Henningsen v. Independent Petrochemical Corp., 63695

CourtCourt of Appeal of Missouri (US)
Writing for the CourtPER CURIAM
Citation875 S.W.2d 117
PartiesJoseph A. HENNINGSEN, et al., Appellants/Plaintiffs, v. INDEPENDENT PETROCHEMICAL CORPORATION, et al., Respondents/Defendants.
Docket NumberNo. 63695,63695
Decision Date11 January 1994

Kortenhof & Ely, Ben Ely, Jr., Kohn, Shands, Elbert, Gianolakis & Giljum, Robert T. Haar, St. Louis, Morris B. Chapman & Associates, Ltd., Morris B. Chapman, Granite City, IL, Pratt, Bradford & Tobin, Glenn E. Bradford, East Alton, IL, O'Gorman & Sandroni, St. Louis, for appellants, plaintiffs.

Lewis, Rice & Fingersh, Richard A. Ahrens, St. Louis, for respondent-defendant IPC.

Hunton & Williams, Lewis T. Booker and Joseph C. Kearfott, Richmond, VA, Armstrong, Teasdale, Schlafly & Davis, Joan Z. Cohen, St. Louis, for respondent-defendant Syntex Agribusiness Inc. and Syntex (U.S.A.) Inc.

Roberts, Perryman, Bomkamp & Meives, P.C., Ted L. Perryman and John L. Walker, St. Louis, for respondent-defendant Nepacco.

Russell M. Bliss, pro se.

Jerry Russell Bliss, pro se.



This appeal involves two related cases. In the first, fifty-two plaintiffs stated a cause of action against numerous defendants alleging product liability for personal injury and wrongful death resulting from exposure to dioxin. On October 9, 1990, the presiding judge of the circuit entered an order dismissing the "dioxin" case for failure to prosecute.

More than one year thereafter plaintiffs filed a petition in equity to obtain an order setting aside the dismissal. Plaintiffs appeal an order denying relief after a trial.

In accord with our affirmative duty to determine jurisdiction, Estate of Sawade v. State, 787 S.W.2d 286, 288 (Mo. banc 1990), we find the equity court did not acquire subject matter jurisdiction. We conclude that the order dismissing the dioxin case was void because: (1) it was entered on October 9, 1990, without actual or constructive notice to any party; (2) it was entered in violation of local Rule 37 which provided a procedure for dismissal of pending lawsuits for failure to prosecute but was ignored; and, (3) the dismissal was arbitrary because there was no effort to determine and no factual support for a finding that plaintiffs failed to prosecute the dioxin lawsuit.

We hold the equity court did not acquire subject matter jurisdiction to set aside a valid judgment on the issues alleged in the petition and decided by the court adversely to plaintiffs; it was void when entered. Because our jurisdiction is derivative we do not have jurisdiction to reach the merits. Sections 512.160.1 RSMo 1986; Turner v. General Motors Corp., 750 S.W.2d 76, 77 (Mo.App.1988). The court could have decided the dismissal judgment was void on the grounds we discuss in this opinion, but it did not so hold. The dioxin lawsuit is still pending in the Circuit Court of the City of St. Louis as Joseph A. Henningsen, et al., v. Independent Petrochemical Corporation, et al., Cause No. 832-05063. Appeal dismissed.

On October 9, 1990, the presiding judge entered the following order in many pending civil cases including the dioxin case:


This cause shall stand dismissed without prejudice on October 19th, 1990 for failure to prosecute, at plaintiff's [sic] costs.

Dismissal Order may be set aside upon timely filing of discovery schedule and docket card setting the cause for trial on a date certain.

The presiding judge entered the order on those civil cases pending more than two years and not on a trial docket. No other criteria was applied, particularly, there was no requirement that a case was not being prosecuted as required by any reasonable standard. No examination was made of the files to determine whether there was any factual support for a present or subsequent finding of failure to prosecute.

No actual or constructive notice was given to the parties that the dismissal order would be entered on October 9, 1990. On October 12, 1990, the St. Louis Daily Record published a list of cases for dismissal on October 19, 1990. However, there was no dismissal docket on October 19, 1990. The presiding judge testified that in those cases where the order was not "set aside " the dismissal was "automatic."

