In 2002 and 2003, the appellants in this case, along with numerous other claimants,
In February 2012, the appellants filed with the Jackson County Circuit Court a “Motion to Reopen Case, Void the Settlement and Releases, and Vacate Orders Affirming Awards of Special Master.” With the motion to vacate, the appellants also filed a “Motion to Unseal,” seeking an order unsealing the pleadings and exhibits, which included records involving the Courtney settlement agreement. The circuit court denied both of the motions, and the appellants now appeal those determinations to this court.
On appeal, the appellants assert that the circuit court erred in denying their motion to void the settlement agreement and vacate the circuit court’s orders affirming the award of the Special Master for three reasons. First, they contend that the circuit court erred in relying ón the reasonableness of the settlement as a basis to deny the motion. Second, they claim that the circuit court acted in a manner inconsistent with due process in supervising and implementing the settlement process. Third, they allege that the circuit court erred in holding that their case should fail under the basic doctrine of waiver. In regard to the circuit court’s denial of their motion to unseal, the appellants claim that the circuit court failed to recognize or apply the presumption of open access to judicial records and failed to articulate any legally sufficient reason for sealing judicial records. Further they contend that, even if the circuit court articulated a legally sufficient reason for sealing the records, the circuit court abused its discretion in sealing the records because the reasons cited by the pharmaceutical companies for sealing the records are insufficient as a matter of law.
In handling this appeal, this court issued a bifurcated briefing and argument schedule. We ordered the parties to brief and argue the issue of whether the circuit
The procedural posture of this case is unique. Appellants filed a motion with the circuit court seeking to void a settlement agreement that they entered into with the pharmaceutical companies over ten years ago. In so moving, they asserted that their attorneys, who represented them during the settlement agreement, allegedly violated Rule 4-1.8(g)
The starting point, however, for application of Rule 74.06(b)(4) is a judgment. By its plain terms, Rule 74.06(b)(4) provides relief from a “judgment” only.
Indeed, there was no judgment entered in appellants’ cases because all
Thus, to the extent that the appellants sought a declaration from the circuit court within their dismissed cases that the settlement agreement that they entered into with the pharmaceutical companies was void because it was against Missouri Law and because it violated their rights to due process, the circuit court could take no further steps within these dismissed actions. The circuit court, therefore, did not err in denying the appellants’ “Motion to Reopen Case, Void the Settlement and Releases, and Vacate Orders Affirming Awards of Special Master.”
The appellants also assert that the circuit court erred in denying their motion to unseal. In essence, the appellants are challenging the circuit court’s decision to maintain the confidentiality of all matters related to the settlement agreement. In particular, the appellants complain that the circuit court failed to recognize or apply the presumption of open access to judicial records and failed to articulate any legally sufficient reason for sealing judicial record. Further, they contend that, even if the circuit court articulated a legally sufficient reason for sealing the records, the circuit court abused its discretion in sealing the records because the reasons cited by the pharmaceutical -companies for sealing the records are insufficient as a matter of law.
Given that we find that the circuit court did not err in denying the appellants’ motion to set - aside the settlement agreement, the provision in the settlement agreement, where the appellants agreed to keep all matters related to the settlement “strictly confidential,” remains valid and enforceable. By signing the settlement agreement, the appellants agreed that all matters related to the settlement were to be kept confidential. The appellants, along with the pharmaceutical companies, therefore, essentially asked the circuit court to seal the record and‘ everyone proceeded with the matter with the record under seal.
All concur.
Notes
. More than 400 personal injury and wrongful death plaintiffs entered into the settlement agreement with the pharmaceutical companies. The motion to vacate at issue in this
. Appellants claim that there is no record of dismissal of the pharmaceutical companies in Kathyrn Calohan’s case. See note 8 infra for a discussion of this case.
. The Missouri Supreme Court, adopted this rule in 1985 and amended it in 2007. The pre-2007 version of the Rule did not include the provision that the informed consent must be "in writing signed by the client.” The revision does not impact the issues in this case.
