IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI ex rel. POLARIS 

INDUSTRIES, INC.,

Relator,

v.

THE HONORABLE JAMES K. 

JOURNEY,

Respondent.

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WD79746

OPINION FILED:

November 22, 2016

ORIGINAL PROCEEDING IN PROHIBITION

Before Writ Division: Lisa White Hardwick, Presiding Judge, and

Karen King Mitchell and Gary D. Witt, Judges

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.

Background

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 
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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).

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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 

 

1 All “Local Rule” citations are to the rules adopted by the Circuit Court of Bates County. All other rule 

citations are to the Missouri Supreme Court Rules (2016).

2 Cummings disagrees with Polaris’s characterization of the trial court’s order placing the Original Action on 

the inactive docket as an “order.” “Every direction of a court made or entered in writing and not included in a judgment 

is an order.” Rule 74.02. “In Missouri a written entry signed by the trial court is either a judgment, see Rule 74.01, 

or an order. Rule 74.02.” Lake v. McCollum, 324 S.W.3d 481, 487 n.12 (Mo. App. W.D. 2010). The order placing 

the Original Action on the inactive docket was signed and meets the definition of an order. Cummings provides no 

real support for her assertion otherwise.
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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 

 

3 At oral argument, Polaris acknowledged that if the November 3, 2011 order was self-executing, taking 

effect automatically on the expiration of the 60 days, the effective date was likely January 3, 2012, rather than 

January 2, 2012. This is because in 2012 New Year’s Day fell on Sunday, and, thus, Monday January 2, was likely 

an observed holiday. Because below and in briefing to this court, both parties used the January 2, 2012 date, we will 

use that date throughout this opinion.
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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.

Analysis

“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. 
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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 

applicable statute of limitations, the savings statute allows the lawsuit to be refiled within one year 

of a ‘nonsuit.’” Zinke v. Orskog, 422 S.W.3d 422, 425 (Mo. App. W.D. 2013).

“A ‘nonsuit’ is ‘[a] term broadly applied to a variety of terminations of an action which do 

not adjudicate issues on the merits.’” Id. (quoting BLACK’S LAW DICTIONARY 1058 (6th ed.

1990)). “A dismissal without prejudice is a nonsuit and permits a party to bring another civil 

action for the same cause.” Molder v. Trammell Crow Serv., Inc., 309 S.W.3d 837, 841 (Mo. App. 

W.D. 2010). “The savings statute allows a lawsuit to be re-filed within one year after a dismissal 

without prejudice of the first suit.” Id. at 842 (interpreting identical language in § 516.230). 

“Moreover, the initial dismissal begins the running of the one-year grace period provided in the 

savings statute, so that a re-filing within one year of the dismissal is within the statute of 

limitations.” Id.

If the one-year period to re-file the suit is calculated from January 2, the Second Action 

was filed more than a year from the nonsuit, and was untimely. Polaris argues that the dismissal, 

and therefore nonsuit, was automatic by the November 3, 2011 order’s terms, depriving the trial 

court of jurisdiction over the matter after January 2, and rendering the subsequent docket entry a 

nullity. Cummings argues that the November 3, 2011 order did not specify the date upon which 

the involuntary dismissal would take effect and that, therefore, the clerical entry of dismissal was 

necessary in order to effectuate a nonsuit. We need not determine whether the dismissal 
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automatically went into effect on January 2, because Polaris is incorrect that the trial court was 

divested of jurisdiction once the order was entered.

Polaris argues that the dismissal was automatically effective on January 2, and that the trial 

court was immediately divested of jurisdiction, rendering the subsequent docket entry “a nullity.” 

In support, Polaris cites Rickner v. Golfinopoulos, 271 S.W.3d 32 (Mo. App. W.D. 2008) and 

Kirby v. Gaub, 75 S.W.3d 916 (Mo. App. S.D. 2002), cases holding, correctly, that trial court 

orders of dismissal following a party’s voluntary dismissal are “a nullity,” because the trial court 

immediately loses jurisdiction over the action when a voluntary dismissal is filed. However, 

“[t]hese cases are inapposite as they involve involuntary dismissals which are governed by 

different rules.” Zinke, 422 S.W.3d at 426 n.8; Kirby, 75 S.W.3d at 918 n.3 (“An involuntary 

dismissal is not this case. Because different rules govern, the involuntary dismissal cases cited by 

Plaintiffs are inapposite.”). “With a voluntary dismissal, it is the plaintiff deciding to dismiss his 

cause of action, and it is the plaintiff acting to dismiss the case . . . , [thus] no action by the trial 

court” is required. Peet v. Randolph, 103 S.W.3d 872, 876 (Mo. App. E.D. 2003). “Once a 

permitted voluntary dismissal is filed, there is nothing pending before the trial court on which it is 

permitted to act, [other than to] enter administrative orders such as those with regard to the 

assessment of costs.” Zinke, 422 S.W.3d at 427.

