State ex rel. Boyer v. Stussie, 40113

• Decision Date: 11 December 1979
• Docket Number: No. 40113,40113
• Citation: 592 S.W.2d 269
• Parties: STATE of Missouri ex rel. Arthur E. BOYER, Jr., Relator, v. Honorable Harry J. STUSSIE, Respondent.
• Court: Missouri Court of Appeals

Page 269

592 S.W.2d 269

STATE of Missouri ex rel. Arthur E. BOYER, Jr., Relator, v. Honorable Harry J. STUSSIE, Respondent.

No. 40113.

Missouri Court of Appeals, Eastern District, Division Two.

Dec. 11, 1979.

Frank J. Maginn, St. Louis, for relator.

Jay G. Newquist, Roberts, Heneghan & Coffelt, W. Monro Roberts, Jr., St. Louis, for respondent.

KELLY, Judge.

In this original proceeding in Prohibition, Arthur E. Boyer, Jr., the relator, seeks an order prohibiting the Honorable Harry J. Stussie, Judge, Division No. 2 of the Circuit Court of St. Louis County, from setting aside an order sustaining relator's motion for summary judgment. His motion was filed in a declaratory judgment action wherein Fireman's Fund Insurance Company is the plaintiff, and relator and one Loretta B. Ditz are the named defendants. We issued improvidently we think, our Preliminary Rule in Prohibition and now, after the issues are joined and the matter briefed and argued, we quash said Preliminary Rule in Prohibition and dismiss relator's petition at relator's cost.

The facts are that the relator was involved in an automobile collision with Loretta B. Ditz on May 19, 1975. At the time of this collision Mrs. Ditz was operating a 1973 Plymouth automobile. Mr. Boyer sustained severe injuries in the collision, including the loss of his lower left leg. On November 11, 1975, he instituted an action for damages for those injuries against Mrs. Ditz in the Circuit Court of St. Louis County.

On December 5, 1975, Fireman's Fund Insurance Company, (hereinafter referred to as Fireman's Fund) instituted a declaratory judgment action against both Mr. Boyer and Mrs. Ditz for a declaration of the rights, duties and other legal relations between the parties. Fireman's Fund sought to be relieved of all duties and liabilities under two policies of insurance it had issued, one to William H. Ditz, the Ditz's son, and the other to Mrs. Ditz and her husband, William Ditz. Fireman's Fund also sought an order restraining the defendants from filing or prosecuting any action upon said policies of insurance. The petition alleged that Fireman's Fund had issued two policies of automobile liability insurance covering the automobile being operated by Mrs. Ditz in the collision with the motor vehicle being operated by Mr. Boyer on May 19, 1975. One policy # Z3617075 was issued to William H. Ditz as the named insured and afforded $25,000.00 coverage for personal injury liability for each person. The other policy # Z2344007 was issued to Mrs. Ditz and her husband, William Ditz, as named insureds and afforded them $50,000.00 coverage for personal injury liability for each person. It further alleged that the Plymouth automobile was owned by William H. Ditz on the date of the collision.

On June 21, 1976 relator filed a Motion to Dismiss the petition for declaratory judgment. He filed an amended Motion to Dismiss on September 4, 1976, alleging that a certified registration certificate from the Motor Vehicle Bureau of the Missouri Department of Revenue, dated July 1, 1976, showed title to said vehicle to be in Mr. and Mrs. Ditz, not in their son, William H. Ditz. On September 25, 1976, relator filed his initial Motion for Summary Judgment and on October 14, 1976, the insurance company filed its First Amended Petition for declaratory judgment seeking the same relief prayed for in the original petition. On May 3, 1977, relator filed an Amended Motion for Summary Judgment and notified the insurance company that the motion would be called up for argument on July 12, 1977.

The question to be decided in the three count First Amended Petition for Declaratory Judgment, reduced to its simplest terms, is whether the insurance company would be required to defend Mrs. Ditz or would be held liable for any judgment Mr. Boyer might receive in his lawsuit for damages arising out of the collision of May 19, 1975.

Prior to filing its declaratory judgment action the insurance company had offered Mr. Boyer the $25,000.00 coverage afforded under the policy issued to William H. Ditz in settlement of Mr. Boyer's claim.

