Manning v. Fedotin, WD 59356.

CourtCourt of Appeal of Missouri (US)
Citation64 S.W.3d 841
Docket NumberNo. WD 59356.,WD 59356.
PartiesLeon C. MANNING and Gundrun S. Manning, Appellants, v. Michael S. FEDOTIN, B. Williams Ginsburg, Inc., Research Medical Center, Health Midwest, Menorah Medical Center, Thomas O'Farrell, M.D., and Kansas City Vascular & General Surgeons, Respondents.
Decision Date08 January 2002
64 S.W.3d 841
Leon C. MANNING and Gundrun S. Manning, Appellants,
Michael S. FEDOTIN, B. Williams Ginsburg, Inc., Research Medical Center, Health Midwest, Menorah Medical Center, Thomas O'Farrell, M.D., and Kansas City Vascular & General Surgeons, Respondents.
No. WD 59356.
Missouri Court of Appeals, Western District.
January 8, 2002.

[64 S.W.3d 842]

Timothy W. Monsees, Kansas City, for appellant.

Kirk Goza, Douglas Beck, William Yocum, Richard Paul, Norman Reichel, Dine Waters, Kansas City, for respondent.

[64 S.W.3d 843]


Appellants Leon and Gundrun Manning (hereinafter "the Mannings") appeal the trial court's denial of their motion to set aside the dismissal of a medical malpractice action filed against respondents Michael S. Fedotin, B. William Ginsburg, Inc., B. William Ginsberg, Research Medical Center, Health Midwest, Menorah Medical Center, Kansas City Vascular & General Surgeons, and Thomas P. O'Farrell. For the reasons discussed below, we find no abuse of discretion by the trial court and affirm the decision not to set aside the judgment of dismissal.

Factual and Procedural Background

The Mannings filed a pro se petition against respondents on March 18, 1998, alleging medical malpractice. Specifically, the petition alleged that respondent Ginsburg perforated Leon Manning's colon in the course of conducting a colonoscopy procedure, leading to the introduction of air into his abdominal cavity. The Mannings also alleged negligence by certain respondents in their failure to timely diagnose these problems. Surgical intervention was ultimately required to repair the damage, which had become life threatening. There is suggestion in the briefs that Leo Manning is now incompetent, but it is unclear whether that was a result of the injuries he sustained from the alleged malpractice.

On the petition, the Mannings stated their address as P.O. Box 6604, 3236 Windsor, Kansas City, MO 64123. On April 6, 1998, the Mannings mailed to the Clerk of the Court (via certified mail) a letter requesting, in part, that the Clerk send "all future correspondence" to their post office box (P.O. Box 6604, KCMO). The signature block of that letter contained the same address as set forth on the petition, however, containing both the post office box and street addresses. Around the same time, the Mannings also apparently notified the U.S. Post Office of a change of address.

The various respondents eventually filed motions to dismiss the pro se petition, nearly all premised upon the Mannings' failure to comply with the affidavit requirement of § 538.225, RSMo.1 At least one of the motions (such as the motion to dismiss filed June 22, 1998) was mailed to the Mannings' post office box. Indeed, most, if not all of the subsequent motions to dismiss contained certificates of service listing the Mannings' mailing address as it was set out in the petition, which contained both the post office box and street addresses.

In response to the motions to dismiss, the Mannings, on September 4, 1998, sought a sixty-day extension of time to file the affidavit.2 Later that day, after hearing oral arguments regarding the motion to dismiss, the trial court granted the Mannings' request for an extension of time. The court entered an order permitting the Mannings until November 4, 1998, to file the affidavit required under § 538.225. That order also clearly stated that the defendants' motions to dismiss were being taken under advisement and that the failure to file the required affidavit before the November 4 deadline would result in the dismissal of the case. While the certificate of service indicates that the

64 S.W.3d 844

order was mailed to the Mannings, it does not state to which address it was sent. The Mannings, in their statement of facts, do not explicitly contend that they did not receive this order, nor does the record on appeal suggest that copy of the order mailed to the Mannings was returned as undeliverable.

