Frost v. Liberty Mut. Ins. Co., No. 73315

Decision Date23 July 1991
Docket NumberNo. 73315
Citation813 S.W.2d 302
PartiesJohn and Beverly FROST, Appellants, v. LIBERTY MUTUAL INSURANCE COMPANY, Respondent.
CourtMissouri Supreme Court

Leonard Breon, Warrensburg, for appellants.

Paul L. Wickens, James T. Thompson, Kansas City, for respondent.

COVINGTON, Judge.

John and Beverly Frost appeal from an order vacating a judgment in their favor in a personal injury action against an uninsured motorist. The Missouri Court of Appeals, Western District, dismissed the appeal. This Court granted transfer. The judgment is affirmed.

John Frost was injured in a traffic accident with a vehicle driven by Hubert White, who had no liability insurance on his vehicle. At the time of the collision, Frost was a passenger in a rental car for which Liberty Mutual Insurance Company provided uninsured motorist coverage.

The Frosts filed suit against White on November 8, 1988. They obtained personal service on White on November 12, 1988. White filed no answer to the petition, and on December 19, 1988, the case was called for trial. White, called as a witness by the Frosts, testified that he had been drinking before the accident. He confessed liability. The Frosts presented evidence on the issue of damages. The court entered judgment against White and in favor of John Frost for $600,000.00 and in favor of Beverly Frost, for loss of services, in the amount of $150,000.00. The judgment was formalized by a judgment entry recorded by the court on December 22, 1988.

Although Liberty Mutual knew that suit had been filed against White, it was not informed of the date of the trial. Liberty Mutual learned of the entry of judgment in January, 1989, through a letter dated December 30, 1988, from the Frosts' attorney. On January 17, 1989, after judgment but within the time prescribed by Rule 75.01, Liberty Mutual filed a motion to intervene in the case. Accompanying the motion to intervene was a motion to vacate the judgment, which Liberty Mutual sought to file as a party. On January 19, 1989, the trial court denied Liberty Mutual's motion "to intervene and/or vacate judgment." Liberty Mutual appealed. In disposition of the appeal, Frost v. White, 778 S.W.2d 670 (Mo.App.1989), (Frost I ), the Missouri Court of Appeals, Western District, reversed the judgment of the trial court and remanded, finding that substantial justice so required. Id. at 673.

After remand, on December 8, 1989, the trial court, purporting to comply with the court of appeals' mandate, entered an order allowing Liberty Mutual to intervene. On December 14, 1989, Liberty Mutual filed a motion for change of judge. On March 23, 1990, the trial judge disqualified himself, and three days later the case was transferred to another division. On April 16, 1990, Liberty Mutual filed a second motion to vacate. On May 17, 1990, the trial court sustained the motion to vacate. The Frosts lodged the present appeal from that order.

Citing Rules 75.01 and 74.06(b), the Frosts contend that the trial court was without jurisdiction in May of 1990 to act upon the April, 1990, motion to vacate because the motion was untimely filed. In response, Liberty Mutual argues that the Frost's appeal must be dismissed because the May 17, 1990, order vacating the judgment was not a final, appealable order.

The case presents itself in disarray. The parties present substantial arguments to bring themselves, according to their respective interests, within the laws and rules that govern judgments and timely appeals. None seems quite to hit the mark. The confusion rests in part upon the procedural facts, unlikely to be repeated, and in part upon the closing language of Frost I. Frost I, however, read as a whole and in conjunction with the procedural facts, both explains the dilemma and provides basis for disposition of the present case.

Preliminarily, it is important to note that an application for leave to intervene subsequent to trial is unusual and seldom granted. In re Chain Yacht Club, Inc. v. St. Louis Boating Ass'n, 225 S.W.2d 476, 479 (Mo.App.1949). Intervention as contemplated by Rule 52.12 is intervention in a pending case. Id. Postjudgment intervention is granted only if substantial justice requires intervention. State ex rel. Ashcroft v. Am. Triad Land Co., Inc., 712 S.W.2d 62, 64 (Mo.App.1986).

In Frost I the court of appeals found that substantial justice required that Liberty Mutual be permitted to intervene subsequent to trial. There was never any dispute that Liberty Mutual had a right to intervene under Rule 52.12(a); the question on appeal in Frost I was whether the application, filed after entry of judgment, was timely. Frost, 778 S.W.2d at 672. The court of appeals identified two factors for determination of the issue of timeliness of an application to intervene subsequent to trial. The first is whether substantial justice requires intervention, and the second is whether existing parties to the case will be prejudiced if intervention is permitted. Id. at 673. The Frosts made no contention of prejudice. On the question of whether substantial justice required allowance of intervention, the finding of the court of appeals is clear:

The trial record indicates that the nominal defendant confessed his fault in the accident, offered no defense on the issues of liability or damages and allowed plaintiffs' proof of damages to be introduced without challenge. The damages the court awarded far exceeded the actual damages proved and, in the case of Beverly Frost, were supported by virtually no proof. The trial was not an adversary proceeding calculated to result in a dispassionate appraisal of the issues. These facts militate significantly in favor of allowing intervention to accomplish substantial justice.

Frost, 778 S.W.2d at 673.

The language of the opinion required intervention to allow Liberty Mutual to enter the litigation and present a defense at trial. The...

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39 cases
  • State v. Nunley
    • United States
    • Missouri Supreme Court
    • May 28, 1996
    ...trial court should be in accordance with the mandate and result contemplated by the language of the written opinion. Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302, 304-05 (Mo. banc 1991). The summary order provided "Judgment vacated. Cause remanded for new penalty hearing, imposition of se......
  • State v. Abram
    • United States
    • New Hampshire Supreme Court
    • January 15, 2008
    ...opinion." Id. ; see Scarborough v. R.T.P. Enterprises, Inc., 120 N.H. 707, 709, 422 A.2d 1304 (1980) ; Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302, 304-05 (Mo.1991) (en banc ). For that reason, the issue presented is more properly framed as whether our opinion in Abram, read in toto, div......
  • Empire Dist. Elec. Co. v. Coverdell
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    • December 5, 2019
    ...Court has upheld the grant of motions to intervene following both entry of judgment and remand to the trial court. See Frost v. Liberty Mut. Ins. Co. , 813 S.W.2d 302, 303 (Mo. banc 1991) ; see also Breitenfeld v. Sch. Dist. of Clayton , 399 S.W.3d 816, 836-37 (Mo. banc 2013) (the interveno......
  • Smith v. Brown & Williamson Tobacco Corp.
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    • Missouri Supreme Court
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    ...mandate. On remand, all proceedings of the circuit court must be in accordance with the appellate court's mandate. Frost v. Liberty Mut. Ins. Co., 813 S.W.2d 302, 304 (Mo. banc 1991); see also Assoc. Indus. of Mo. v. Dir. of Revenue, 918 S.W.2d 780, 782 (Mo. banc 1996). “There are two types......
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