Richard Percefull v. Chris Claybaker , 312 F. App'x 827 ( 2008 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-3095
    ___________
    Richard D. Percefull,               *
    *
    Appellant,              *
    * Appeal from the United States
    v.                            * District Court for the
    * Western District of Arkansas.
    Chris Claybaker, Mayor of Camden,   *
    Arkansas,                           * [UNPUBLISHED]
    *
    Appellee.               *
    ___________
    Submitted: November 20, 2008
    Filed: November 25, 2008
    ___________
    Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
    ___________
    PER CURIAM.
    Richard Percefull appeals the district court’s adverse grant of summary
    judgment in his 
    42 U.S.C. § 1983
     action. The district court concluded that summary
    judgment was warranted because the complaint was barred by res judicata. Having
    conducted careful de novo review, see Rouse v. Benson, 
    193 F.3d 936
    , 939 (8th Cir.
    1999) (standard of review), we conclude that the complaint is not res judicata barred,
    and therefore, we vacate the district court’s order and remand for further proceedings.
    The district court concluded that the instant complaint was barred by res
    judicata because Percefull had filed a similar complaint against Chris Claybaker in
    Arkansas state court, and the complaint was dismissed under Arkansas Rule of Civil
    Procedure 12(b)(6) for failure to state facts upon which relief could be granted. Under
    Arkansas law, see Lommen v. City of East Grand Forks, 
    97 F.3d 272
    , 274 (8th Cir.
    1996) (federal court implements preclusion rules of state from which judgment
    originated), one requirement for the application of res judicata is that the first suit
    resulted in a final judgment on the merits, see Winkler v. Bethell, 
    210 S.W.3d 117
    ,
    122 (Ark. 2005). Because the prior state court complaint was expressly dismissed
    without prejudice, we conclude that it was not a final judgment on the merits for
    purposes of res judicata. See Sluder v. Steak & Ale of Little Rock, Inc., 
    245 S.W.3d 115
    , 118 (Ark. 2006) (when complaint is dismissed under Rule 12(b)(6), dismissal is
    without prejudice; plaintiff may plead further or may appeal, but if plaintiff chooses
    to appeal, then he waives right to plead further and complaint will be dismissed with
    prejudice).
    We decline to consider Claybaker’s alternative grounds for affirming--he argues
    that the claims at issue lack merit--because the district court declined to address the
    merits, and the record reveals disputed factual issues that may affect review. See
    Schweiss v. Chrysler Motors Corp., 
    922 F.2d 473
    , 476 (8th Cir. 1990) (appeals court
    might not affirm on theory not addressed by district court in certain situations, such
    as where there are factual questions still to be resolved, or where appeals court would
    benefit from having district court decide issue in first instance).
    Accordingly, we reverse and remand for further proceedings.
    ______________________________
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