Killian Construction Co. v. Tri-City Construction Co.

LOWENSTEIN, Judge.

Defendant-appellant Tri-City Construction Company appeals an order of the trial court granting plaintiff-respondent Killian Construction Company leave to dismiss its petition without prejudice after plaintiff had presented part of its case to the jury on a claim for breach of contract.

Rule 67.01 provides that leave of court to dismiss a plaintiff’s cause without prejudice “shall be freely granted when justice so requires.” In the instant case, there was a two day trial in which plaintiff had presented four witnesses, read portions of a deposition of another witness and…