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February 5, 1991


Writ of Prohibition from the Circuit Court of St. Louis County. Honorable Kenneth M. Romines.

Carl R. Gaertner, P.j. Stanley A. Grimm and Paul J. Simon, Judges, concur.

The opinion of the court was delivered by: Gaertner

Dr. Bart Kairuz, defendant and relator, seeks our writ prohibiting the Honorable Kenneth M. Romines, respondent, from placing the underlying case, Kevin Butler v. Dr. Bart Kairuz, on the trial docket and directing him to vacate his order of October 2, 1989 and to reinstate his order of September 11, 1989, dismissing the action with prejudice.

The parties are in agreement regarding the following facts. Kevin Butler filed a petition against Dr. Bart Kairuz in October, 1984 seeking damages for medical malpractice as a result of alleged negligent acts in November and December, 1982. Almost three years after the petition was filed, on July 20, 1987, plaintiff voluntarily dismissed his action. On July 19, 1988, plaintiff filed a second and identical petition which defendant timely answered. Plaintiff did not answer interrogatories defendant submitted on March 15, 1989. On May 30, 1989, the court issued an order compelling discovery within 30 days. Still no answers were forthcoming. On August 1, 1989, the court again ordered plaintiff to answer the interrogatories within 20 days or face dismissal of the action. No answers having been received, defendant moved to dismiss on August 29, 1989, and on August 31, sent notice to plaintiff of a hearing on this motion scheduled for September 11, 1989. Although plaintiff's attorney failed to appear, the motion was taken up at the scheduled time and sustained. Defendant's attorney mailed a copy of the order of dismissal to plaintiff's attorney that same day. On October 2, 1989, respondent, on his own motion and without notice to either party and without stating any reason, set aside the order of dismissal and granted plaintiff an additional 30 days to answer the interrogatories. No notice of the entry of this order was served upon either party as required by Rule 74.03. On November 27, 1989, plaintiff's answers to interrogatories were filed. On May 29, 1990, after receiving notice of a trial setting, defendant filed a motion to strike the order of October 2, 1989 and to strike plaintiff's answers to the interrogatories. This motion was denied on June 20, 1990. Defendant then filed a motion to dismiss and to remove the case from the trial docket. This motion to dismiss was denied but the cause was removed from the trial docket for 90 days. Defendant then petitioned for a Writ of Prohibition.

The following allegations made by the respective parties are not admitted and in some instances are expressly denied. None of the following allegations are supported by the record presented to us.

Plaintiff's attorney claims that upon receipt of the notice of the September 11 hearing he spoke to an associate in the office of defendant's attorney. He explained his failure to answer the interrogatories was due to his inability to locate his client. At the Conclusion of this conversation he understood the motion to dismiss would not be taken up on September 11. Upon receipt of a copy of the order of dismissal he went to the courthouse but could not locate the court file. On September 29, 1989, he was at the courthouse and again was unable to locate the file. On that date he spoke, ex parte, to Judge Romines who told him he would find the file and the lawyer should call back in the next week. Plaintiff's attorney denies any Discussion with Judge Romines concerning the facts of the case during this conversation. On October 3, he called Judge Romines' division and was informed of the October 2 order setting aside the dismissal. After locating his client and answering the interrogatories, albeit beyond the 30 days granted in the order, he called defendant's attorney regarding further discovery but was advised the case had been dismissed and the defendant's file was closed. Plaintiff's attorney took no further action until served with the motion to strike in May, 1990.

Defendant's attorney expressly denies any conversation prior to September 11, 1989, regarding cancellation of the motion to dismiss hearing. She claims that in December, 1989, after receiving the answers to interrogatories, she examined the court file and no order setting aside the September 11 dismissal was contained in the file. Upon receipt of a notice of a trial setting in May, 1990, she again examined the court file. The October 2 order setting aside the dismissal was in the file at that time.

We are confined to the record presented to us and will not speculate regarding disputed facts not supported by the record. Verdin v. Agnew, 715 S.W.2d 544, 546 (Mo. App. 1986). Accordingly, we disregard the unsupported claims of the attorneys and limit our consideration to those facts not in dispute and to the copies of the court records filed in support of the petition. We have set forth the respective claims of the attorneys in order to demonstrate the insoluble confusion which results from judicial action without notice and without opportunity for the parties to make a factual record susceptible of appellate review. The situation further demonstrates how the absence of notice leads the parties to follow different paths leading to different Conclusions regarding the effect of the passage of time limitations for the taking of appropriate action for the preservation of their respective rights.

Rule 75.01 provides in pertinent part:

The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time.

There is no question that the October 2, 1989 order, entered without notice and without giving the parties an opportunity to be heard, violates this rule. Additionally, non-compliance with the rule is demonstrated by the total absence of anything in the record tending to show the court's action was based upon a showing of good cause.

Rule 74.03 provides:

Immediately upon the entry of an order or judgment, the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 43.01 upon each party who is not in default for failure to appear and who was not present in court in person or by attorney at the time of the entry of such order or judgment. If such notice is not given, the order or judgment shall be set aside for good cause shown upon written motion filed within six months from the entry of the order or judgment.

The parties agree no notice of entry of the October 2 order was served upon them by the clerk. Thus, it appears ...

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