Clooney v. Pre-Paid Legal Services, Inc.

• Court: Missouri Court of Appeals
• Writing for the Court: KAROHL; SMITH, P.J., and AHRENS
• Citation: Clooney v. Pre-Paid Legal Services, Inc., 830 S.W.2d 566 (Mo. App. 1992)
• Decision Date: 02 June 1992
• Docket Number: No. 60949,PRE-PAID,60949
• Parties: Donald H. CLOONEY, Plaintiff-Respondent, v.LEGAL SERVICES, INC., Defendant-Appellant.

Page 566

830 S.W.2d 566

Donald H. CLOONEY, Plaintiff-Respondent, v. PRE-PAID LEGAL SERVICES, INC., Defendant-Appellant.

No. 60949.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 2, 1992.

Peper, Martin, Jensen, Maichel and Hetlage, Michael A. Clithero, St. Louis, for defendant-appellant.

Clooney & Anderson, Timothy R. Anderson, St. Louis, for plaintiff-respondent.

KAROHL, Judge.

Defendant, Pre-Paid Legal Services, Inc., attempts to appeal from a trial court order sustaining summary judgment in favor of plaintiff, Donald H. Clooney, on a petition originally filed in small claims court. In the order the court overruled Pre-Paid's motion for summary judgment on its counterclaim for a declaratory judgment. We find this court is without jurisdiction and therefore, we dismiss the appeal.

Plaintiff filed his petition in small claims court in an effort to recover attorney's fees for services he claims he rendered on behalf of defendant's members. Defendant denied any obligation and counterclaimed in small claims court seeking only declaratory relief. Defendant requested the court to declare: (1) the attorney provider agreement dated May 10, 1989, involving plaintiff and defendant was effectively terminated as of July 25, 1990, and is of no further force and effect; (2) a compromise and settlement agreement the parties made to resolve a prior federal court lawsuit, dated March 28, 1990, provides no authorization for plaintiff to provide services to Pre-Paid members as a participating attorney in the plan apart from the attorney provider agreement; and (3) plaintiff is not entitled to payment for any services rendered to Pre-Paid members on or after July 25, 1990. Plaintiff contends he was never a party to an attorney provider agreement. He argues he is entitled to render legal services to clients who are members of defendant's plan and to be compensated by the plan under the settlement agreement or as a third-party beneficiary of the members' contracts with Pre-Paid.

Defendant filed a motion for summary judgment in its favor on both the petition and counterclaim. Plaintiff then filed his own motion for summary judgment, but on the petition only. ¹

The court entered the following judgment:

Order

Upon review of pleadings, exhibits, affadavits [sic], and other evidence, the Court sustains plaintiff's motion for summary Judgment herein. The Court over-rules defendant's Motion for Summary Judgment.

(Plaintiff pleads relief under the provisions of settlement agreement reached in Federal Court, Exhibit 5. Defendant's letter of June 14, 1990, references termination of provider agreements, and makes no reference to settlement agreement).

The order entered was not final and appealable. A final, appealable judgment must dispose of all issues and all parties in a case leaving nothing for further determination. Concepts Communication Management Corporation v. Newhard Cook & Co. Inc., 829 S.W.2d 554 (Mo.App.1992). Generally, an order overruling a motion for summary judgment is not a final, appealable judgment. Cape Retirement Community, Inc. v. Kuehle, 798 S.W.2d 201, 202 (Mo.App.1990). This is true even when entered at the same time as an order granting summary judgment to the other party. Lake Center Boatworks, Inc. v. Martin, 804 S.W.2d 842, 844 (Mo.App.1991). When, however, the motion sustained also determines every issue raised in the counterclaim, the judgment is final for purposes of review. See Highland Inns Corporation v. American Landmark Corporation, 650 S.W.2d 667, 669 (Mo.App.1983).

In this case the summary judgment for plaintiff on the petition did not dispose of all issues raised in the counterclaim. First, the court did not rule that plaintiff entered into an attorney provider agreement or that such agreement was terminated July 25, 1990. It was unnecessary for the court to do so. Plaintiff presented two theories of recovery in his motion for summary judgment and accompanying affidavit. Pre-Paid did not offer opposing summary facts in the form of proofs. The primary argument based relief on the compromise and settlement agreement, not an attorney-provider agreement. In fact, plaintiff's affidavit states he never...