Eisenberg v. Redd

Citation38 S.W.3d 409
Parties(Mo.banc 2001) . Elizabeth Eisenberg, Appellant, v. Charles Redd, Barnet M. McKee, and Brad Goss, Respondents. SC82624 Supreme Court of Missouri Handdown Date: 0
Decision Date13 February 2001
CourtUnited States State Supreme Court of Missouri

Appeal From: Circuit Court of St. Louis City, Hon. Robert H. Dierker, Jr.

Counsel for Appellant: Richard W. Fischer and John T. Ahlquist

Counsel for Respondent: Mark G. Arnold, Roger K. Heidenreich, Larry D. Hale and Andrew T. Pickens, IV

Opinion Summary: Elizabeth Eisenberg was represented by a law firm in a legal matter. She sued two attorneys alleging they negligently represented her. One was "of counsel" to the firm, and the other was a former partner. The court granted summary judgment for them on the grounds that Eisenberg signed a release of all claims against the law firm. She appealed.


Court en banc holds:

The release's term, "law firm," is unambiguous. The firm was a partnership, not a legal entity separate from the individual partners. Therefore, the only persons released are the firm's partners on the date of the release. Neither McKee nor Goss were partners at that time so were not released.

Even if there is a latent ambiguity in the term law firm" so that it could be read to include former partners, it must be resolved against McKee and Goss.

Opinion Author: Stephen N. Limbaugh, Jr., Judge

Opinion Vote: REVERSED AND REMANDED. Price, C.J., White, Wolff and Benton, JJ., concur. Holstein, J., not participating.


Appellant Elizabeth Eisenberg appeals the circuit court's entry of summary judgment in favor of respondents Barnet McKee and Brad Goss on her claim for professional negligence. Summary judgment was granted on the basis of a contractual release entered into between appellant and "the law firm of Husch & Eppenberger" releasing each from "any and all actions" by the other. After opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const. art. V, sec. 10. The judgment is reversed, and the case is remanded for proceedings consistent with this opinion.

In 1992, appellant retained the St. Louis law firm Husch & Eppenberger (law firm) to represent her in connection with the planning of her mother's estate. During the representation, respondent McKee was "of counsel" to the law firm and respondent Goss was a partner. Although the law firm is currently organized as a limited liability company, the parties do not dispute that at all relevant times it was organized as a partnership. According to the mother's estate plan, appellant would qualify as beneficiary of about one-third of the estate if she complied with certain requirements set out in the will and codicils, and respondents gave appellant legal advice regarding her compliance with those requirements. The specific facts pertaining to this advice and to appellant's expectancy under her mother's will and codicils are reported in Estate of Strick v. Eisenberg, 934 S.W.2d 312 (Mo. App. 1996). In Estate of Strick, the court of appeals held that appellant violated the terms of her mother's will and codicils and "relinquished her status as personal representative and beneficiary of her mother's estate." Id. at 315.

On or about February 22, 1994, more than two years before the decision in

Estate of Strick, the law firm terminated its representation of appellant by mutual consent. Thereafter, the law firm billed appellant $15,672.07 for legal services rendered, but she disputed that amount as excessive. Respondent Goss resigned from the law firm on April 15, 1994. Two months later, on June 15, 1994, appellant and the law firm entered into a contract whereby she agreed to pay $12,000 as "full and final payment" for the law firm's representation, and both agreed to release the other from any legal claims arising out of the representation. The text of the release states:

The Law Firm and Elizabeth Eisenberg hereby fully and forever release, acquit, and discharge the other and all of the other's successors and assigns from any and all actions, causes of action, claims and demands of whatsoever nature or kind arising out of any rights accruing to either of the parties hereto by virtue of the Law Firm's representation of Elizabeth Eisenberg at any time prior to the date of this Agreement.

Respondent McKee signed the contract on behalf of the law firm, but neither respondent is specifically named in the contract.

On February 20, 1998, appellant sued respondents alleging that they were negligent in representing her and that their negligence caused her disinheritance. Respondents filed a motion for summary judgment on the basis that the release entered into by the law firm and appellant absolved them individually from liability. After a hearing, the trial court entered summary judgment in favor of respondents.

This Court's review of the grant of summary judgment is de novo. ITT Commercial Finance Corp. v Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). Where the movant is a defendant in the lawsuit, and has pled an affirmative defense, a right to summary judgment is established by showing "there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly pleaded affirmative defense." Id. at 381 (emphasis removed). "[T]he movant bears the burden of establishing a right to judgment as a matter of law on the record as submitted." Id. at 382. The record is viewed in the light most favorable to the non-moving party, according that party all reasonable inferences that may be drawn from the record. Id. at 376.

Appellant argues that release of the "law firm" pertained only to persons who were partners of Husch & Eppenberger on the date...

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