State Ex Rel. McMullin v. Satz

BILLINGS, Chief Justice.

Original action in prohibition to challenge the jurisdiction of the court of appeals to award sanctions after it dismissed the case. The Court concludes that the court of appeals acted in excess of jurisdiction and that its award of sanctions was a nullity. Preliminary writ in prohibition made absolute.

Relator, Charles B. McMullin, was the attorney for plaintiff Marian B. Sherrill in an equity action in the Circuit Court of the City of St. Louis. Judgment at trial was entered in favor of the defendants. Following trial, plaintiff, by telephone and in writing, did on September 24, 1987, inform McMullin that “under no circumstances will I appeal this case.” Nevertheless, on December 14, 1987, McMullin appealed the case to the Missouri Court of Appeals, Eastern District. McMullin contends that he obtained plaintiff’s permission to appeal. Plaintiff, by affidavit, states that she did not alter her position of September 24.

*840On December 17, 1987 plaintiff retained John Gianoulakis as her new attorney and signed a letter prepared by Gianoulakis discharging McMullin as her attorney. On January 8, 1988 Gianoulakis filed a memorandum with the court of appeals dismissing plaintiffs appeal.

On January 22,1988, the court of appeals entered an order striking McMullin as plaintiffs attorney of record and dismissing plaintiffs appeal. The order specifically stated that “the Court does not reach the issue of whether costs and expenses of this appeal, including the attorney’s fee for Mr. Gianoulakis, should be assessed against Mr. McMullin.”

Thereafter, on January 27, 1988, Gianou-lakis filed a motion for sanctions and attorney’s fees pursuant to Rule 55.03. Respondent sustained the motion on March 24, 1988 awarding $6,887.40 in favor of Gianoulakis to be paid by McMullin. After unsuccessful attempts to vacate this order, McMullin sought a writ of prohibition from this Court and a'preliminary rule issued.

Rule 8^.09 states that “an appellant may file a dismissal of his appeal in the appellate court at any time prior to the submission of the case in the appellate court.”

Here, appellant Marian Sherrill filed a voluntary dismissal of her appeal on January 8, 1988, and the court dismissed the appeal on January 22, 1988. Once the court dismissed the appeal, it lost all jurisdiction over the case. See State ex rel. Fisher v. McKenzie, 754 S.W.2d 557, 558 (Mo. banc 1988), (a circuit court lacks jurisdiction to hear a motion for sanctions after a case is dismissed); Garrison v. Jones, 557 S.W.2d 247, 249-250 (Mo. banc 1977), (once a case is dismissed, any subsequent order issued by the court is a nullity); Emigh Engineering Company, Inc. v. Rickhoff, 605 S.W.2d 173, 174 (Mo.App.1980), (upon a voluntary dismissal there is nothing before the court on which it can act). These cases stand for the proposition that a trial court loses its jurisdiction and can take no further action after a plaintiff voluntarily dismisses his case. The same principle necessarily applies where the appellant voluntarily files a dismissal of appeal prior to submission of the case and the court dismisses the case.

Rule 84-09 authorized the dismissal and the general rule is that the dismissal disposes of the whole case. 5 C.J.S. Appeal and Error, § 1384 (1958); Lovins v. Mutual Commerce Casualty Co., 237 Mo.App. 651, 156 S.W.2d 955 (1941); Bench v. Watts, 109 S.W.2d 893 (Mo.App.1937); Bowser v. City of St. Louis, 182 S.W. 1066 (Mo.App.1916).

The court of appeals was without jurisdiction to enter the award and its order is a nullity.

Writ made absolute.

WELLIYER, ROBERTSON and RENDLEN, JJ., and GAITAN and CONLEY, Special Judges, concur. BLACKMAR, J., dissents in separate opinion filed. DONNELLY and HIGGINS, JJ., not sitting.