Apartments v. Pallo, ED 93824.

• Court: Court of Appeal of Missouri (US)
• Citation: 317 S.W.3d 189
• Docket Number: No. ED 93824.,ED 93824.
• Parties: PEACHTREE APARTMENTS, Respondent,v.Norman PALLO, Appellant.
• Decision Date: 20 July 2010

317 S.W.3d 189

PEACHTREE APARTMENTS, Respondent,
v.
Norman PALLO, Appellant.

No. ED 93824.

Missouri Court of Appeals,
Eastern District,
Division Three.

July 20, 2010.

317 S.W.3d 190

William C. Dunning, St. Louis, MO, for appellant.

Randall J. Reinker, St. Louis, MO, for respondent.

LAWRENCE E. MOONEY, Judge.

The defendant, Norman Pallo (“the tenant”), and his counsel appeal from the judgment entered by the Circuit Court of St. Louis County purporting to award attorney's fees to counsel for the plaintiff, Peachtree Apartments (“the landlord”), as a sanction because the tenant filed a motion to quash execution. We conclude that the trial court was without jurisdiction to enter its judgment sanctioning the tenant's counsel because the tenant withdrew his motion as moot before the motion for sanctions was even filed. Thus, the trial court lost jurisdiction to enter any order. Therefore, we remand and order the trial court to vacate its judgment sanctioning the tenant's counsel.

In the principal case, the landlord sued the tenant for rent due and possession of an apartment, which the tenant leased from the landlord. The parties entered a consent judgment on July 28, 2009, whereby they agreed to suspend execution for

317 S.W.3d 191

possession of the apartment so long as the tenant paid the rent awarded the landlord. The tenant failed to pay the first installment on the agreed date. The parties disputed whether the landlord nonetheless accepted the tenant's first payment two days late, and the effect on the consent judgment. In any event, the landlord sought to execute on the judgment and gain possession of the apartment. The tenant responded by filing a motion to quash execution. On September 1, 2009, apparently having decided to immediately vacate the apartment, the tenant withdrew his motion to quash as moot. The landlord acknowledged the tenant's withdrawal of the motion to quash for mootness, and the trial court ordered the motion withdrawn as moot on that date.

The next day, September 2, 2009, the landlord filed a motion for sanctions with the court, citing Missouri Supreme Court Rule 55.03.¹ The landlord's motion for sanctions alleged that the tenant failed to make timely payment under the terms of the consent judgment, and that he filed a frivolous motion to quash in an attempt to delay execution, thus causing the landlord to incur additional attorney's fees. On October 9, 2009, the trial court found that the tenant's counsel violated Rule 55.03(c) ² by filing a frivolous motion in an attempt to harass the landlord and to cause unnecessary delay in evicting the tenant. The trial court ordered the tenant's counsel to individually pay the landlord's counsel $1,000 toward the reasonable attorney's fees incurred by the landlord's counsel in defending against the tenant's motion to quash. This appeal follows.

A motion to quash execution constitutes a special proceeding attacking enforcement of the judgment, and it is independent of the principal cause of action-here, the landlord's suit for rent and possession of the apartment. Carrow v. Carrow, 294 S.W.2d 595, 597 (Mo.App.St.L.Dist.1956). In this case, the tenant voluntarily withdrew his motion to quash execution on September 1, 2009. The tenant's withdrawal of his motion to quash is analogous to the voluntary dismissal of a case. Generally, dismissal disposes of the entire case. State ex rel. McMullin v. Satz, 759 S.W.2d 839, 840 (Mo. banc 1988). A voluntary dismissal becomes effective on the date it is filed with the court, and once a case is dismissed, it is as if the suit were never brought. State ex rel. Frets v. Moore,...