Blankenship v. Grandy's, Inc.

• Citation: 839 S.W.2d 680
• Decision Date: 08 September 1992
• Docket Number: No. 17804,17804
• Parties: Paula BLANKENSHIP (formerly known as Paula Starchman), Plaintiff-Appellant, v. GRANDY'S, INC. and Maverick Restaurant Corporation and the Division of Workers' Compensation of the Department of Labor and Industrial Relations, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 680

839 S.W.2d 680

Paula BLANKENSHIP (formerly known as Paula Starchman), Plaintiff-Appellant, v. GRANDY'S, INC. and Maverick Restaurant Corporation and the

Division of Workers' Compensation of the

Department of Labor and Industrial

Relations, Defendants-Respondents.

No. 17804.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 8, 1992.

Motion to Rehearing or Transfer to

Supreme Court Denied Sept. 30, 1992.

Application to Transfer Denied

Nov. 24, 1992.

Charles Buchanan, Joplin, for plaintiff-appellant.

Ronald G. Sparlin, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for respondent Grandy's, Inc.

David B. Mouton, Flanigan, McCanse & Lasley, Carthage, for respondent Maverick Restaurant Corp. MAUS, Judge.

In this action, Paula Blankenship alleges that a "Transcript of Compromise Settlement", by mistake, incorrectly designates the "Employer". By this action, filed in the Circuit Court of Jasper County, she seeks to modify the Transcript of Compromise Settlement to correctly designate another corporation as the Employer. The trial court dismissed her petition with prejudice for the reason it failed to state a cause of action. Blankenship appeals.

Blankenship's point on appeal is that the trial court erred in dismissing the petition because it

"stated a cause of action for equitable relief to modify a workers' compensation award entered through mistake. Specifically, the petition alleged: (1) That plaintiff entered into a compromise settlement with Maverick Restaurant Corporation but that through a mistake the Transcript of Compromise Settlement erroneously stated that the settlement was with Grandy's, Inc. and (2) Intervention by a court of equity is necessary to prevent manifest injustice."

The merit of that point is to be measured by the following standard.

"It is well settled in Missouri that a petition is not to be dismissed for failure to state a claim upon which relief can be granted unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. In reviewing the sufficiency of a petition on a motion to dismiss, we give the averments a liberal construction and accord the petition those reasonable inferences fairly deducible from the facts stated. Irby v. St. Louis County Cab Co., 560 S.W.2d 392[1, 2] (Mo.App.1977)." Nappier v. Kincade, 666 S.W.2d 858, 860 (Mo.App.1984).

Also see Mercantile Trust Co., N.A. v. Harper, 622 S.W.2d 345 (Mo.App.1981); North Elec. Co. v. Satallite Communications, 588 S.W.2d 261 (Mo.App.1979); Schnabel v. Taft Broadcasting Company, Inc., 525 S.W.2d 819 (Mo.App.1975).

The following is a summary of the facts established by the petition under the foregoing standard. Grandy's, Inc., of Lewisville, Texas, was the franchisor for a number of fast-food restaurants known as "Grandy's". Maverick Restaurant Corporation, of Wichita, Kansas, as a franchisee, operated a fast-food restaurant under the trade name of "Grandy's" at 1306 S. Range Line, Joplin, Jasper County, Missouri. While employed by Maverick Restaurant Corporation in its business at 1306 S. Range Line, on May 12, 1986, Blankenship was severely injured when a fellow employee spilled hot grease upon her.

Blankenship filed a claim under the "Workers' Compensation Law", § 287.010, to recover for such injuries. She alleged that her employers were:

"Grandy's, 1306 S. Range Line, Joplin, Missouri 64801; Grandy's, Inc., 997 Grandy's Lane, Lewisville, Texas 75067-2599; Maverick Restaurant Corporation, 101 Main Place, 100 N. Main, Wichita, Kansas 67202."

The Answer to that claim was filed by "Grandy's" and admitted the employer was "Grandy's located at 1306 S. Range Line." It denied the balance of the allegations concerning the identity of the employer. The Division sent notices of proceedings in respect to the workers' compensation claim to Blankenship and her attorney and to "Grandy's" and to "Maverick Restaurant Corporation", who were listed as the "Employer". Grandy's, Inc., did not file an answer nor participate in the proceedings in respect to Blankenship's claim.

On August 2, 1988, Blankenship entered into an oral compromise settlement of her claim before the Administrative Law Judge. The "Transcript of Compromise Settlement" prepared by the Division listed "Employer" as "Grandy's, Inc., a subsidiary of Maverick Restaurant Corporation". Blankenship alleges that such designation of the employer was the result of a mistake or inadvertence.

