                                         In the
                        Missouri Court of Appeals
                                 Western District
 AIRIKA DAWN HIBBS AND JAMES                 )
 HIBBS,                                      )
                                             )   WD82215 Consolidated with
                Appellants,                  )   WD82269
                                             )
 v.                                          )   OPINION FILED:
                                             )   September 3, 2019
 BRAD A. KEITH,                              )
                                             )
               Respondent.                   )

              Appeal from the Circuit Court of Henry County, Missouri
                        The Honorable James K. Journey, Judge

Before Division Three: Gary D. Witt, Presiding Judge, Edward R. Ardini, Jr., Judge and
                            Thomas N. Chapman, Judge


      Appellants Arika and James Hibbs (collectively "Hibbses") appeal the judgment of

the circuit court of Henry County imposing upon the Hibbses a $500 sanction or fee to be

paid to the law firm of Harris and Hart, LLC, legal counsel for respondent Brad Keith

("Keith"). The Hibbses raise three allegations of error. This Court finds that because the

circuit court lacked jurisdiction over the parties at the time of its order and judgment it

must be reversed and vacated.
                                Procedural and Factual Background

        The present appeal stems from a lawsuit over a motor vehicle accident which

occurred on April 4, 2014. The Hibbses brought suit against Keith alleging that his

negligent operation of his motor vehicle caused the accident and injuries to Arika Hibbs.

The Hibbses were represented by attorneys with the law firm of Andrew J. Gelbach, P.C.,

including Andrew Gelbach ("Gelbach"). Keith was represented by attorneys with the law

firm of Harris and Hart, LLC. After years of litigation, the parties entered into a settlement

agreement on March 8, 2018, the terms of which Keith fully complied with on or before

April 17, 2018. The settlement agreement by its express terms required the cause of action

against Keith to be dismissed with prejudice. Despite repeated requests from Keith, the

Hibbses failed to dismiss their petition with prejudice as was required by the settlement

agreement. Keith filed a Motion to Enforce Settlement Agreement on August 18, 2018.

The court set the motion for hearing on October 9, 2018 ("Hearing"). Approximately 30

minutes before the Hearing, and nearly six months after Keith had fully complied with the

settlement, the Hibbses voluntarily dismissed their case with prejudice by electronic filing.1

        The Hearing was a special setting in the circuit court. Despite the dismissal being

filed, the circuit court called the case for Hearing. Counsel for Keith appeared at the

hearing. Fred Branson, appeared as counsel for the Hibbses. The trial court granted the




        1
          While not reflected in the record before this court, Counsel for the Hibbses argued in oral argument that
an e-mail was sent to counsel for Keith the evening before the scheduled hearing. The hearing was held on a
Tuesday morning, so the e-mail would have been sent on Monday night. That Monday was a holiday and the courts
were closed.

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motion to dismiss and following that, Keith's counsel made an oral motion for sanctions.2

Following the Hearing, the court made a handwritten docket entry stating that "Ms. Hart

requests attorney's fees. Oral Motion--Sustained. $500 fees is ordered paid by Plaintiff to

Harris & Hart" that docket entry was eventually amended to be denominated a final

judgment ("Final Judgment").

                                                      Discussion

         The Hibbses raise three points on appeal alleging that the circuit court erred when

it entered sanctions. The first point is dispositive. The Hibbses first point on appeal alleges

that the circuit court erred in ordering sanctions because it lacked jurisdiction to do so

because the underlying action had been dismissed prior to the oral motion for sanctions

being raised. We agree.

         Keith does not challenge that the Hibbses had a right to voluntarily dismiss their

case under Rule 67.02(a).3 "[O]nce a case has been dismissed under Rule 67.02, 'it is as if

the suit were never brought.'"4 State ex rel. Frets v. Moore, 291 S.W.3d 805, 812 (Mo.

App. S.D. 2009) (quoting Givens v. Warren, 905 S.W.2d 130, 132 (Mo. App. E.D. 1995)).

Once dismissed, "[t]he circuit court may take no further steps as to the dismissed action,

and any step attempted is viewed a nullity." State ex rel. Frets, 291 S.W.3d at 812 (quoting


         2
            Rule 67.02(a) provides that the plaintiff may dismiss an action "without order of the court," therefore the
effect of the trial court's order purporting to grant the motion to dismiss, only served to recognize that the action had
been dismissed by the plaintiff. The original docket entry by the circuit court described the oral motion made following
the dismissal as a request for "attorney's fees." It is only in a later order that the circuit court refers to the motion as
an "oral Motion for Sanctions" and grants the requested sanctions. The Hearing was not transcribed. The final
judgment before this Court grants "attorney's fees" while the parties in their briefing refer to the granting of
"sanctions." For clarity, we use the term "sanction" as used by the parties.
          3
            All rule references are to Missouri Supreme Court Rules (2018).
          4
            We note there were no pending counterclaims, cross claims or other remaining actions between the parties
at the time of the dismissal.

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State ex rel. Rosen v. Smith, 241 S.W.3d 431, 433 (Mo. App. E.D. 2007)). As explained

by the court in State ex rel. Frets, "The Fretses' action, having been voluntarily dismissed,

was no longer a 'case or matter' as described in Article V, section 14 and as required for

the exercise of the jurisdiction granted to the circuit court by that section." Id. at 812 n.6.

       The refusal of the Hibbses to comply with the terms of the settlement agreement and

dismiss their claim until 30 minutes prior to the Hearing was extremely dilatory,

unnecessarily obstructionist and wasted the time of opposing counsel and the judicial

resources of the circuit court. The actions of the circuit court holding the Hearing, taking

up the oral motion, finding counsel for the Hibbses was "without justifiable excuse" for

failing to dismiss the cause previously and awarding sanctions reflects an understandable

frustration with the discourteous actions of counsel for the Hibbses. However, generally

speaking, because after a voluntary dismissal there is no longer a case or matter over which

the circuit court can exercise jurisdiction over the parties the sanctions order was a nullity.

       Keith contends that, despite the underlying case being dismissed under Rule

67.02(a), the court retained jurisdiction to decide the motion for sanctions under Rule

67.05. Rule 67.05 states, in relevant part:

       No dismissal, voluntary or involuntary, of a plaintiff's civil action shall
       operate to discontinue any ancillary matter pending before the court. If an
       ancillary matter is not ruled on within ninety days after the dismissal, it is
       denied.

By its clear terms, Rule 67.05 only applies to pending matters. Keith's oral motion for

sanctions was not raised until after the action had already been dismissed. Keith cites to

no Missouri case law, nor can we independently find any such law, which allows a court


                                               4
to consider an ancillary matter not brought before the court until after a voluntary dismissal

had been filed. Because Keith's motion for sanctions was not made until after the dismissal,

under its clear terms Rule 67.05 did not apply. We need not and do not reach the issue of

whether a motion for sanctions would in fact be deemed an ancillary matter pursuant to

Rule 67.05 had it been filed prior to the dismissal.

       While we are sympathetic to the frustration felt by both the circuit court and Keith's

counsel, we find that the circuit court did not have the authority to act where the case was

voluntarily dismissed with prejudice prior to any motion for sanctions being brought.

       The Hibbses second and third points on appeal raise additional bases for why the

circuit court erred in ordering sanctions. Given our holding above, we need not address

the Hibbses other points on appeal.

                                        Conclusion

       For the reasons stated above, the Final Judgment ordering sanctions is vacated.


                                           __________________________________
                                           Gary D. Witt, Judge

All concur




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