The presiding judge designed, adopted and employed a system he called a "bright line system." He acknowledged that the existing procedure [in accord with local Rule 37] involved two notices to the parties. There is evidence that a postcard which announced a dismissal docket "of 10-9-90," not October 19, 1990, was received by one of the defendants on October 10, 1990. There is no evidence that any notice of any kind was intended, or given, on or before October 9, 1990. The presiding judge had no knowledge whether notices or copies of the order of dismissal were ever mailed to any party. He didn't apply any local rule. He acknowledged that no examination was made of any of the files regarding factual support for determining a failure to prosecute. He testified the case was dismissed on the date of the notice. The judge also acknowledged that he "decided [he] was going to run 'more or less automatic' a little different system with regard to moving the cases, the older cases off the docket." On October 31, 1990, the Daily Record published a list of cases that had been dismissed.

At the time of the dismissal of the dioxin case there were a number of other dioxin cases pending in the circuit. Each was a complex case involving many parties and likely to require lengthy trials. Discovery procedures and settings were supervised by other judges together with the presiding judge. For these reasons they were not processed in the same manner as other civil damage suits pending in the circuit. Special requirements for discovery and setting were recognized.

Counsel for plaintiffs did not discover the dismissal until November 1991, more than twelve months after the order was effective. The statute of limitations would bar all of plaintiffs' claims if the judgment of dismissal is final.

The equity court denied relief. It found as a fact "plaintiffs did not appear in person or by counsel when the dismissal docket was called nor did they appear at any time prior to November 1991." It denied relief under Rules 75.01, 74.03 and 74.06. It concluded as a matter of law that plaintiffs could not have relief under Rule 74.06 on the grounds alleged. However, it made no reference to the provisions in Rule 74.06(b)(4) which authorizes relief from a final judgment where the judgment is void. Nor did the court refer to the provisions of Rule 74.06(c) which provides a one-year time limit for three of the stated grounds for relief but does not include a time limit for relief from a void judgment.

There was no dismissal docket on October 9, 1990, as the notice card stated, or on October 19, 1990, as those terms are used in local Rule 37 which was in effect in October 1990.

In relevant part, local Rule 37 provides as follows:

37.1.1. Civil Jury Docket--The Presiding Judge of the Circuit Court shall, when ever he deems it advisable, upon not less than ten days' notice published in the St. Louis Daily Record, call such of the causes then pending in Division No. 1 as he shall select. Upon such call, any cause shall, in the discretion of the Presiding Judge, be continued or dismissed, and the failure of the plaintiff or appellant to respond in person, or by attorney, at the call of such docket, as herein provided, shall be deemed and taken as grounds for dismissal of the cause or appeal for failure to prosecute. (Our emphasis).

* * * * * *

37.2. Reinstatement of Cause.

Notice of the filing of each application or motion for the reinstatement of a dismissed cause shall, before the filing of same, be served by counsel upon the opposing party of his counsel of record, and proof of such service shall be filed with such application or motion.

The rule requires publication notice in advance of a dismissal docket and an actual docket call. It also provides a manner of determining that the plaintiffs are responsible for failure to prosecute the cause of action, a failure to appear creates the presumption. It provides a reinstatement procedure that is quite different than the set aside procedure adopted by the presiding judge. But in the present case the presiding judge's "bright line system" ignored and did not utilize either notice or a docket call. There was no notice and no docket call. The dismissal therefore, did not have the benefit of the presumption of failure to prosecute.

The legality of the order to dismiss entered on October 9, 1990, is decisive. That was the last order entered in the case. No notice was given to any party for the October 9, 1990 order. Because it was entered without any notice it was unfair and unjust, Gladden v. Kansas City, 411 S.W.2d 228, 229 (Mo.1967), and void. Healer v. Kansas City Public Service Co., 251 S.W.2d 66, 68 (Mo.1952); Around the World Importing, Inc. v. Mercantile Trust Company National Ass'n., 771 S.W.2d 919, 921 (Mo.App.1989). In Around the World Importing, this court held the order was ineffective for failure to give notice before entry of a dismissal. Those counts of the petition which, for that reason, were not lawfully dismissed remained pending, thus, there was no final judgment and the appeal was subject to dismissal. In reaching the same result we also acknowledge the rule that "Missouri disfavors the dismissal of cases because of failure to prosecute, Horobec v. Mueller, 628 S.W.2d 942, 944 (Mo.App.1982), as the law favors trial on the merits." State ex rel. Highway and Transportation Comm'n v. Moulder, 726 S.W.2d 812, 813 (Mo.App.1987).

Two additional reasons support the conclusion that the order of October 9, 1990, was a nullity. First, the order ignored and did not comply with existing Rule 37. In the absence of rule or statute there is no question that a trial judge may...

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