State ex rel. Fisher v. McKenzie
| Decision Date | 26 July 1988 |
| Docket Number | No. 70038,70038 |
| Citation | 754 S.W.2d 557 |
| Parties | STATE ex rel. J. Cecil FISHER, Lena M. Fisher, Joe W. Fisher, and Sue Fisher, Relators, v. The Honorable Ronald R. McKENZIE, Judge of the Circuit Court of Monroe County, Respondent. |
| Court | Missouri Supreme Court |
Jerome W. Seigfreid, Louis J. Leonatti, Ann P. Hagan, Paul A. Seigfreid, Mexico, for relators.
Thomas B. Alleman, Kansas City, Fairfax Jones, St. Louis, Edwin J. Carlton, Columbia, Marion Wasinger, Hannibal, for respondent.
The issue is whether the Circuit Court of Monroe County exceeded its jurisdiction by overruling plaintiffs' voluntary dismissal without prejudice, filed pursuant to Supreme Court Rule 67.01 before the introduction of evidence at trial. The trial court overruled plaintiffs' dismissal motion and retained jurisdiction in order to hear the parties' motions for sanctions and to permit the defendants to file a counterclaim. The court had no jurisdiction to overrule the dismissal motion because the plain language of Rule 67.01 provides a right of voluntary dismissal at the time the dismissal was filed in this case. The preliminary writ in prohibition is made absolute.
Relators filed their civil action for damages in 1982 alleging they had sustained property damage from exposure to the toxic chemical Paraquat, released by aerial application to a neighboring field owned by defendant Charles O'Laughlin. Relators subsequently alleged they also sustained personal injuries when the chemical drifted onto their property.
Estech, Inc., the company alleged to have arranged for the spraying of the O'Laughlin field, was subsequently joined as a defendant. Chevron Chemical Company, the manufacturer of the Paraquat, was joined as a third-party defendant by Estech. Relators then filed their fourth amended petition October 3, 1985, naming Chevron as an additional defendant. The other defendants named were James E. Rufener d/b/a Green Acre Crop Services, the company owning the airplane that applied the Paraquat; Spray Planes, Inc., the company that leased from Rufener the airplane used to apply the chemical; Charles O'Laughlin the owner of the field; and Terry Beautte, the pilot who applied the Paraquat.
Thereafter O'Laughlin filed a cross-claim against all defendants seeking indemnity for any judgment entered against him and in addition sought recovery for his attorney fees and expenses. Defendants Beautte and Rufener entered into a settlement agreement with relators; their motion for summary judgment against the claim of defendant O'Laughlin, based on the settlement agreement, was denied.
At the time relators' dismissal motion was filed, the following matters were pending: Chevron's cross-claim against Spray Planes, Inc.; Estech's cross-claim against Chevron; O'Laughlin's motion for summary judgment; relators' motion for sanctions against Chevron; Chevron's motion for a protective order; and Chevron and Spray Planes' joint motion for sanctions against relators.
Relators filed a motion to dismiss their fourth amended petition without prejudice on November 4, 1987. On November 5, 1987, the defendants filed objections to relators' dismissal motion and a counterclaim against relators. November 5 was also respondent's law day, and relators' counsel was present in court for another case when he was advised by respondent that objections to the dismissal motion, which had been filed without notice to relators, would then be heard. Counsel for relators objected to this proceeding and informed respondent that it was relators' position that no case was pending before the court because of the dismissal.
Respondent conceded relators' dismissal to be under Rule 67.01, yet proceeded to hear the matter over relators' objection. On November 13, 1987, respondent entered an order overruling relators' motion to dismiss and granting defendants leave to file the counterclaim they had delivered to the clerk on November 5, 1987. Thereafter relators filed a petition for writ of prohibition in the Missouri Court of Appeals. That petition was denied November 20, 1987.
On November 21, 1987, relators filed a motion to dismiss defendants' counterclaim which was denied by the respondent at a hearing November 31, 1987. Thereafter relators filed their own counterclaim, alleging defendants' counterclaim was frivolous. At about the same time relators filed interrogatories and requests for production of documents addressed to each of the counterclaiming defendants. On December 16, 1987, relators filed a motion for continuance to which defendant Estech responded by filing a motion for separate trial. The separate trial was subsequently granted.