No affidavit was filed by the Mannings prior to the new deadline. Subsequently, on November 10, 1998, the respondents again sought a ruling on their motions to dismiss. A copy of this request was initially mailed by the respondents' counsel to the Mannings' street address. On November 23, 1998, respondents' counsel sent a second letter to the Mannings' post office box address indicating that he had sought the trial court's reconsideration of their motions to dismiss.

On November 23, 1998, the trial court entered an order dismissing the Mannings' petition without prejudice due to their failure to file the affidavit required by § 538.225. The Mannings contend that they never received a copy of this dismissal. The record on appeal reflects that the trial court mailed a copy of the dismissal to the Mannings at 3236 Windsor Ave., KCMO. This mailing was returned to the court, marked "attempted—not known/vacant." It does not appear that this mailing was resent by the trial court to the Mannings' post office box address.

The Mannings claim that they did not learn of the dismissal until over fifteen months later (February-March 2000). Three more months passed before the Mannings (through counsel) filed their motion with the trial court on June 19, 2000, seeking to vacate the November 24, 1998, order of dismissal. This motion was denied by the trial court, upon the basis that the motion was not filed until nearly nineteen months after the dismissal. In its order, the trial court relied upon Rule 74.03, which provides that a motion to vacate a dismissal is to be filed within six months of the dismissal.

Standard of Review

The Mannings incorrectly take the position that we should apply a de novo standard of review to the trial court's denial of their motion to vacate the November 23, 1998, dismissal. When reviewing the denial of a motion to vacate the dismissal of an action, we may only reverse when a review of the record clearly and convincingly reveals that the trial court has abused its discretion in denying the requested relief. See McMillan v. Wells, 924 S.W.2d 33, 35 (Mo.App.1996). Bearing this standard of review in mind, we turn to the points on appeal raised by the Mannings.

Is the Denial of the Motion to Set Aside the Dismissal an Appealable Order?

We first must address an issue candidly pointed out by the Mannings as it touches upon this court's jurisdiction. In this point the Mannings contend that the trial court's order, denying their motion to set aside the dismissal of their lawsuit, is an appealable special order given after final judgment.

This court has no jurisdiction to hear an appeal that is not taken from a final judgment or that does not fall within one of the exceptions delineated in § 512.020, RSMo. Even if not properly raised by the parties, issues regarding jurisdiction may be raised by this Court sua sponte. Beckmann v. Miceli Homes, Inc., 45 S.W.3d 533, 538 (Mo.App.2001).

The right to appeal is statutory and derived from § 512.020, RSMo, which states:

512.020. Who may appeal

Any party to a suit aggrieved by any judgment of any trial court in any civil

64 S.W.3d 845

cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his appeal to a court having appellate jurisdiction from any order granting a new trial, or order refusing to revoke, modify, or change an interlocutory order appointing a receiver or receivers, or dissolving an injunction, or from any interlocutory judgments in actions of partition which determine the rights of the parties, or from any final judgment in the case or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case.

(italics added.) The issue is whether the trial court's order denying the Mannings' motion to set aside the dismissal of their case is a "special order after final judgment."

The first question, then, is whether the dismissal entered November 23, 1998, was an appealable final judgment. Generally, a dismissal without prejudice does not constitute a final appealable order. Wilson v. Unistrut Serv. Co., 858 S.W.2d 729, 731 (Mo.App.1993). However, the Missouri Supreme Court has held that the dismissal of a petition for failure to file the affidavit required under § 538.225 constitutes a final judgment from which an appeal may be taken. Mahoney v. Doerhoff Surgical Svcs., 807 S.W.2d 503, 506 (Mo. banc 1991)(overruling Mullins v. Miller, 796 S.W.2d 119 (Mo.App.1990)). Thus, the underlying dismissal is a "final judgment" for purposes of the statute.


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