Civil Practice and Procedure

 Editor:
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