Henry v. Piatchek, ED105742

• Decision Date: 10 July 2018
• Docket Number: No. ED105742,ED105742
• Parties: DELORES HENRY, Plaintiff, v. PAUL PIATCHEK, et al., Defendants/Respondents, DARRELL WILLIAMS, SR., Proposed Intervenor/Appellant.
• Court: Missouri Court of Appeals

DELORES HENRY, Plaintiff,
v.
PAUL PIATCHEK, et al., Defendants/Respondents,
DARRELL WILLIAMS, SR., Proposed Intervenor/Appellant.

No. ED105742

Missouri Court of Appeals Eastern District DIVISION FOUR

July 10, 2018

Appeal from the Circuit Court of the City of St. Louis

Honorable Rex M. Burlison

OPINION

Darrell Williams, Sr. (Father) appeals from the trial court's judgment denying his motion to set aside its dismissal of, and permit his intervention in, a wrongful death lawsuit against the St. Louis Board of Police Commissioners and certain police officers in connection with the shooting of Darrell Williams, Jr. (Son). We reverse and remand for further proceedings.

Wrongful Death Statute

In this perfect storm of procedural missteps, the wrongful death statute is our beacon. Its unique mandates serve as our navigators, and the constitutional principle of due process our compass. Importantly here, the statute confers hierarchical standing to certain plaintiffs and prevents multiple actions against the same defendant. As relevant to this case,

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§537.080 provides:

1. Whenever the death of a person results from any act, conduct, occurrence, transaction, or circumstance which, if death had not ensued, would have entitled such person to recover damages in respect thereof, the person or party who, or the corporation which, would have been liable if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured, which damages may be sued for:
(1) By the spouse or children or the surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate, or by the father or mother of the deceased, natural or adoptive;
(2) If there be no persons in class (1) entitled to bring the action, then by the brother or sister of the deceased, or their descendants...;
(3) If there be no persons in class (1) or (2) entitled to bring the action, then by a plaintiff ad litem. ... .
2. Only one action may be brought under this section against any one defendant for the death of any one person.

Background

This is the second appeal in this case. The facts and procedural history are detailed in Love v. Piatchek, 503 S.W.3d 318 (Mo. App. E.D. 2016). To review, after Son was fatally shot by police in 2009, Son's grandmother, Delores Henry (Grandmother), filed a wrongful death action naming herself as Son's "next of kin," without mention of Son's parents, who were incarcerated at the time.¹ Respondents answered the petition, and the parties began discovery. As chronicled in the attached appendix, between August 2010 and July 2011, Father, acting pro se, filed eight inquiries seeking information and inclusion in the case. Four filings specifically asserted Father's paternity. Two asked for "procedures for filing a petition" and "the local court rule for filing a lawsuit." Three contained requests to become a plaintiff in the case, including one formal motion. The trial court recorded these filings and responded to Father's requests for documents, but it failed to rule on his motion or otherwise address his prayers to participate. The court's docket sheet in that 12-

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month period contains 13 entries revealing Father's legal interest in and desire to join the suit. Despite his standing as a superior plaintiff, Father was excluded from Grandmother's case,² Respondents defended the suit for four years, and the trial court failed to acknowledge Father's absolute right to intervene.

Jury trial dates were set and continued from 2011 until 2014. One week before trial, Grandmother filed a motion to dismiss her suit without prejudice, which the trial court approved "so ordered." Months later, Son's mother, Kathryn Love (Mother), resurfaced and filed her own wrongful death suit, relying on the saving statue (§537.100) to overcome the three-year statute of limitations, which lapsed in 2012. The trial court dismissed Mother's suit as untimely, reasoning that Grandmother's original petition was invalid because she was not an eligible plaintiff - Son's parents still living - so there was nothing for the saving statute to revive. Binding precedent constrained this court to affirm, but concurring judges noted that Mother's suit would have been timely had the trial court granted Father's motion to intervene in the first suit, as was his right. Love, 503 S.W.3d at 320. Reviewing only the timeliness of Mother's petition in that appeal, we could not address the underlying omissions in the first case, only supposing in a concurring footnote: "The original case cannot be revived at this juncture because the judgment became final after Grandmother dismissed her petition. A party may collaterally attack a final judgment only through Rule 74.06." Id. at 320 FN 1.

