Vilsick v. Fibreboard Corp.

Decision Date27 July 1993
Docket NumberNo. 62670,62670
PartiesRita VILSICK, et al., Plaintiffs/Appellants, v. FIBREBOARD CORPORATION, et al., Defendants/Respondents.
CourtMissouri Court of Appeals

Walter L. Floyd and Alan J. Agathen, Clayton, for plaintiffs/appellants.

David S. Slavkin and Robert G. Lancaster, St. Louis, Dennis J. Dobbels, Polsinelli, White, Vardeman & Shalton, P.C., Kansas City, MO, Bradley McMillan, Peoria, IL, Tim Seifest, Edwardsville, IL, Kay G. Noonan, Lawrence R. Leonard, Watson, Ess, Marshall & Enggas, Kansas City, Janice Dansby, Abowitz & Welch, Oklahoma City, OK, Joel A. Poole, Polsinelli, White, Vardeman & Shalton, P.C., Kansas City, Kristine McGee, Brown & James, P.C., St. Louis, for defendants/respondents.

AHRENS, Presiding Judge.

Plaintiffs, Rita A. Vilsick, Thomas P. Burton, Mary C. Burton, William L. Burton, and James C. Burton, appeal from an order of the Circuit Court of the City of St. Louis dismissing with prejudice their petition for wrongful death for failure to refile the petition within the one-year "savings" statute, § 516.230 RSMo 1986. We affirm.

Plaintiffs' petition, filed March 25, 1992, sought damages on negligence and products liability theories against eleven corporations involved in the manufacturing, processing, and sale of asbestos and asbestos-related products, defendants Fibreboard Corporation; GAF Corporation; Owens-Corning Fiberglass Corporation; Owens-Illinois, Inc.; Pittsburgh-Corning Corporation; Combustion Engineering, Inc.; Armstrong World Industries, Inc.; AC & S, Inc.; Garlock, Inc.; Keene Corporation; and National Gypsum Company. 1

Defendants each filed motions to dismiss plaintiffs' petition, alleging the petition was untimely filed in violation of the one-year "savings" statute, § 516.230 RSMo 1986. Defendants contended the case was time-barred because a prior lawsuit between the parties had been dismissed without prejudice for failure to prosecute in October, 1990, more than one year before the filing of the present case. The trial court sustained defendants' motions and dismissed plaintiffs' petition with prejudice.

The relevant facts are as follows. Plaintiffs originally filed their lawsuit against defendants on December 5, 1983. Several years later, on October 9, 1990, the trial court entered the following order:

This cause shall stand dismissed without prejudice on October 19, 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 order was included in the court file, but no notice of the dismissal order was mailed to plaintiffs or defendants. Pursuant to Local Rule 37 of the Circuit Court of the City of St. Louis, notice was published in the St. Louis Daily Record on October 11, 1990, that the case was on the dismissal docket of October 19, 1990. 2 Plaintiffs' case was thereafter dismissed. Plaintiffs claim they did not receive notice of entry of the dismissal as is required pursuant to Rule 74.03.

Plaintiffs filed no pleadings or discovery in the case from October, 1990, until February, 1992. On February 18, 1992, plaintiffs attempted to file a notice of hearing on plaintiffs' motion for a trial setting. On that date, plaintiffs discovered the case had been dismissed in October, 1990. Plaintiffs did not file a motion to set aside or vacate the judgment, but rather refiled suit against defendants. The petition filed in the second case did not allege the trial court in the first case lacked jurisdiction over the parties or the subject matter, or challenge the judgment in any way. The dismissal of the second cause of action is the subject of this appeal.

Plaintiffs contend the trial court erred in dismissing their second suit because dismissal of the first suit was invalid in two respects. First, plaintiffs assert that because the order dismissing the original suit stated the case would be dismissed "ten days hence," it was invalid as failing to operate in praesenti and was in fact a nullity, so that no judgment was ever entered in the first case. Second, plaintiffs argue dismissal of the first suit violated their due process rights to predismissal and postdismissal notice, as the court did not send plaintiffs notice the case was on a dismissal docket or send them notice once the case had been dismissed.

In their first point, plaintiffs assert the order of October 9, 1990, was invalid as a dismissal, in that it did not operate in praesenti and was not followed by an order subsequently dismissing the case. In support of this claim, plaintiffs rely on Wallace v. Hankins, 541 S.W.2d 82 (Mo.App.1976), and State ex rel. Great Am. Ins. Co. v. Jones, 396 S.W.2d 601 (Mo. banc 1965). These decisions are inapposite.