“On the other hand, court action is required for an involuntary dismissal. There is no 

dismissal unless the court acts—either on its own motion, or by granting a defendant’s motion to 

dismiss.” Peet, 103 S.W.3d at 876. Further, even if the court acts to enter an involuntary dismissal, 

unless the dismissal is denominated as a judgment, the court retains jurisdiction. Davis v. Dep’t 

of Soc. Servs. Div. of Child Support Enf’t, 15 S.W.3d 42, 44-45 (Mo. App. W.D. 2000). When a

court involuntarily dismisses a case without prejudice, the court does not immediately lose 
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jurisdiction over the matter, but instead “retains jurisdiction over the matter so that the court [is]

allowed to reconsider its action, correct any errors, and modify or set aside its order.” Peet, 103 

S.W.3d at 876.

Here, regardless of whether the involuntary dismissal of the Original Action was effective 

on January 2, the trial court retained jurisdiction to modify its order. Polaris argues summarily 

that “[t]here is no evidence” that the trial court’s intent in making the January 10 docket entry was 

to modify the January 2 dismissal and make its order of dismissal effective January 10, 2012. But 

“[s]ummary judgment is proper [only] when the moving party demonstrates there is no genuine 

dispute about material facts and, under the undisputed facts, the moving party is entitled to 

judgment as a matter of law.” Parr v. Breeden, 489 S.W.3d 774, 778 (Mo. banc 2016). 

Accordingly, if there was a factual issue related to the court’s intent in entering the January 10 

docket entry, there remained an issue of material fact and the grant of summary judgment in favor 

of Polaris would have been inappropriate.

Stated another way, the question is whether the January 10 docket entry is an order that 

communicates a direction from the court or whether it is a ministerial act that simply memorializes 

the earlier court order. Polaris argues that the docket entry was simply a ministerial act. But there 

is nothing about the January 10 docket entry that precludes it from being an order, which can be 

accomplished by unsigned docket entry. Rule 74.02 (“Every direction of a court made or entered 

in writing and not included in a judgment is an order.”). A “trial court’s [unsigned] typewritten 

docket entry . . . qualifies as an ‘order’ under [Rule 74.02]. Notably, nothing in Rule 74.02 requires 

an order to be handwritten or signed by the judge.” Norfolk v. State, 200 S.W.3d 36, 39 (Mo. App. 

W.D. 2006). And, in ruling on the dispositive motions, the trial court apparently determined that 

the intent and effect of the docket entry was to make the dismissal effective on January 10. See
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Garner v. Dir. of Revenue, 893 S.W.2d 394, 395 (Mo. App. E.D. 1995) (using the trial court’s 

records to determine when “the [trial] court intended the dismissal to occur.”). Importantly, the 

same judge presided over both the Original Action and the Second Action, and was in the best 

position to discern the intent in making the docket entry. See Radmer v. State, 362 S.W.3d 52, 58 

(Mo. App. W.D. 2012) (“It is . . . important that the same judge presided at the trial and at the 

[subsequent] hearing, and was thus better equipped to assess the” prior case) (quoting State v. 

Wells, 804 S.W.2d 746, 749 (Mo. banc 1991))).

Further, the record provides a possible reason why the trial court might have felt additional

direction was necessary: while Local Rule 37 clearly indicates that the parties are to be notified 

of the date a dismissal is to occur,4the order placing the Original Action on the dismissal docket 

is not so clear, stating only that the dismissal will take place “without further order,” “[a]bsent 

removal from the inactive docket within 60 days.”5

Polaris has “the burden of showing that it had a clear and unequivocal right to” a writ. 

Estate of Hutchison, 494 S.W.3d at 608 (quoting Pub. Sch. Ret. Sys. of Sch. Dist. of Kansas City,

188 S.W.3d at 42). Under the circumstances of this case, we cannot say that Polaris has 

demonstrated a clear and unequivocal right to prohibition.

 

4 Under Local Rule 37(5), dismissal is “automatic upon the expiration of the 60 day time period without 

further action by the Court.” Local Rule 37(4), requires that the notice to counsel “that the case has been set on the 

inactive docket” (in this case the order placing the Original Action on the inactive docket) is to contain “the date on 

which the case will be dismissed.”

5 We note that much, if not all, of the parties’ confusion over the dismissal date could have been avoided, had 

the trial court: (1) more closely followed the directive of Local Rule 37(4) by including a date certain for dismissal 

on its order; and/or (2) clearly specified on the subsequent docket entry whether its intent was to effectuate dismissal 

on that date, or merely to note that dismissal had taken place per the terms of the order. We encourage the trial court, 

as well as courts in other circuits with similar local rules, to review the procedures for placement of cases on inactive 

or dismissal dockets, removal from those dockets, and dismissal of cases not timely removed, so as to avoid similar 

confusion.
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Conclusion

Because Polaris has failed to establish a right to a writ of prohibition, the preliminary writ 

is quashed.

Karen King Mitchell, Judge

Lisa White Hardwick, Presiding Judge,

and Gary D. Witt, Judge, concur.