Andes v. Albano, 75027

• Citation: 853 S.W.2d 936
• Decision Date: 25 May 1993
• Docket Number: No. 75027,75027
• Parties: Josephine A. ANDES, Appellant, v. Michael J. ALBANO, et al., Respondents, Theodore R. Knox, et al., Defendants.
• Court: United States State Supreme Court of Missouri

Page 936

853 S.W.2d 936

Josephine A. ANDES, Appellant, v. Michael J. ALBANO, et al., Respondents Theodore R. Knox, et al., Defendants.

No. 75027.

Supreme Court of Missouri En Banc.

May 25, 1993.

David T. Greis, William H. Pickett, Kansas City, for appellant.

Michael W. Manners, Kevin Blackwell, Independence, for respondents.

LIMBAUGH, Judge.

Josephine Andes appeals from an order of summary judgment in favor of defendants Michael J. Albano and Rose Anne Nespica. The Court of Appeals, Western District, reversed. We granted transfer pursuant to article V, section 10, of the Missouri Constitution, to consider the validity of a provision in a decree of dissolution releasing opposing counsel from "any claims, known or unknown." We affirm the judgment of the trial court.

I.

In 1984, Andes initiated dissolution proceedings against her former husband, John Frick, in the Circuit Court of Jackson County. Both parties were represented by counsel at all times. Following lengthy and often bitter negotiations, the dissolution action was settled on September 24, 1985, the morning of trial, when both parties executed a handwritten written settlement agreement. Paragraph 17 of that document stated that each party would "release all claims known and unknown agst. the other & their respective counsel." At a hearing later that same day to confirm the agreement and grant the dissolution, the following question was asked of Andes:

You also agree to release any claim known or unknown against John, and John agrees to do the same against you and each of you likewise release any claims that you might have against the counsel of another party; is that correct?

Andes responded under oath:

That's correct.

Andes and Frick later executed a formal version of the settlement agreement to coincide with the testimony presented in court and approved by the trial judge. Frick signed on September 25, 1985; Andes on October 9, 1985. Article VI of the final version declares that each party "further releases the other from any claims, known or unknown, which involves the other party and/or their respective counsel being, Charlotte P. Thayer, Michael J. Albano, and Rose Anne Nespica." Andes was represented by Thayer; Frick was represented by Albano and Nespica.

It is uncontested that beginning in April, 1984, Andes' home was wiretapped. It is also undisputed that Andes discovered the existence of the tap on or about December 7, 1984, ten months prior to signing the settlement agreement. Nearly four years later, on November 22, 1988, Andes filed suit in United States District Court under the federal wiretap act, ¹ against Theodore Knox, a private investigator, and Leslie Albin, an associate of Knox. On June 2, 1989, while the state suit was pending, the federal claim was dismissed as time-barred by the three-year statute of limitations. 18 U.S.C. § 2520(e). The dismissal was affirmed by the Eighth Circuit Court of Appeals. Andes v. Knox, 905 F.2d 188 (8th Cir.1990). ²

On April 4, 1989, while the federal suit was pending, Andes filed this cause against respondents and others ³ in the Circuit Court of Jackson County, alleging that they jointly and severally participated in the wiretapping of her home. She sought damages for invasion of privacy, civil conspiracy, and intentional infliction of emotional distress, as well as punitive damages under all three counts.

Albano's and Nespica's separate motions to dismiss both raised the defense of release. Treating their motions to dismiss as motions for summary judgment, the trial court held that there were no genuine issues of material fact and that movant was entitled to judgment as a matter of law. Albano and Nespica were then dismissed from the suit. Thereafter, the court, at Andes' request, designated its order as final and appealable. This appeal followed.

II.

Under Rule 74.04(c), the trial court shall enter summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Once a movant has met this burden, the non-movant's only recourse is to show by counter-affidavits, depositions, answers to interrogatories, or admissions on file, that one or more of the material facts is genuinely disputed. A "genuine issue" is a dispute that is real, not merely argumentative, imaginary or frivolous. ITT Commercial Financial Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371 at 382 (Mo. banc April 20, 1993). As we stated in ITT this rule authorizes the resolution of claims as early as they are properly raised in order to avoid the expense and delay of meritless claims and to permit the efficient use of scarce judicial resources. ITT, at 381.

