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State ex rel. Polaris Industries, Inc. v. Journey

Court of Appeals of Missouri, Western District, Writ Division

November 22, 2016


          Before: Lisa White Hardwick, Presiding Judge, and Karen King Mitchell and Gary D. Witt, Judges


          Karen King Mitchell, Judge

         Relator, Polaris Industries, Inc., seeks a writ prohibiting Respondent, the Honorable James K. Journey, Circuit Judge of Bates County, from taking any action other than granting Polaris's motion for judgment on the pleadings in the underlying action. Finding Polaris did not demonstrate a clear and unequivocal right to the relief requested, we quash the preliminary writ of prohibition.


         The parties largely agree on the relevant facts. On May 27, 2004, Plaintiff Tonna Cummings's husband was operating a 1995 Polaris "Big Boss 6x6" all-terrain vehicle (ATV) to spray weeds for Husband's employer when the ATV allegedly overturned. Cummings claims that, as a result of the incident, Husband became trapped underneath the ATV and sustained fatal injuries.

         On March 4, 2005, Cummings commenced a wrongful-death action against Polaris (the Original Action), alleging defects in the ATV's design, manufacture, and warnings. After the litigation had been pending for over five years, Respondent entered an order placing the case on the court's "inactive docket." The order was signed by Respondent on November 3, 2011, and filed the same day. The order placing the Original Action on the inactive docket explained that the case could be removed from the inactive docket "only on written motion, with notice to the opposing parties, and for good cause shown." The order further stated that, "Absent removal from the inactive docket within 60 days of this date [November 3, 2011], this case will automatically be dismissed without prejudice and without further order." (Emphasis in the original document.) This is consistent with Local Rule 37(3), (6), [1] which states that "[a]ny case placed on the inactive docket shall be dismissed without prejudice upon sixty (60) days of placement on the inactive docket" unless the party shows good cause for its removal from the inactive docket. All such dismissals "shall be automatic upon the expiration of the 60 day time period without further action by the Court." Local Rule 37(5).[2]

         Cummings did not file a motion to remove the case from the inactive docket at any time on or before January 2, 2012-the sixtieth day after the November 3, 2011 order placing the case on the inactive docket.[3] An unsigned docket entry dated January 10, 2012 notes: "Dismiss by Ct w/o Prejudice"; and, at the top of the docket sheet it reads, "Disposition: Dismiss by Ct w/o Prejudice" and "Disposition date: 10-Jan-2012."

         On January 4, 2013, Cummings commenced a second action (the Second Action) by filing a Petition for Damages, restating her wrongful-death claims against Polaris. Polaris filed a motion for judgment on the pleadings on the ground that the statute of limitations barred Cummings's claims. Polaris noted that the three-year statute of limitations for wrongful-death actions expired many years before Cummings filed the Second Action, and it further argued that the statute's one-year savings provision did not apply because the Second Action was commenced more than one year after January 2, 2012, which Polaris argued was the date of dismissal of the Original Action. Cummings opposed Polaris's motion, arguing that the dismissal of the Original Action did not take effect until January 10, 2012, when the entry was made on the circuit court's docket sheet.

         Following a hearing on Polaris's motion, Respondent entered an order denying the motion. Polaris sought a writ of prohibition from this court, and we entered a preliminary order.

         Standard of Review

         "Prohibition is a discretionary writ that . . . issues [only] to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extrajurisdictional power." State ex rel. Schwarz Pharma, Inc. v. Dowd, 432 S.W.3d 764, 768 (Mo. banc 2014). "A writ of prohibition 'is the appropriate remedy to prevent a lower court from proceeding on an action barred by the statute of limitations.'" State ex rel. Beisly v. Perigo, 469 S.W.3d 434, 437 (Mo. banc 2015) (quoting State ex rel. Holzum, 342 S.W.3d 313, 315 (Mo. banc 2011)). However, "[a] party seeking a writ has 'the burden of showing that it had a clear and unequivocal right to the . . . relief requested.'" Estate of Hutchison v. Massood, 494 S.W.3d 595, 608 (Mo. App. W.D. 2016) (quoting Pub. Sch. Ret. Sys. of Sch. Dist. of Kansas City v. Mo. Comm'n on Human Rights, 188 S.W.3d 35, 42 (Mo. App. W.D. 2006)).

         Both Polaris and Cummings submitted materials outside of the pleadings in connection with Polaris's motion for judgment on the pleadings. Thus, Polaris's motion for judgment on the pleadings is treated as a motion for summary judgment. Rule 55.27(b) ("If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment . . . ."). An appellate court "seldom grants a writ to compel the grant of a motion for summary judgment, but . . . issuance of a writ 'can be an appropriate remedy where a trial court erroneously permits a claim that is barred by the statute of limitations to proceed to trial.'" State ex rel. Heart of Am. Council v. McKenzie, 484 S.W.3d 320, 324 (Mo. banc 2016) (quoting State ex rel. Bloomquist v. Schneider, 244 S.W.3d 139, 141 (Mo. banc 2008)). "The standard of review of the grant or denial of summary judgment is de novo." Id.


         "Section 537.080.1 sets forth the cause of action for wrongful death and delineates who is entitled to sue for damages." Beisly, 469 S.W.3d at 437. "Section 537.100 states that every action brought pursuant to section 537.080 'shall be commenced within three years after the cause of action shall accrue.'" Id. Much more than three years passed between the accident and the filing of the Second Action. However, "[s]ection 537.100 contains explicit tolling exceptions . . . ." Id. One of the exceptions applies when "any such action shall have been commenced within the time prescribed in this section, and the plaintiff therein take or suffer a nonsuit." § 537.100. In that situation, "such plaintiff may commence a new action from time to time within one year after such nonsuit suffered." Id. "Thus, where refiling of a lawsuit would otherwise be barred by an ...

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