Wallace involved a judgment in favor of the plaintiffs for specific performance which was conditioned upon performance of certain future acts or, alternatively, judgment in ejectment for the defendants. A second judgment extended the time of performance. These judgments were found to be conditional and alternative and therefore not final, appealable judgments because they did not perform in praesenti and left to "speculation and conjecture what their final effect may be." Wallace, 541 S.W.2d at 84. In contrast, the dismissal here was not "dependent on the performance of future acts by a litigant." See id. The order specifically stated the cause "shall stand dismissed." The order was not conditional, although it was not effective for ten days and gave plaintiffs the right to have the order "set aside" upon timely filing of discovery schedule and docket card setting the cause for trial on a date certain. Further, the order here was not intended to be an adjudication of the case on the merits. The order of dismissal was without prejudice, which allowed plaintiffs to refile their action unless it was otherwise barred. Rule 67.03. The dismissal without prejudice was a nonsuit within the meaning of § 516.230, and plaintiffs could have timely refiled their petition within one year of the dismissal. Section 516.230 RSMo 1986. See also Ritter v. Aetna Cas. & Sur. Co., 686 S.W.2d 563, 564-565 (Mo.App.1985).

The Jones case is also distinguishable. Jones involved an order of dismissal which was stayed by an order made the next day. The stay order was later extended pending an appellate ruling on a writ of mandamus. Under those circumstances, the dismissal order was found to be only an "indication of the ruling and judgment [the court had] decided to enter", and therefore was interlocutory and not a final judgment. Jones, 396 S.W.2d at 602-03. The order in the present case, however, was definite and certain in stating the cause "shall stand dismissed" on October 19, 1990.

Plaintiffs, citing Healer v. Kansas City Pub. Serv. Co., 251 S.W.2d 66 (Mo.1952), also contend that because the dismissal order was self-executing ten days after the date it was entered, the order was invalid and no judgment was ever entered in the first case. Healer, however, involved an order requiring a witness to sign a deposition within thirty days, in violation of a state statute. The appellate court found the order invalid because it contravened the statute and was entered without the judicial power of the court. Id. at 70. The Healer court did not decide the issue of whether the trial court might have entered a valid order requiring plaintiff to sign a deposition within a certain time under other circumstances. Id. at 69. Here, plaintiffs do not allege that the trial court did not have authority to enter a dismissal order for failure to prosecute. The future effective date of the dismissal order did not invalidate the order. See State ex rel. Berbiglia, Inc. v. Randall, 423 S.W.2d 765 (Mo. banc 1968) (the court found that a decree stating a lease "should be and is voided from and after 30 days from this date" was neither interlocutory nor conditional). Point one is denied.

In point two, plaintiffs allege dismissal of the first case was void because plaintiffs did not receive notice that the court had placed the case on a dismissal docket or notice once the case had been dismissed. Plaintiffs contend both the notice by publication of the dismissal docket and the court's failure to send notice after the case had been dismissed violated due process requirements.

Plaintiffs' second claim of error pertains to whether the dismissal of the first cause of action was void. The dismissal of a case, however, may not be collaterally attacked for the purpose of permitting the same cause of action to be pursued by the same parties in a newly filed case. See, e.g., Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387, 390 (1948); Warren v. Associated Farmers, Inc., 825 S.W.2d 901, 905 (Mo.App.1992); State ex rel. Vicker's, Inc. v. Teel, 806 S.W.2d 113, 116-17 (Mo.App.1991). A collateral attack is an attempt to impeach a judgment in a proceeding not instituted for the express purpose of annulling the judgment. Beil v. Gaertner, 355 Mo. 617, 197 S.W.2d 611, 613 (1946).

In Bindley, 213 S.W.2d 387, the trial court dismissed the action for want of prosecution. Approximately eleven months later, the plaintiff re-filed the action, and, on the motion of defendants, the case was again dismissed. Plaintiff appealed the second dismissal. The court found that the plaintiff could not attack the judgment which had been entered in the first case in the appeal of the second dismissal, stating, "the judgment of dismissal is not subject to collateral attack." Id., 213 S.W.2d at 390.

Similarly, in Teel, 806 S.W.2d 113, the trial court dismissed the plaintiff's cause of action for failure to prosecute. The plaintiff did not challenge the dismissal, and, seven weeks later, re-filed the action....

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