Greening v. Klamen, 50454
| Decision Date | 30 September 1986 |
| Docket Number | No. 50454,50454 |
| Citation | 719 S.W.2d 904 |
| Parties | Kenneth J. GREENING, Mary Sue Greening, and Ford Lane Executive Center, Inc., Plaintiffs-Appellants, v. Marvin KLAMEN, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Mark Belz, Belz & Belz, Clayton, Mo., for plaintiffs-appellants.
Lawrence B. Grebel, Brown, James & Rabbitt, P.C., St. Louis, Mo., for defendant-respondent.
The Greenings and Ford Lane Executive Center, Inc. (FLEC), plaintiffs below, appeal from an order dismissing four counts of a six count petition and an order granting summary judgment as to the other two. We affirm in part, reverse in part and remand.
This matter is on appeal for the third time. A complete discussion of the facts underlying the original dispute can be found in our first opinion, Greening v. Klamen, 652 S.W.2d 730 (Mo.App.1983). The dismissal of a subsequent appeal for lack of a final judgment is at Greening v. Klamen, 683 S.W.2d 298 (Mo.App.1984). A recital of those facts pertinent to this appeal follows.
Greenings are the sole shareholders of FLEC. In October 1977, Greening and FLEC each retained defendant Marvin Klamen, an attorney, to represent their respective interests in then pending bankruptcy reorganization proceedings for FLEC. A fee agreement was made at that time. In November, 1977, defendant informed plaintiffs that continued legal representation was contingent upon a new fee arrangement. After plaintiffs refused to accept the new fee proposal, defendant sent a letter to plaintiffs accusing them of improper behavior, and also sent copies to several others involved directly or indirectly in the reorganization proceedings. Defendant then withdrew as plaintiffs' counsel in January, 1978.
Plaintiffs sued, filing an eight count petition 1 that was dismissed with prejudice. On appeal, we remanded the case with respect to two breach of contract counts and specifically held the others each failed to state a cause of action, affirming that part of the judgment.
On remand, in response to defendant's demand for a more definite statement, plaintiffs filed an amended petition which contained not only the breach of contract claims previously upheld, but also variants of legal malpractice and intentional tort counts previously pleaded by Greenings and new legal malpractice and intentional tort claims by FLEC. (Counts III-VI). All of these other counts were based on the facts underlying the original petition. Defendant's motion to dismiss counts III-VI was promptly granted on the basis that our decision in Greening, 652 S.W.2d 730 (Mo.App.1983) was res judicata. We agree.
Res judicata precludes the same parties from relitigating the same causes of action. Nelson v. Missouri Division of Family Services, 688 S.W.2d 28 (Mo.App.1985). In their first amended petition, Greenings attempted to allege causes of action for legal malpractice and intentional tort. Those counts were dismissed and the dismissal affirmed because the counts failed to state a cause of action. A dismissal for failure to state a cause of action is sufficient to raise res judicata in a later proceeding, Pic-Walsh Freight Co. v. Cooper, 618 S.W.2d 449, 454 (Mo.App.1981), and it is immaterial that the wording of the counts has been changed in an apparent attempt to correct the defects in the original pleadings. We hold the attempt by Greenings to replead legal malpractice and intentional tort on remand in counts III and V was properly dismissed as barred by res judicata.
The doctrine of res judicata applies not only to those points actually raised, but also to "every point which properly belongs to the litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." Moore v. Beck, 664 S.W.2d 15, 18 (Mo.App.1984) (quoting Autenrieth v. Bartley, 238 Mo.App. 55, 176 S.W.2d 546, 549 (1943)). In counts IV and VI FLEC asserts legal malpractice and intentional tort claims based on the same essential facts as the legal malpractice and intentional tort claims made by Greenings in the first amended petition. Clearly FLEC should have also pleaded these claims in the first amended petition: all of the facts giving rise to the causes of action were known at that time and no reason for not making the claims then has been given. Therefore, the attempt in counts IV and VI by FLEC to plead legal malpractice and intentional tort was properly dismissed as barred by res judicata. 2
Plaintiffs argue that notwithstanding the doctrine of res judicata, the "letter and spirit" of Rule 67.06 dictate a right to amend counts which have been dismissed even after we have affirmed the dismissal. We decline to so interpret the rule. The structure and words of Rule 67.06 clearly indicate it contemplates the request for leave to amend be made before judgment of dismissal with prejudice becomes final. Having failed to timely make such a request, plaintiffs are in no position to complain--there is no requirement that the trial judge sua sponte grant leave to amend a deficient pleading. Mullen v. Renner, 685 S.W.2d 212, 214 (Mo.App.1984). That part of the order dismissing Counts IV and VI is affirmed.
Summary judgment is properly granted only if the pleadings, depositions and any affidavits indicate no issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. Rule 74.04(c). The party granted summary judgment must show both entitlement to it affirmatively and that the other party would not be entitled to recover under any discernible circumstances. First National Bank, Paragould, Arkansas v. South Side National Bank, 644 S.W.2d 377, 379 (Mo.App.1982) (quoting Brummet v. Livingston, 384 S.W.2d 101, 103 (Mo.App.1964)). Our review of a summary judgment is equivalent to review of a court-tried case: if as a matter of law the judgment is sustainable on any theory it must be affirmed. McCready v. Southard, 671 S.W.2d 385, 387 (Mo.App.1984).
The trial court here granted summary judgment on the basis of the pleadings, defendant's answer and memoranda filed by both sides, defendant's incorporating the order and memorandum of the bankruptcy court judge on his request for compensation. In reviewing the evidentiary support for an order of summary judgment, we view it in the light most favorable to the parties against whom the judgment was rendered, according them the benefit of every doubt. Eugene Alper Construction Co.,...
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