Anderson v. Central Missouri State University, WD

• Decision Date: 27 February 1990
• Docket Number: No. WD,WD
• Citation: 789 S.W.2d 41
• Parties: 60 Ed. Law Rep. 1020 Caroline ANDERSON, Appellant, v. CENTRAL MISSOURI STATE UNIVERSITY, et al., Respondents. 42134.
• Court: Missouri Court of Appeals

Page 41

789 S.W.2d 41

60 Ed. Law Rep. 1020

Caroline ANDERSON, Appellant, v. CENTRAL MISSOURI STATE UNIVERSITY, et al., Respondents.

No. WD 42134.

Missouri Court of Appeals Western District.

Feb. 27, 1990.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

April 24, 1990.

Application to Transfer Denied June 19, 1990.

Leonard K. Breon, Warrensburg, for appellant.

Thomas W. Wagstaff, William F. High, Kansas City, for respondents.

Before KENNEDY, P.J., and LOWENSTEIN and BERREY, JJ.

BERREY, Judge.

Caroline Anderson appeals the denial of her motion, filed under Rule 74.06(b)(5), by which she sought relief from an adverse judgment entered against her on October 22, 1985. Appellant contends that the trial court erred in its denial of relief because a prior judgment denying relief on grounds subsequently removed by a remedial act is not a bar to a new action on the claim as validated. Affirmed.

On June 26, 1982, Caroline Anderson fell on a brick patio while on her way to a wedding reception held at the Pertle Springs Lodge at Central Missouri State University. She filed suit on June 16, 1983, alleging that the fall occurred because of an unreasonably dangerous sidewalk. Central Missouri State University claimed sovereign immunity under § 537.600, RSMo 1978, which was interpreted by the Missouri Supreme Court to require either that the state or its agency adopt a plan of self-insurance or the purchase of liability insurance for a waiver of immunity to exist. Bartley v. Special School District of St. Louis County, 649 S.W.2d 864, 870 (Mo. banc 1983). Central Missouri State University did not have liability insurance, nor had it adopted a self-insurance plan. The trial court granted summary judgment against appellant. This court affirmed the trial court's ruling in Anderson v. Central Missouri State University, 709 S.W.2d 893 (Mo.App.1986). In 1985, § 537.600 was amended, eliminating the insurance requirement for waiver of sovereign immunity. This court, relying on State ex rel. Missouri Highway and Transportation Commission v. Appelquist, 698 S.W.2d 883 (Mo.App.1985) held that § 537.600 was not retroactive to Anderson's claim.

Two years after Anderson was decided, the Missouri Supreme Court decided Wilkes v. Missouri Highway and Transportation Commission, 762 S.W.2d 27 (Mo. banc 1988). In Wilkes, the court held that, "Section 537.600, RSMo 1986, is retroactive...." Id. at 28. The court stated that Anderson and Appelquist, "should not be followed." Id. at 29.

Based upon Wilkes, appellant filed her Motion for Relief under Rule 74.06(b)(5), which states that:

the court may relieve a party ... from a final judgment or order for the following reasons ... (5) 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.

The trial court overruled appellant's motion. This appeal followed.

The appellant alleges that the trial court erred in denying her relief in that a prior judgment denying relief on grounds subsequently removed by a remedial act is not a bar to a new action. She contends that until the Missouri Supreme Court handed down Wilkes, supra, she was without a remedy in view of this court's decision in Anderson v. Central Missouri State University, supra, 709 S.W.2d 893, which did not observe the now acknowledged retroactivity of § 537.600.

The trial court is vested with broad discretion when acting on motions to vacate judgments. Citizens Bank of University City v. Gehl, 567 S.W.2d 423, 425 (Mo.App.1978). An appellate court should not interfere with the action taken by the trial court "unless the record clearly and convincingly demonstrates an abuse of such discretion." Luce v. Anglin, 535 S.W.2d 504, 506 (Mo.App.1976).

It should be noted that in the original litigation the trial court treated the matter as one involving summary judgment stating that, "[u]nder Rule 55.27 this Court may treat the Motions to Dismiss as ones for summary judgment." Accordingly, Central Missouri State University was granted judgment against appellant. A grant of summary judgment is treated as a judgment on the merits of the cause, entitled to a res judicata effect between the parties. Molasky v. Brown, 720 S.W.2d 412, 414 (Mo.App.1986). Such is true in the instant case.

Rule 74.06 is similar to Federal Rule 60. The Federal Rule also contains a provision for relief from a final judgment if that judgment has been "satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated." Fed.R.Civ.P. 60(b)(5). The United States District Court for the Eastern District of Missouri, when interpreting the Federal Rule, explains its meaning in Ben Hur Construction Company v. Goodwin, 116 F.R.D. 281 (E.D.Mo.1987). The court in Ben Hur states what the rule does not mean:

While Rule 60(b)(5) authorizes relief from a judgment on the ground that the prior judgment upon which it was based has been reversed or vacated, it does not authorize relief from a judgment on the ground that the law applied by the court in making its adjudication is declared erroneous in another and unrelated proceeding.

Id. at 283; See 7 J. Moore & J. Lucas, Moore's Federal Practice, par. 60.26 (2d ed. 1987).

In express terms, rather, the rule authorizes relief from a judgment on the ground that prior judgment upon which it is based has been reversed or otherwise vacated. That is to say, the rule operates where the present judgment is based on a prior judgment in the sense of res judicata or collateral estoppel. Harris v. Martin, 834 F.2d 361, 364 (3rd Cir.1987); Wallace Clark & Co., Inc. v. Acheson Indus., Inc., 394 F.Supp. 393, 395[2-4] & n. 4 (S.D.N.Y.1975).

This rationale is found to be persuasive. Originally, the trial court's grant of summary judgment on the grounds of sovereign immunity was affirmed by this court relying on Appelquist, supra. The decision of Wilkes, supra, overruled Appelquist and Anderson I stating that they "should not be followed." Wilkes v. Missouri Highway and Transportation Commission, supra, 762 S.W.2d at 29. Thus, relief is not proper in this instance and the denial of such relief was well within the discretion of the trial court.

Rule 74.06 also gives the trial court the option to relieve the effects of the final judgment on the ground that "it is no longer equitable that the judgment remain in force." The counterpart of...