Upon relators' application, this Court issued its preliminary writ in prohibition which prohibited the trial court from proceeding to trial. Relators now argue the preliminary writ should be made absolute because respondent acted without jurisdiction in its November 13, 1987, order refusing to allow the dismissal which complied with all the provisions of Rule 67.01:
A civil action may be dismissed by the plaintiff without prejudice without order of the court any time prior to the introduction of evidence at trial....
There had been no trial at the time of the dismissal and relators argue that under Garrison v. Jones, 557 S.W.2d 247, 249 (Mo. banc 1977), they are entitled, as a matter of right, to dismiss their petition without prejudice. In Garrison the plaintiff's dismissal motion was overruled, as in this case. The Court held:
Plaintiff-appellant had the right to dismiss the petition without prejudice at the time such was done in this case. That dismissal rendered the subsequent order of the circuit court, which overruled plaintiff's motion to dismiss without prejudice and sustained defendant's motion to dismiss with prejudice, a nullity.
Garrison, 557 S.W.2d at 249, 250.
Garrison was relied upon in Emigh Engineering Co., Inc. v. Rickhoff, 605 S.W.2d 173 (Mo.App.1980), where it was held the trial court could not set aside plaintiff's voluntary dismissal and reinstate the case on the trial docket because the court was without jurisdiction after the dismissal. The court explained When a plaintiff files his dismissal memorandum no action is required on the part of the trial court to make the dismissal effective. The cause is dismissed forthwith.... Once plaintiffs voluntarily dismissed the action there was nothing before the court upon which it could act.
The same principle has been restated as follows:
Bell v. Kitt, 655 S.W.2d 881, 883 (Mo.App.1983), quoting with approval Bryan v. Smith, 174 F.2d 212 (7th Cir.1949); See also Samland v. J. White Transp. Co., Inc., 675 S.W.2d 92 (Mo.App.1984). These cases and the plain language of Rule 67.01 support relators' claim that they had a right of voluntary dismissal in this case.
Respondent claims these cases are distinguishable because none involved other claims, cross-claims, or counterclaims between the parties, as does this case. Respondent argues the trial court maintained jurisdiction over the parties by virtue of the pending cross-claims and counterclaims under Rule 67.05, which provides: "No dismissal, voluntary or involuntary, of a plaintiff's civil action in which a counterclaim or cross-claim has been filed shall operate to dismiss or discontinue such counterclaim or cross-claim." This rule preserves jurisdiction of the court over the remaining claims. Thus, respondent argues, the trial court had continuing jurisdiction to permit the defendants to file their counterclaim against plaintiffs subsequent to the filing of plaintiffs' dismissal. For authority respondent cites Medallion Insurance Co. v. Wartenbee, 568 S.W.2d 599 (Mo.App.1978), which held: "Plaintiff's voluntary dismissal of his lawsuit does not operate to dismiss or discontinue a mandatory counterclaim, Rules 55.32(a) and 67.05; and ordinarily the court in which it was filed would remain the forum for the prosecution free from interference by a court of concurrent jurisdiction." Id. at 600.
Medallion does not support respondent's position because in Medallion defendant's counterclaim was filed before plaintiff's suit was voluntarily dismissed. Thus, the court had jurisdiction under Rule 67.05 to hear the claim. In this case the counterclaim was filed after the voluntary dismissal and the court did not have jurisdiction over the case to hear the counterclaim. Garrison, 557 S.W.2d 247; Samland, 675 S.W.2d 92; Emigh, 605 S.W.2d 173; Rule 67.01. Rule 67.05 is inapplicable because at the time of the dismissal there were no counterclaims pending.
This holding will not affect State ex rel. Keeling v. Randall, 386 S.W.2d 67 (Mo. banc 1964), where the Court harmonized Rule 67.01, authorizing plaintiffs' voluntary dismissal, and Rule 66.01(b), permitting consolidation of civil actions involving a common question of law or fact. The Court in Keeling prohibited the husband from dismissing, under Rule 67.01, his cause of action for loss of services from the consolidated action involving the wife's personal injury suit. In this situation the interest of justice and judicial economy become paramount and Rule 66.01(b) is given priority over Rule 67.01.
Respondent argues Stubblefield v. Seals, 485 S.W.2d 126 (Mo.App.1972), establishes that plaintiffs do not have an absolute right to take a voluntary dismissal without prejudice if the evidence shows the defendant would...
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