When considering appeals from summary judgment, we review the record in the light most favorable to the party against whom judgment was entered, according the non-movant the benefit of all reasonable inferences from the record. Martin v. City of Washington, 848 S.W.2d 487 at 489 (Mo. banc 1993).

Although movants sought summary judgment at the trial court level solely on the ground that Andes signed a general release, they now raise a second defense of res judicata based on the dismissal of Andes' federal lawsuit. Because we affirm the trial court's grant of summary judgment on the basis of the release provision, we do not address the defense of res judicata.

As noted, movants, Albano and Nespica, were required to make a prima facie showing under Rule 74.04(c) that there were no genuine issues of material fact and that they were entitled to judgment as a matter of law. ITT, at 381. To that end, movants introduced the Final Marital Settlement agreement, the draft agreement, and a transcript of the hearing testimony, all of which contained the release provision at issue.

There is a presumption of validity of an executed release. This presumption is founded in the policy of law to encourage freedom of contract and the peaceful settlement of disputes. Sanger v. Yellow Cab Co. Inc., 486 S.W.2d 477, 480-81 (Mo. banc 1972). See also, Landmark North County Bank v. National Cable Training Centers, Inc., 738 S.W.2d 886, 890 (Mo.App.1987); Grand Motors, Inc. v. Ford Motor Co., 564 F.Supp. 34, 38 (W.D.Mo.1982). Therefore, the release provisions in these documents introduced by movants constitute a prima facie showing that movants are entitled to judgment.

Andes opposed the motion at the trial court on numerous grounds: 1) the release language applied only to her former husband, or, alternatively, it was ambiguous as to whether it included the named attorneys; 2) there was no consideration between Andes and the attorneys; 3) the release was the product of duress; 4) the release was fraudulently obtained; and 5) the release violated public policy. On appeal, Andes also asserts that the court was without subject matter jurisdiction because movants are not third-party beneficiaries of the marital settlement agreement.

Andes, as non-movant, filed suggestions in opposition to the motion to dismiss and attached as exhibits: 1) an FBI investigative report of the private investigator, Theodore Knox; 2) a copy of the federal indictment against Knox; 3) a copy of a transcript in which Albano denies reading from a taped conversation; and 4) Andes' sworn affidavit.

1. Scope of Release

We are first asked to consider whether the scope of the release includes the named attorneys and whether the release of "any claims, known or unknown" includes allegations of wiretapping. Because it is undisputed that her former husband is released, the sole issue is whether the attorneys are similarly protected.

Interpretation of a release or settlement agreement is governed by the same principles applicable to any other contractual agreement, and the primary rule of construction is that the intention of the parties shall govern. State ex rel. Normandy Orthopedics, Inc. v. Crandall, 581 S.W.2d 829, 833 (Mo. banc 1979); Community Title Co. v. Safeco Ins. Co. of America, 795 S.W.2d 453, 457 (Mo.App.1990). Any question regarding the scope and extent of the release is to be resolved according to what may fairly be said to have been within the contemplation of the parties at the time the release was given. This, in turn, is to be resolved in light of all the surrounding facts and circumstances under which the parties acted. Normandy Orthopedics, 581 S.W.2d at 833; Community Title, 795 S.W.2d at 457. However, language that is plain and unambiguous on its face will be given full effect within the context of the agreement as a whole unless the release is based on fraud, accident, misrepresentation, mistake, or unfair dealings. See, e.g., Ragan v. Schreffler, 306 S.W.2d 494, 499 (Mo.1957); Montrose Sav. Bank v. Landers, 675 S.W.2d 668, 671 (Mo.App.1984); see also, Haines v. St. Charles Speedway, Inc., 689 F.Supp. 964, 968-69 (E.D.Mo.1988); aff'd, 874 F.2d 572 (8th Cir.1989).

The specific release in the Final Marital Settlement states:

Except as otherwise provided herein, each party releases the other from all claims and marital rights arising by reason of common law or the statutes pertaining to marriage.... Each party further releases the other from any claims, known or unknown, which involve the other party and/or their respective counsel being, Charlotte P. Thayer, Michael J. Albano and Rose Anne Nespica. Counsel for Respondent agrees that they will cooperate with Wife in any litigation involving Wife and her former counsel from the firm of Dietrich, Davis, et al.

The language of this clause is ambiguous. On the one hand, it states that "each party releases the other...." Although it is clear that "the other" means the other party, the release refers to the other party only. It does not state "the other party and counsel for the other party." On the other hand, the next clause refers to ...