equity and good conscience the instant action should not 

be allowed to proceed in the [trial court]." As earlier noted, Appellant did not file a motion 

to amend the judgment. As a result, Appellant did not give the trial court an opportunity to 

"show its work" in applying the four criteria set forth in Rule 52.04(b)(i)-(iv). At oral 

argument, Appellant's counsel suggested that a dismissal judgment could be treated 

 

8

 "Rule 78.07(c) was amended effective January 1, 2005. Prior to the amendment, 'no post-trial motion was 

required to preserve an issue for appeal in a court-tried case.'" Id. (quoting Wilson-Trice v. Trice, 191 S.W.3d 

70, 72-73 (Mo. App. W.D. 2006). 
17

differently than other judgments for purposes of Rule 78.07(c). We find no such authority 

for the suggestion, and the language of the rule itself provides that "in all cases" the claim 

regarding the sufficiency of the findings in the judgment must be preserved by including it 

in a motion to amend the judgment. Because Appellant's second point was not preserved for 

review, it is denied. 

Point III – Venue for Replevin in Missouri 

 Appellant's third point contends the trial court erred in dismissing the petition 

because "Texas County . . . is the only appropriate venue" for its replevin claim as the 

remedy may not be obtained elsewhere. Appellant is correct that Missouri statutes provide 

that venue for a replevin suit is in the county in which the property is located. 

Suits commenced by attachment against the property of a person, or 

in replevin or claim and delivery of personal property, where the specific 

property is sought to be recovered, shall be brought in the county in which 

such property may be found; and in all cases where the defendant in actions 

in replevin or claim and delivery of personal property is a nonresident of the 

county in which the suit is brought, service shall be made on him as under 

like circumstances in suits by attachment. 

Section 508.020. See also Marston v. Rose-Elash, 720 S.W.2d 783, 784 (Mo. App. W.D. 

1986) (section 508.020 requires a replevin case to "be brought in the county where the 

property is found"). 

 The trial court seemed to contemplate that a replevin action could be added to the 

pending litigation in Washington Superior Court when it stated that "[t]o the extent that one 

of the claims to be decided [in Washington Superior Court] is [Appellant]'s replevin claim, 

the final judgment, if favorable to [Appellant], can easily be registered as a foreign judgment 

in Missouri" under section 511.760. 
18

We do not need to determine the extent of remedies available to Appellant in 

Washington (and subsequently here in Missouri by means of the registration of a foreign 

judgment) to decide Appellant's third point. Simply because venue for a replevin action 

would not lie in a Missouri court outside the county in which the property is located does not 

prevent the dismissal of a suit for failure to join an indispensable party, even if it means that 

the plaintiff is not afforded that relief. Cf. Goodkin v. 8182 Maryland Assocs. Ltd. P'ship, 

80 S.W.3d 484, 491 (Mo. App. E.D. 2002) (summary judgment in favor of defendant 

affirmed when statute of limitation had expired as to the general partner, an indispensable 

party). 

Similarly, in Dolphin Capital Corp., the plaintiff's collection actions against seven 

defendants based on assigned rental agreements were dismissed. 247 S.W.3d at 94, 98. The 

defendants had counterclaimed based on theories of fraud and unenforceable adhesion 

contracts. Id. at 97. The reviewing court agreed with the trial court that the defendants' 

fraud claim could not "be fully adjudicated in [the original lessor's] absence" and the 

original lessor was therefore a necessary party. Id. at 98. That ruling was required even 

though it was "indisputable" that the original lessor could not be joined in the action due to 

his being under bankruptcy protection. Id. at 94, 98. The original lessor was found to be an

indispensable party because "the allegations of fraud, as well as the disturbing inferences 

arising from the actions of [the plaintiff] and [the original lessor] clearly distinguish[ed] 

th[e] case from a garden-variety collections action." Id. at 98. The court refused to allow 

the plaintiff's case to go forward, finding that the "fact that [the original lessor] cannot be 

here should be [the plaintiff's] responsibility rather than that of the defendant-respondents[,]" 
19

and "equity and good conscience demand that, in the absence of [the original lessor], the 

action be dismissed." Id. 

Here, a competing claim for replevin has been asserted by another entity, and, as the 

trial court found, the underlying transaction at the heart of this dispute "was carried out by 

several closely related business entities, [such that] orderly justice is only possible if all 

claims and parties are joined for hearing before one judge in one courtroom." The litigation 

of those underlying claims has been moved to Washington Superior Court. We disagree 

with Appellant's contention that the dispute over the Joint Venture Agreement is irrelevant 

to a determination of who has the right to immediate possession of the baking equipment 

because one party to that agreement is also claiming that it provides such a right. Therefore, 

in equity and good conscience, it was appropriate for the trial court to dismiss the petition 

even though venue for a replevin claim would ordinarily lie in Texas County. Point III is 

also denied, and the judgment of dismissal is affirmed. 

DON E. BURRELL, J. – OPINION AUTHOR 

JEFFREY W. BATES, P.J. - CONCURS 

MARY W. SHEFFIELD, J. - CONCURS