from the Circuit Court of the City of St. Louis The Honorable
Rex M. Burlison, Judge.
Denvir Stith, Judge.
Williams Sr. appeals from the circuit court's overruling
of his Rule 74.06(b) motion to set aside the dismissal of a
wrongful death suit filed by his deceased son's
grandmother and the overruling of his motion to intervene in
that suit. Because he failed to comply with Rule 52.12
governing intervention and his motion was never ruled on
prior to the grandmother's voluntary dismissal of her
suit, he never became a party to the grandmother's suit.
Rule 74.06(b) does not authorize a non-party to file a motion
to set aside the judgment. Moreover, there was no judgment to
be set aside because the grandmother voluntarily dismissed
her suit and that dismissal took effect immediately upon
filing, without order of the court, under Rule 67.02(a).
Accordingly, the circuit court did not err in overruling
Williams' motion to set aside the dismissal of the
FACTUAL AND PROCEDURAL BACKGROUND
November 2009, the police shot and killed Darrell
Williams after a high-speed chase. Because of the
circumstances of the chase, members of Darrell's family
were suspicious of wrongdoing by the police. Darrell's
grandmother, Delores Henry, quickly filed a petition alleging
wrongful death in January 2010. In her petition, Ms. Henry
claimed she was Darrell's "next of kin," but
that was not the case. Darrell was also survived by his
father, Darrell Williams Sr., and his mother, Kathryn Love.
The parties agree that, because Darrell's mother and
father were alive, under section 537.080,  his grandmother
was not a proper plaintiff to bring the wrongful death suit.
But the grandmother nonetheless filed suit, perhaps because
both parents were incarcerated at the time of Darrell's
death. The defendants filed an answer to the
grandmother's petition, and the case proceeded without
addressing her authority to bring suit under section
in August 2010, six months after the grandmother filed her
suit, and periodically over the next nine months, while
incarcerated on unrelated crimes, Mr. Williams sent the court
at least six letters. Identifying himself in the letters as
Darrell's father, on August 30, 2010, he asked whether a
complaint had been filed for his son's death and, if it
had, whether the circuit court could provide him with a copy;
on November 12, 2010, he asked for a copy of the docket sheet
and the contact information for Ms. Henry's attorney; on
November 22, 2010, and again on December 16, 2010, he said he
wanted to become a plaintiff and asked for the current
discovery; and on February 25, 2011, he requested the docket
sheet. The record shows each of Mr. Williams' letters was
docketed, and the circuit court sent Mr. Williams some of the
information he had requested.
in May 2011, Mr. Williams sent the circuit court a
handwritten letter attaching a handwritten motion to join in
the grandmother's suit. The motion had the caption to the
grandmother's case and, in full, stated:
Comes now, plaintiff Darrell Williams, pro se, requesting to
become a plaintiff in cause #1022-CC00155, for the following
Plaintiff Darrell Williams Sr[.], is the father of the
deceased Darrell Williams Jr.
Wherefore plaintiff requests that this motion be granted.
Mr. Williams' motion conveyed his desire to become a
plaintiff and should have been understood as an attempt to
intervene, it failed to comply with the requirements of Rule
52.12(c), which provides:
A person desiring to intervene shall serve a motion upon all
parties affected thereby. The motion shall state the grounds
therefor, and shall be accompanied by a pleading setting
forth the claim or defense for which intervention is sought.
The same procedure shall be followed when a statute of this
state gives a right to intervene.
Williams did not serve his motion on the other parties to the
lawsuit, nor was it accompanied by a pleading setting out the
claim for which intervention was sought, as required by Rule
father did not attempt to correct the deficiencies in his
motion in the succeeding three years in which the
grandmother's suit was pending prior to April 2014, when,
shortly before trial was to occur, the grandmother
voluntarily dismissed her suit. Her voluntary dismissal
became effective upon filing under Rule 67.02. The father did
not argue to the circuit court that he still had a live claim
due to his pending motion to intervene, nor did he attempt at
any time to get a ruling on the motion or otherwise correct
the motion's deficiencies or object to the voluntary
dismissal or attempt to appeal it.
time the grandmother dismissed her lawsuit, the three-year
statute of limitations on the wrongful death claim had run.
§ 537.100.1. But Rule 67.02(c) provides that a
voluntary dismissal under Rule 67.02(a) is without prejudice,
and under section 537.100, the grandmother had one year in