Amick v. Horton

689 S.W.2d 369, 1985 Mo. App. LEXIS 3289
CourtMissouri Court of Appeals
DecidedApril 15, 1985
DocketNo. 13582
StatusPublished
Cited by5 cases

This text of 689 S.W.2d 369 (Amick v. Horton) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amick v. Horton, 689 S.W.2d 369, 1985 Mo. App. LEXIS 3289 (Mo. Ct. App. 1985).

Opinion

CROW, Presiding Judge.

Ruby Lee Amick (“plaintiff”) appeals from an order dismissing her cause of action with prejudice. The order was entered because plaintiff failed to answer interrogatories served on her by the two defendants: her son, Dale E. Amick, and her son-in-law, Eugene Horton.

The suit began February 16, 1982, when Columbia Mutual Insurance Company, formerly Midland Mutual Insurance Company (“the insurer”), filed a petition against the two defendants, alleging that on September 28, 1981, a dwelling owned by plaintiff and insured by the insurer against loss by fire was “wholly and totally destroyed by fire.” The petition, filed by attorney L. Dwayne Hackworth, pleaded that the fire occurred when defendant Horton parked a pickup truck owned by defendant Amick close to plaintiff’s dwelling and attempted to charge the pickup’s battery with a charger connected to a power source in the dwelling. According to the petition, the pickup had a defect in its wiring which caused the pickup to catch fire. That fire then ignited the dwelling. The petition charged both defendants with negligence in that they “knew the wiring in said pickup truck was faulty but failed to take necessary precautions to prevent such a fire.”

The petition explained that by reason of the loss, the insurer paid plaintiff the policy limits of $18,000 on the dwelling and $4,000 on the contents. The insurer, claiming it “became subrogated to and was assigned by” plaintiff all of her rights against the defendants, sought judgment for $22,000.

Plaintiff was not originally a party to the suit, but on July 2, 1982, the insurer, per attorney Hackworth, filed a motion seeking leave to join plaintiff as a party because “she claims an interest relating to the subject of this action and her joinder is necessary to allow complete relief to be given in this matter.”

Leave was granted, and a second amended petition, consisting of two counts, was filed. In Count I, the insurer reiterated its claim against both defendants. In Count II, plaintiff, alleging she had sustained $34,000 damages because of the fire, prayed for judgment in that amount against both defendants.

On September 22, 1982, the defendants served written interrogatories on plaintiff. Plaintiff neither answered nor objected to the interrogatories within the 20 days allowed by Rule 57.01(a), Missouri Rules of Civil Procedure (13th ed. 1982).

On April 13, 1983, attorney Hackworth mailed to defendants’ attorney a notice stating that on May 2, 1983, he would appear in court and “call up the above styled cause and request a trial setting at the earliest possible date.”

On April 18, 1983, defendants filed a “Motion Opposing Trial Setting,” asserting that because of plaintiff’s failure and refusal to answer the interrogatories, discovery had not been completed and could not be completed until the interrogatories were answered. That same day (April 18, 1983) defendants also filed a “Motion for Sanctions,” asking the court to order plaintiff to answer the interrogatories “within a [371]*371time certain, and failing to do so, to enter appropriate relief under Rule 61.”

On May 2, 1983, the trial court entered the following order:

“Motion For Sanctions sustained; Plaintiff ordered to answer interrogatories within 20 days or petition dismissed without further order or notice; clerk to notify counsel. Motion opposing trial setting sustained.”

On May 12, 1988, the trial court received from attorney Hackworth a motion for leave to withdraw as counsel for plaintiff. The motion stated that plaintiff “has requested that I withdraw my appearance as her attorney.”

The next entry on the trial court’s docket sheet is dated June 20, 1983. It states:

“Motion To Withdraw sustained; Order filed; Clerk to notify Plaintiff Ruby Am-ick.”

The “Order” referred to in the entry states:

“On May 2, 1983, in response to defendant’s [sic] Motion For Sanctions, the Court made the following docket entry:
‘Motion For Sanctions sustained; plaintiff ordered to answer interrogatories within 20 days or petition dismissed without further order or notice; clerk to notify counsel. Motion Opposing Trial Setting Sustained.’
It is further ordered by the Court that the Clerk of the Court mail a copy of this order to Plaintiff Ruby Lee Amick, at her last known address to-wit: Route 1, Box 127, Alton, Missouri, 65606.
It is further ordered that if said Ruby Lee Amick does not respond to the order of May 2,1983 by the 5 day of July 1983, the petition herein will be dismissed without further order or notice.”

A docket entry dated June 21, 1983, states: “Copy of Order mailed to Ruby Amick.”

On June 29, 1983, the following “Stipulation for Dismissal with Prejudice” was filed:

“Comes now Plaintiff Midland Mutual Insurance Company (now Columbia Mutual Casualty Insurance Company), and its attorney, L. Dwayne Hackworth of Piedmont, Missouri, and, also comes Defendants Eugene Horton and Dale E. Amick, and by their attorney, Patrick 0. Freeman, Jr., and the parties and their counsel hereby stipulate and agree that the plaintiff’s claim against defendants shall be dismissed with prejudice at the cost of the defendants.”

The stipulation bore the signature of an official of the insurer, the signature of attorney Hackworth, representing the insurer, and the signature of attorney Freeman, representing the two defendants.

The next activity in the case occurred when the trial court entered the following “Order of Dismissal”:

“COMES NOW on this 5th day of July, 1983, Plaintiff Midland Mutual Insurance Company (now Columbia Mutual Casualty Insurance Company), in person and by its attorney L. Dwayne Hackworth, and Defendants Eugene Horton and Dale E. Amick, by their attorney Patrick O. Freeman, Jr., and submit to this Court Stipulation For Dismissal With Prejudice.
The Court finds that said Stipulation For Dismissal With Prejudice is not unconscionable and that said Stipulation is approved as submitted and that said cause be dismissed with prejudice at the costs of defendant [sic].”

Three days later, on July 8, 1983, plaintiff filed answers to defendants’ interrogatories.

On July 20, 1983, defendants filed a motion pointing out that plaintiff’s answers had been filed “three days late.” Defendants prayed that the answers “be stricken pursuant to Supreme Court Rule 61 and that plaintiff’s petition be dismissed.”

On August 4, 1983, plaintiff, through her present attorney, filed a motion praying “that the Dismissal with Prejudice entered on July 5, 1983 be set aside and that this cause be reinstated.” As grounds therefor, plaintiff alleged that at the time of the dismissal, she “was without counsel and did not understand the legal consequences [372]*372of not filing timely her answers to said Interrogatories.” It is evident from this motion that plaintiff (or her attorney) feared either that the order of July 5, 1983, had dismissed plaintiff’s claim along with the insurer’s claim, or that the trial court’s order of June 20, 1983, became self-executing when plaintiff failed to file her answers to interrogatories by July 5.

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Cite This Page — Counsel Stack

Bluebook (online)
689 S.W.2d 369, 1985 Mo. App. LEXIS 3289, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amick-v-horton-moctapp-1985.