Civil Practice and Procedure
John S. Sandberg, Esquire
Suicide may support a wrongful death claim if it is a direct result of an injury. Kivland v. Columbia Orthopaedic Group, LLP, No. 90708 (Mo. banc, January 25, 2011), Wolff, J.
Dr. Gaines performed surgery on plaintiff's spine and afterwards
plaintiff was paralyzed and suffered continuous and extreme pain. He
sued the surgeon and his employer for negligence. Eight months after
filing the medical negligence suit, Gerald Kivland committed suicide.
Thereafter, the widow filed a wrongful death suit to allege both a
wrongful death and a survivor claim. The defense moved to strike the
plaintiff's expert witness whose opinion was that Gerald Kivland's
death was a direct result of the pain from surgery. The circuit court
granted the motion to strike, and summary judgment on the wrongful
death claim and the appeal followed. That claim was appealed under
Rule 74.01(b). The survivor claim remained pending.
Held: Reversed. The plaintiff
attempted to plead a claim for lost chance of survival but such a claim
does not survive the death of the patient. As for the wrongful death
claim, the defense argued that the decedent had to be suffering from a
diagnosed mental disorder or mental illness of some sort. The Supreme
Court disagreed and held that the proper standard is that the
decedent's death must be the direct result of defendant's negligence,
and there is no exception for when the death is by suicide.
Dismissals without prejudice are not appealable. Williams v. Colonel Jerry Lee, No. 90988 (Mo. banc, January, 11, 2011), per curium.
Joseph Williams pleaded guilty at a military tribunal to two
specifications of violation of the Uniform Code of Military Justice.
Missouri law did not require him to register as an offender, but in
2002 the law changed to require registration. In 2009 Williams filed
an action for declaratory judgment stating that he was not required to
register. The trial court sustained a motion to dismiss without
specifying that the dismissal was with prejudice. Williams appealed.
Held: Reversed. Since Rule 67.03 provides that
involuntary dismissals are without prejudice unless the court specifies
otherwise in the order, the dismissal was without prejudice and orders
to dismiss without prejudice are not appealable.
Damage assessment requires a hearing. Court of 5 Garden Condominium Association v. 10330 Old Olive, LLC, No. 94576 (Mo. App. E.D., December 14, 2010), Gaertner, J.
Plaintiff filed suit for breach of contract and on account.
Defendant was served but did not appear. The court entered a default
judgment for principal, interest and attorney's fees. The defendant
initially filed a motion to set aside the default judgment which was
not verified and did not have affidavits in support. After it was
denied, the defendant filed a verified motion to reconsider the order of
the court. The motion to reconsider may be treated as a motion from
the trial under Rule 78.01, but the court has discretion not to do so.
Finally, the defendant challenged the damage award since a
determination of damages requires there must be evidence and a
hearing. The court determined that it would be a manifest injustice to
permit the award of damages in the absence of any proof. Accordingly,
the case was remanded for purposes of a hearing on damages.
Judge disqualification is automatic. Joshi v. Ries, No. 94289 (Mo. App. E.D., November 16, 2010), Cohen, J.
The plaintiff filed an application for change of judge but did not
mail defendants a copy. Defendants filed a motion to transfer venue
and thereafter plaintiff refiled the same application for change of
judge and mailed a copy to defendants. Judge Dowd heard arguments on
both applications. The application for change of judge was denied and
transfer of the case to the Circuit Court of St. Louis County was
ordered. The court granted a summary judgment after the plaintiff
failed to timely respond to the motion.
Held: Reversed. While the defense
argued that the judge was performing a ministerial function in
transferring venue, the court disagreed. Pursuant to the mandate of the
rule he should have granted the motion to disqualify. (Note: Editor is a member of Respondent's firm).
The Missouri Bar Courts Bulletin, 11-Mar