In Count I of its petition for declaratory judgment the insurance company sought a declaration that it owed Mrs. Ditz no defense in Mr. Boyer's suit for damages and that it would not be liable for any judgment rendered against Mrs. Ditz in that suit by reason of the provision in the omnibus clause of the policy issued to Mrs. Ditz and her husband because the Plymouth was a "non-owned automobile," titled to her son, William H. Ditz, and furnished for the regular use of Mrs. Ditz and was thereby excluded from coverage under the terms of the policy.

In Count II, the insurance company alleged alternatively, that if Mrs. Ditz and her husband were the owners of the Plymouth on the date of the collision, it nevertheless owed Mrs. Ditz no defense and should not be held liable under the policy in which they were named insureds because coverage of the Plymouth under the policy had been deleted by an endorsement of August 2, 1974.

In Count III the insurance company sought an order restraining Mr. Boyer from proceeding with the trial of his action for damages against Mrs. Ditz until the rights and legal relationships between the parties had been decided in the declaratory judgment action.

On May 3, 1977, Mr. Boyer filed his Amended Motion for Summary Judgment. Between July, 1977 and November 8, 1977, various written notices calling the motion for hearing were filed by both the insurance company and Mr. Boyer, but no hearings on the motion were held.

On November 8, 1977 counsel for the insurance company notified Mr. Boyer's counsel that his motion for summary judgment would be called up for hearing on December 9, 1977. On the following day, November 9, 1977, Mr. Boyer's counsel notified the insurance company that he would call the motion for hearing on November 18, 1977. Mr. Boyer's action against Mrs. Ditz for his injuries was set for trial in Division No. 15 of the Circuit Court of St. Louis County during the week of November 28, 1977.

The motion was not heard on November 18, 1977, but on November 25, 1977, in the absence of counsel for the insurance company or anyone representing the insurance company, Mr. Boyer's counsel appeared before respondent, reviewed the case with him and the following memorandum was prepared with the understanding that unless the respondent heard from the insurance company's counsel in the interim, it would be entered on November 28, 1977:

Defendant Boyer having heretofore filed his amended motion for summary judgment and/or motion for dismissal of plaintiff's petition for declaratory judgment, and plaintiff having filed no responsive pleadings thereto, defendant does hereby submit cause upon pleadings filed herein and memorandum of law heretofore filed.

On November 28, 1977, respondent entered the memorandum of November 25, 1977, noting thereon: "Motion sustained, H.J.S."

On January 6, 1978, the insurance company's counsel filed a Motion to Set Aside Court Order Dated November 25, 1977, on the grounds that it had not been noticed in writing that Mr. Boyer's motion would be heard on that date as required by Rule 44.01. On January 16, 1978, this motion was called, heard and sustained. The order dated November 25, 1977, was set aside on the grounds: (1) that no written notice calling Mr. Boyer's Motion for Summary Judgment for hearing on November 25, 1977, was ever filed with the court as required by Rule 44.01 and Rule 12(c) of the Rules of the 21st Judicial Circuit; (2) that no proof of service of any Notice calling said Motion for hearing on November 25, 1977 was ever filed in the court as required by Rule 12(c) of the Rules of the 21st Judicial Circuit; and (3) that neither Fireman's Fund, nor its attorneys received actual or constructive notice that Mr. Boyer's Motion for Summary Judgment would be heard on November 25, 1977. For those reasons the respondent found that he had no jurisdiction to hear and enter the order of November 25, 1977, and set it aside.

Mr. Boyer filed his petition for Writ of Prohibition in this court contending that respondent had no jurisdiction to enter the order of January 16, 1978.

It is relator's position that respondent acted in excess of his jurisdiction in that in a summary judgment proceeding under Rule 74.04 the notice provisions of Rule 44.01(d) and Rule 12(c) of the Rules of the 21st Judicial Circuit have no application. He argues that because Rule 74.04(c) is silent as to notice to an adverse party and requires only that a motion for summary judgment be served at least ten days before the time fixed for hearing, therefore the five day notice requirement of Rule 44.01(d) has no application to this "unique action."

Relator cites no authority for this argument and his action in serving notice calling up the motion for hearing upon the insurance company lawyers on several occasions between July and November, 1977, would...