Blankenship filed an action against Grandy's, Inc., of Lewisville, Texas, to recover for the personal injuries she sustained on May 12, 1986, while employed by Maverick Restaurant Corporation at 1306 S. Range Line. Grandy's, Inc. filed a motion for summary judgment based upon the Transcript of Compromise Settlement and the allegation that the action by Blankenship is barred because her exclusive remedy was under the Workers' Compensation Law. The allegations of Blankenship's petition in this action continued:

"12. That the purported 'Transcript of Compromise Settlement' is not a true and accurate transcript of the proceedings at the time of the settlement of plaintiff's workers' compensation claim and that neither plaintiff nor her attorney stipulated or agreed that her employer was 'Grandy's, Inc. ...'; that there was no discussion, suggestions, implication, or any other fact that suggested to plaintiff or her attorney that the settlement was with 'Grandy's, Inc.'; that the parties in fact agreed that the employer was 'Maverick Restaurant Corporation d/b/a Grandy's'; and that neither plaintiff no[r] plaintiff's attorney was aware that the Transcript of Compromise Settlement designated 'Grandy's, Inc. ...' as the employer until Grandy's, Inc. present[ed] plaintiff's attorney with a copy of said Transcript on or about April 29, 1991."

Blankenship prayed the court to set aside the compromise settlement with Grandy's, Inc., a subsidiary of Maverick Restaurant Corporation d/b/a Grandy's, and to enter an order declaring the compromise settlement was with Maverick Restaurant Corporation d/b/a Grandy's, and to modify the Transcript of Compromise Settlement to show the correct employer.

Curiously, not only Grandy's, Inc., but also Maverick Restaurant Corporation, filed a motion to dismiss Blankenship's petition for failure to state a cause of action. Both have filed a brief in support of the trial court's action. Basically, they support the trial court's action with the same argument. Grandy's, Inc. asserts "Appellant's justification for modifying the compromise settlement was that she settled her workers' compensation claim against this respondent Grandy's Inc. (as her employer) and then in a separate action, sought to recover civil damages against Grandy's, Inc. as a result of the same accident." They both cite and rely upon Ley v. St. Louis County, 710 S.W.2d 493 (Mo.App.1986) and Morgan v. Duncan, 361 Mo. 683, 236 S.W.2d 281 (1951). They focus upon the following proposition from Ley: "What is required is a finding of fraud or mistake in the very act of obtaining the award or order." Ley at 496. They point out that the petition contains no allegation of fraud in the very act of obtaining the award. They say the type of mistake alleged is not of the nature "contemplated by the applicable case law" as a basis for the relief sought.

Grandy's, Inc. and Maverick Restaurant Corporation have misconceived the basis for relief alleged by Blankenship. She does not allege a "mutual mistake" of the parties upon the basis of which they entered into the agreed settlement. See Link v. Dowdy, 816 S.W.2d 927 (Mo.App.1991). Nor does she allege that she was prevented from appearing in the proceedings by reason of a "mistake". See Contrare v. Cirese, 336 S.W.2d 485 (Mo.1960). She does not attempt to allege the perpetration of any "fraud" as a basis to set aside the compromise settlement such as that described in Ley, supra. Also see Daffin v. Daffin, 567 S.W.2d 672 (Mo.App.1978). In fact, she does not seek to invalidate or set aside the compromise settlement that had been agreed upon by the parties. She seeks to correct the record which, by reason of mistake, does not reflect the actual agreement.

It has been long recognized that even a final judgment entered by "mistake" is subject to correction. When the mistake is apparent from the record, this is the basis for the familiar remedy of a judgment "nunc pro tunc".

"The purpose of the nunc pro tunc amendment is to make the record conform to what was actually done where there is a basis in the record for the amendment. Luedde v. Luedde, 240 Mo.App. 69, 211 S.W.2d 513 (1948) . It is well established that the court may search the record for evidence of what happened and may consider the court files, motions filed in the cause and clerical entries, both those made before and after the act in question, in finding that basis. First National Bank of Collinsville v. Goldfarb, supra [527 S.W.2d 427 (Mo.App.1975) ] [5, 6]. An order nunc pro tunc cannot be based upon the judge's recollection of what took place or upon parol evidence. Aronberg v. Aronberg, 316 S.W.2d 675 (Mo.App.1958) ." In re Marriage of Royall, 569 S.W.2d 369, 371 (Mo.App.1978).

The scope of judgments nunc pro tunc has been described in the following terms.

"They lie to correct clerical omissions, mistakes or misprisions to make the record speak the truth by evidencing an act done or a judgment actually rendered at a prior time but not carried into or faithfully recorded in the record. [Warren v. Drake, 570 S.W.2d 803, 806 (Mo.App.1978) ] Id. . They do not lie to correct judicial errors, mistakes or oversights, or to create a new record or to enter a judgment never made or one different from that actually rendered, albeit the judgment rendered was not the judgment the judge intended to make. Id.". Mo. Highway & Transp. Com'n v. Roth, 735 S.W.2d 19, 21 (Mo.App.1987).

The nature of the mistake that is...