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In the wake of Love, Father filed a motion to set aside judgment and intervene in the original case, relying on Rule 76.04(b)(5) permitting relief from judgment on equitable grounds. The trial court denied the motion without reaching the merits, reasoning that Grandmother's voluntary dismissal terminated the court's jurisdiction in the matter.

Father appeals and asserts that the trial court's approval of Grandmother's dismissal operated as an involuntary dismissal with prejudice as to Father's claim - i.e., a judgment from which relief is available under Rule 74.06. Respondents contend that there was no judgment and the trial court lost subject matter jurisdiction the moment Grandmother dismissed her petition. We are compelled toward other conclusions but first offer a road map.

Abstract

This case is a procedural conundrum. Grandmother lacked standing, so her petition was a nullity that the parties nonetheless litigated for four years without acknowledging a superior plaintiff. Father, whose paternity is not disputed,³ had an absolute statutory right to bring or join a wrongful death suit, but he was excluded from the one pending while statutorily prohibited from filing his own parallel suit. Three years later, after the statute of limitations had lapsed, Grandmother dismissed her inviable petition. Father's valid claim remained unrecognized, and Mother's subsequent petition couldn't relate back to Grandmother's nullity. This should not have happened, and now Father seeks to intervene and set aside Grandmother's dismissal.

Though the trial court treated Father's present motions to intervene and to set aside the

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dismissal as one, they must be addressed separately.⁴ We start with whether Father adequately asserted his claim in the first place and conclude that he did. Father's filings were sufficient as a motion to intervene as of right in Grandmother's suit. Failure to grant the motion during the pendency of the original case was plain error. On his renewed motion to intervene now before us, Father has demonstrated, through the underlying facts and procedural record, that substantial justice mandates his intervention.

Next we address Father's motion to set aside the underlying dismissal. The trial court erred in determining that it lacked jurisdiction to grant the motion. Rule 74.06 is the proper recourse. On the merits, Grandmother's purported dismissal of Father's claim was unauthorized, entered in violation of his due process rights, and therefore void. Father is entitled to prosecute his claim.

Standards of Review

"Denial of a motion for leave to intervene as a matter of right under Rule 52.12 will be affirmed by an appellate court unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." State ex rel Nixon v. Am. Tobacco Co., 34 S.W.3d 122, 126 (Mo. 2000).

A trial court's ruling on a motion to set aside a judgment under Rule 74.06 is generally reviewed for an abuse of discretion. Forsyth Fin. Grp., LLC v. Hayes, 351 S.W.3d 738, 740 (Mo. App. W.D. 2011). However, whether a judgment should be vacated as void is a question of law that we review de novo. Id.

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Discussion

I. Father's pleadings were sufficient to mandate intervention.

Father's multiple filings in the trial court in 2010 and 2011 included the following:

My child (Darrell H. Williams, Jr.) was shot and killed by a St. Louis City police officer Nov. 18, 2009. I would like to know if a complaint has been filed withthis court in regards to my child's (Darrell H. Williams, Jr.) death.
The above mention cause no. is in regards to a wrongful death suit regarding my son (Darrell Williams, Jr.). ... how can I become a plaintiff and proceed pro se?
I am writing to you concerning the above cause # in which my son (Darrell Williams, Jr.) was shot and killed. ... As a father, I should be allowed to be a plaintiff. I request that I be listed a "pro se" plaintiff on this petition.
Enclosed is a motion that I would like to file with this court. Also please send me the local court rule for filing a law suit. Comes now plaintiff Darrell Williams, pro se, requesting to become a plaintiff in cause #1022-CC00155, for the following reason: Plaintiff Darrell Williams, Sr., is the father of the deceased Darrell Williams, Jr. Wherefore Plaintiff requests that this motion be granted.

Respondents argue that Father's motion was insufficient to preserve his rights because he didn't notice it up for hearing. While it is true that Father's attempt at service technically fell short,⁵ we do not view his form fatal to substance on this particular record. "Procedural rules are but the means through which we seek to ensure the fair and orderly resolution of disputes and to attain just results. They are not ends in themselves." Heintz v. Woodson, 758 S.W.2d 452, 454 (Mo. 1988). Non-compliance is not determinative unless prejudice resulted. Id. Respondents suffered no prejudice here.

First, as a practical matter, Respondents cannot credibly claim that they neglected to inquire of the deceased's parents throughout extensive pre-trial discovery. A party with actual notice cannot show prejudice in a due...