Derfelt v. Yocom, 66404

• Decision Date: 25 June 1985
• Docket Number: No. 66404,66404
• Citation: 692 S.W.2d 300
• Parties: Roy L. DERFELT, et al., Relators, v. Honorable Robert E. YOCOM, Special Judge, Jasper County, Missouri, Respondent.
• Court: Missouri Supreme Court

Page 300

692 S.W.2d 300

Roy L. DERFELT, et al., Relators, v. Honorable Robert E. YOCOM, Special Judge, Jasper County Missouri, Respondent.

No. 66404.

Supreme Court of Missouri En Banc.

June 25, 1985.

Richard C. Miller, Lloyd Joseph Carmichael, Springfield, for relators.

Stephen G. Scholl, Kansas City, for respondent.

BILLINGS, Judge.

Relators Roy and Virginia Derfelt and Stephen and Madelyn Bazzano, were sued by Traders Bank of Kansas City on a promissory note and their personal guarantees. ¹ On February 14, 1984, Respondent, The Honorable Robert E. Yocom, Special Judge of the Circuit Court of Jasper County, ordered Traders Bank's cause of action against relators dismissed with prejudice because Traders Bank at that time had not yet complied with an earlier discovery sanction order.

Thirteen days later Traders Bank filed a motion styled, Motion For Reconsideration Of Dismissal Order And For Reinstatement Of Cause As To Defendants Derfelt and Bazzano. ² The motion alleged compliance with the court's discovery sanction order and stated compliance had been delayed because counsel was out of the country and his return delayed due to bad weather. On March 15, 1984, respondent, without notice to relators and without reference to the above-styled motion, reinstated Traders Bank's action against relators. Because respondent failed to give relators notice and an opportunity to be heard before reinstating the cause, relators argue that he should be prohibited from exercising any further authority over them since he long ago lost jurisdiction to do so. ³

The question we must consider in this case is whether we should exercise our discretionary authority to make permanent the preliminary writ of prohibition we issued on December 18, 1984. This we decline to do. A writ of prohibition does not issue as a matter of right. State ex rel. Hannah v. Seier, 654 S.W.2d 894, 895 (Mo. banc 1983). Whether a writ should issue in a particular case is a question left to the sound discretion of the court to which application has been made. Id. See also State ex rel. St. Louis County v. Stussie, 556 S.W.2d 186 (Mo.1977).

Because this extraordinary legal remedy provides litigants with abundant opportunity to circumvent the normal appellate process, we are mindful that courts should employ the writ judiciously and with great restraint. A court should only exercise its discretionary authority to issue this extraordinary remedy when the facts and circumstances of the particular case demonstrate unequivocally that there exists an extreme necessity for preventive action. Absent such conditions, the court should decline to act.

The facts and circumstances of this case lead us to conclude that issuing a writ of prohibition would be an unwarranted and injudicious exercise of our discretionary authority. In so doing we do not decide the question of whether relators' claims of trial court error are meritorious or nonmeritorious. Rather, we have only determined that the unique facts of this controversy do not warrant the exercise of our discretionary authority. The preliminary order in prohibition is quashed.

RENDLEN, C.J., HIGGINS and WELLIVER, JJ., and DOWD, Special Judge, concur.

DONNELLY, J., concurs in result.

BLACKMAR, J., concurs in result in separate opinion filed.

GUNN, J., not sitting.

BLACKMAR, Judge, concurring in result.

I agree that the provisional rule should be quashed, but I would reach this conclusion because the order of March 15, 1984 was manifestly within the jurisdiction of the circuit court.

The relators admit that the order of dismissal of February 14, 1984 was procured without notice to the plaintiff. This was improper. Notice should have been given. Bindley v. Metropolitan Life Insurance Co., et al., 358 Mo. 31, 213 S.W.2d 387 (1948); Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347 (banc 1950).

The relator argues that the court had already determined that, unless the sanction money were paid within 30 days, the plaintiff's petition was to be dismissed as against the defendants who are now relators. It is suggested that no further order was necessary. This is not so. A final dismissal should be effected only by an explicit and unconditional order. White v. Sievers, 359 Mo. 145, 221 S.W.2d 118 (1949). As has been said above notice to parties entitled should be given when application is made to convert the conditional order into an unconditional order.

It is not necessary to hold that the order of February 14, 1984 was void. It was seriously irregular and the trial court had the authority to set it aside as soon as the irregularity was called to...