State ex rel. Dos Hombres-Independence, Inc. v. Nixon

Relator, Dos Hombres-Independence, Inc., petitions this court for its writ of prohibition to preclude The Honorable W. Stephen Nixon from setting aside his March 2, 2000, "Judgment of Partial Dismissal" that dismissed plaintiffs' petition asserting a wrongful death claim against Dos Hombres-Independence, Inc. and from reinstating the wrongful death claim. This court's preliminary rule in prohibition was issued on September 28, 2000. The preliminary rule in prohibition is hereby made absolute.
James R. Mercer and Elizabeth A. Lower filed their petition on September 8, 1999, against Dos Hombres and two other named defendants alleging that decedent was killed when he was struck by a motor vehicle driven by an intoxicated minor who, immediately prior to the incident, had been a customer and business invitee of Dos Hombres' restaurant in Independence. The petition claimed that the driver of the vehicle had ingested alcoholic beverages served by Dos Hombres and that the minor driver had become intoxicated while at the restaurant. The petition asserted that Dos Hombres breached a duty to the decedent to control, supervise, and monitor its patrons outside the restaurant and that as a result of such breach of duty, the vehicle then driven by the intoxicated minor driver struck and killed the decedent.

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Defendant Dos Hombres claimed, and the record supports the conclusion, that the trial court understood that the rationale for the motion and, ultimately, the "Judgment of Partial Dismissal," was the plaintiffs' assertion in their petition that Dos Hombres was liable to them for the death of the decedent because it furnished alcoholic beverages to the minor driver who, as a result, became intoxicated and struck and killed the decedent. Thus, Dos Hombres was dismissed as a party defendant because section 537.053 declares that "furnishing alcoholic beverages is not the proximate cause of injuries inflicted by intoxicated persons."

According to Dos Hombres, the trial court's "Judgment of Partial Dismissal" became a final judgment thirty days after entry on March 2, 2000, because a timely motion for a new trial was not filed. Rule 81.05(a). Thus, Dos Hombres asserts that the "Judgment" was final on April 1, 2000. Dos Hombres also claims that plaintiffs had ten days from the date the "Judgment" became final in which to file a notice of appeal. Rule 81.04(a). Plaintiffs did not file a notice of appeal.
Plaintiffs filed their "Motion to Reconsider and Set-aside Judgment of Partial Dismissal Due to Missouri Supreme Court Decision" on July 17, 2000. The motion was based on the Missouri Supreme Court's opinion styled Kilmer v. Mun, 17 S.W.3d 545 (Mo. banc 2000), filed on May 9, 2000. In Kilmer, the Court declared that section 537.053, authorizing a dram shop cause of action only when the liquor licensee had been convicted for providing alcoholic beverages to intoxicated persons, violated the open courts provision of the Missouri Constitution. Id. at 554. The Court specifically overruled Simpson v. Kilcher. Id. at 553.

The trial court entered its "Notice of Intent to Enter Order" on August 28, 2000, in which it stated its intent to grant the plaintiffs' motion and set aside its "Judgment" entered March 2, 2000, and to "reinstate the claim on the active trial docket unless prohibited from doing so by Writ of Prohibition." Dos Hombres filed its petition for Writ of Prohibition with this court on September 13, 2000, and the preliminary rule in prohibition was entered on September 28, 2000, directing Respondent trial court to take no further action regarding its August 28, 2000, expressed intent to set aside the March 2, 2000, "Judgment" and to reinstate the petition as against Defendant Dos Hombres.

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Click the case caption above for the full text of the Court's opinion.

Where the trial court entered a "Judgment of Partial Dismissal" dismissing Dos Hombres as a party defendant from the plaintiffs' wrongful death claim, the judgment was final and appealable, and because the plaintiffs chose not to appeal the judgment, they are now foreclosed from reinstating their petition naming Dos Hombres as a party defendant.

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