. Rule 4-1.8(g) states that "[a] lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients ... unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims ... and of the participation of each person in the settlement.” We recognize that the Kansas Supreme Court in a malpractice action against one of the attorneys involved with the settlement in this case found that "the unavailability of the information required to by disclosed by Rule 4-1.8(g) simply corroborated that [the settlement agreement in this case] was an aggregate settlement and rendered it impossible for [the attorney] to obtain [his client’s] informed consent under [Rule 4-1.8(g)].” Tilzer v. Davis, Bethune & Jones, LLC,
. Appellants also claimed in their motion that the circuit court’s orders affirming the awards of the Special Master could be set aside under Rule 74.06(b)(5) and Rule 74.06(d). Rule 74.06(b)(5) allows the court to relieve a party from a final judgment if "the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment remain in force.” Rule 74.06(d) allows the court "to entertain an independent action to relieve a party from a judgment or order or to set aside a judgment for fraud upon the court.” Appellants on appeal have not asserted that the circuit court’s orders affirming the awards of the Special Master should be set aside on the basis of Rule 74.06(b)(5) or Rule 74.06(d). " ‘[A] question not presented in an appellant’s brief will be considered abandoned on appeal and no longer an issue in the case.' ” Lewis v. Fort Zumwalt Sch. Dist., 260 S.W.3d 888, 890 (Mo.App.2008) (citation omitted). Although appellants in their reply brief contend that they never limited their argument on appeal to just Rule 74.06(b)(4), we find no discussion of Rule 74.06(b)(5) or 74.06(d) in appellants’ initial brief. ”[W]e do not review an assignment of error made for the first time in the reply brief.” Arch Ins. Co. v. Progressive Cas. Ins. Co.,
. Appellants rely on two cases in support of their contention that this court may review a "voidness” challenge under Rule 74.06(b)(4) to a trial court’s "order" rather than a judgment. Neither of those cases, however, address specifically whether Rule 74.06(b)(4) can be used to set aside a void order and are, therefore, not persuasive. In the first case, In the Interest of C.J.G.,
. Appellants point to four orders by the circuit court and argue that these orders, taken collectively, should be treated as a judgment. None of these orders, however, meet the requirements of Rule 74.01. In their reply brief, Appellants note that,, in the wrongful death cases involved in this case, the circuit court entered judgments entitled “Judgment and Order of Approval of the Proposed Allocation of Wrongful Death Settlement.” Appellants seemingly suggest that, because in their motion to vacate they moved to vacate "any orders or judgments of record that pose a procedural obstacle to re-opening this case,” their Rule 74.06 motion challenged these wrongful death judgments as well, and we, therefore, can use these judgments to set aside the settlement agreement as void under Rule 74.06. In the appellants' motion to vacate before the circuit court, however, the appellants asked the circuit court "to vacate prior court orders affirming the awards of the special master pertaining to these Plaintiffs,” void the Plaintiff's releases, and allow them to reinstate their claims against the pharmaceutical companies. In a footnote in their motion to vacate, the appellants noted that "the relevant orders” to be vacated were: "(1) Order acknowledging [settlement agreement] and appointing Special Master (Dec. 27, 2002); (2) Order approving the distribution of Tier 2 (May 27, 2003); (3) Order approving] the distribution of Tier 3 (Sept. 12, 2003); and ... [ (4) 0]rders overruling various Plaintiffs’ objections to the settlement allocations[.]” Appellants did not mention the wrongful death judgments in its list of "relevant orders.” The same is true in regard to a judgment entered by the circuit court in the case by one of the claimants, Jerome Tilzer. In regard to that case, the pharmaceutical companies filed a motion to enforce the settlement, and the Tilzer family’s áttomey filed a separate motion to enforce attorney's lien. The Tilzers hired a new attorney, and, at the hearings and in response to the motions, the Tilzers argued that the settlement agreement violated Rule 4-1.8(g) and was void as against public policy. The circuit court granted the motion to enforce the settlement, ordered the dismissal of the Tilzer claims against the pharmaceutical companies, and granted the motion for attorneys fees. The circuit court expressly ruled that the Tilzers’ attorneys did not violate Rule 4-1.8(g) and that the settlement should not be set aside. The circuit court incorporated all of this into a writing denominated a judgment, but the Tilzers did not appeal from that judgment. Moreover, the wrongful death judgments and the Tilzer judgment would not serve as a basis to set aside the settlement as to all the appellants.
. Appellants claim that the record does not establish that all claimants voluntarily dismissed their claims against the pharmaceutical companies. Appellants state that "[t]here appears to be no record of dismissals of [the pharmaceutical companies] in Kathyrn Cálo-han’s case”. Even if a claimant did not voluntarily dismiss his or her case as the settlement agreement required, the claimant could not overcome the hurdle that there was no judgment entered in this case that could be set aside pursuant to Rule 74.06.
. In determining whether a dismissal is voluntary, Missouri courts consider whether the individual filing the dismissal was authorized to do so. Elam v. Dawson, 216 S.W.3d 251, 256 (Mo.App.2007). In their, initial brief on appeal, Appellants did not assert that the dismissals were defective because their attorneys lacked the authority to enter the voluntary dismissals. Instead, they merely complained that they were not adequately informed by their attorneys about all the terms of the settlement agreement and, therefore, the settlement agreement should be declared void. Such complaints do not establish that their attorneys lacked the authority to file the voluntary dismissals on their behalf. In their reply brief, however, appellants assert that the attorneys lacked authority to file the voluntary dismissals. As noted previously supra at n.' 5, ”[W]e do not review an assignment of error made for the first time in the reply brief.” Arch Ins. Co.,
. There is some dispute as to what the circuit court has actually sealed in this case. For the purpose of this appeal, it is not necessary to determine which documents were filed under seal.
. We note that, in In re Transit Cas. Co.,