Horne v. Ebert

• Decision Date: 24 June 2003
• Docket Number: No. WD 61087.,WD 61087.
• Citation: Horne v. Ebert, 108 S.W.3d 142 (Mo. App. 2003)
• Parties: Robert A. HORNE and Ann L. Horne, Plaintiffs, v. James EBERT and David Gwinn, d/b/a Accu Plumbing, Respondents, PARKER CONSTRUCTION, INC., Appellant.
• Court: Missouri Court of Appeals

108 S.W.3d 142

Robert A. HORNE and Ann L. Horne, Plaintiffs, v.James EBERT and David Gwinn, d/b/a Accu Plumbing, RespondentsPARKER CONSTRUCTION, INC., Appellant.

No. WD 61087.

Missouri Court of Appeals, Western District.

June 24, 2003.

Michael Andrew Childs, Kansas City, for appellant.

Derrick Anthony Peace, Overland Park, KS, for respondent.

RONALD R. HOLLIGER, Judge.

AppellantParker Construction, Inc., appeals the grant of summary judgment in favor of respondentsJames Ebert and David Gwinn, d/b/a Accu Plumbing, and the denial of their cross-motion for summary judgment.Parker contends that the trial court erred in concluding that an indemnification agreement between Parker and Accu did not require Accu to indemnify Parker against claims arising from Parker's own negligence.Parker also claims that the trial court erred in granting summary judgment against Parker on its second claim that Accu breached its contract with Parker by failing to obtain liability insurance that named Parker as an additional insured.

We reverse the summary judgment with regard to the indemnification issue because the claim had been dismissed earlier by the court, which, therefore, deprived the court of jurisdiction to enter judgment upon that claim.In regard to the breach of contract issue, we conclude that a genuine dispute of material fact precluded the trial court's grant of summary judgment, and the judgment below is reversed and the matter remanded for further proceedings.

FACTS AND PROCEDURAL BACKGROUND

The present controversy originated in an accident at a residential construction site.AppellantParker Construction, Inc., was the general contractor on the project, and Accu Plumbing (hereinafter "Accu"), a business owned by respondentsJames Ebert and David Gwinn, was one of Parker's subcontractors.PlaintiffRobert A. Horne, an employee of a plumbing supply company, was assisting employees of Accu move a tub/shower unit into the construction site, when he fell through a hole in the floor of the building (the hole had been cut out for installation of a fireplace).The plaintiff brought suit against both Parker and Accu, seeking to recover for injuries sustained in the accident.

Parker subsequently brought a one-count cross-claim against Accu.In its cross-claim, Parker contended that Accu agreed to indemnify Parker for all claims arising out of the work at the construction site, including claims arising out of Parker's own negligence.At a later point, discussed in more detail infra, Parker filed an amended cross-claim asserting a second cross-claim based on breach of contract by Accu.The alleged breach was Accu's failure to have Parker named as an additional insured on Accu's liability policy.Parker settled out of the personal injury case in October 2002.Sometime later, Parker's cross-claims against Accu were severed from that case, and Accu tried the plaintiffs remaining claims to a jury.Accu prevailed at trial against the plaintiff and was found to bear no fault for the plaintiffs injuries.At this point, Parker's claims against Accu remained pending.

Because of our disposition of the summary judgment on the indemnity crossclaim it is necessary to set forth, in detail, the somewhat convoluted procedural history.

7/28/99     Parker files Cross-Claim (contractual
                            indemnity alone)
                3/8/00      Accu files Motion for Summary
                            Judgment
                5/25/00     Accu's Motion for Summary
                            Judgment is denied
                7/10/00     Accu files Motion to Reconsider
                            regarding the denial of its
                            motion for summary judgment
                8/29/00     Parker files Motion to File
                            Amended Cross-Claim.1 The
                            amended cross-claim reasserts
                            the contractual indemnity claim
                            and adds a second count for
                            breach of contract arising out
                            of Accu's failure to make Parker
                            an additional insured under
                            its liability policy
                9/11/00     "Partial" Summary Judgment
                            entered on Accu's original motion
                            for summary judgment.
                9/25/00     Leave granted for Parker to
                            file its Amended Cross-Claim
                            (adding a second count for
                            breach of contract).
                10/10/00    Dismissal of claims by Plaintiff
                            Horne against Parker.
                10/11/00    Accu files its Answer to Parker's
                            Amended Cross-Claim
                10/16/00    Accu files a Motion to Dismiss
                            Count I of Amended Cross-Claim,
                            on grounds that the
                            claim in Count I had already
                            been adjudicated.
                10/18/00    Accu files First Amended Answer
                            to Parker's Amended
                            Cross-Claim.
                10/25/00    Accu files its Second Motion
                            for Summary Judgment, arguing
                            that Count I of Parker's
                

            cross-claim is barred by res
                            judicata and that Count II is
                            barred by the affirmative defense
                            of waiver.
                1/02/01     Count I of Parker's Amended
                            Cross-Claim is dismissed by
                            the court upon Accu's 10/16/00
                            Motion to Dismiss. The trial
                            court denies both Accu's and
                            Parker's motions for summary
                            judgment and severs Parker's
                            cross-claim from Horne's (still
                            pending) claims against Accu.
                12/12/01    Parker seeks reconsideration
                            of the denial of its Motions for
                            Summary Judgment
                02/12/02    Court enters Summary Judgment
                            in favor of Accu
                

The February 2002 grant of summary judgment sustains motions to reconsider filed by Parker.It then denies the cross-motion for summary judgment that was filed by Parker at a time when the cross-claim contained only one count (the indemnification claim).That judgment also grants Accu summary judgment on its second motion for summary judgment as to Count II of the amended cross-claim and then regrants the original summary judgment sought by Accu against Parker regarding Parker's first cross-claim prior to Parker's amendment adding the second count to the cross-claim.No mention is made of the dismissal of Count I of the Amended cross-claim entered on November 2, 2001.²

The present appeal is brought from that judgment.It is important to note that no appeal is taken from either the January 2, 2001, order of dismissal of Count I of the amended cross-claim or from its underlying grant of summary judgment regarding Parker's indemnification claim on September 11, 2000.Nor was the January 2, 2001, dismissal ever set aside.

I.THE TRIAL COURT LACKED JURISDICTION TO GRANT SUMMARY JUDGMENT ON THE INDEMNIFICATION CROSS-CLAIM

A few basic principles must be restated to explain the context of our dilemma regarding the trial court's last judgment.The original grant of summary judgment by Judge Nixon in September 2000 was interlocutory, not because there was a second cross-claim count (the court had not yet granted leave to file the amended cross-claim at that point) but because plaintiff Home's original claim for personal injury was still pending.³An interlocutory summary judgment remains open for reconsideration by the court until such time as a final appealable final judgment is entered.Rule 74.01(b).The second principle is that once an amended cross-claim was filed it superseded the original cross-claim.SeeState ex rel. Crowden v. Dandurand,970 S.W.2d 340, 342(Mo. banc 1998).In effect, therefore, the trial court, in 2002, granted partial summary judgment on a superseded and abandoned pleading.Instead of seeking summary judgment with regard to Count I of the amended cross-claim, Accu instead sought to have that count dismissed.The requested relief was granted by the trial court.Parker neither sought nor obtained an order setting aside that dismissal.Regardless of the propriety of the dismissal of Count I of its amended cross-claim,⁴ Parker raises no error concerning that dismissal in the present appeal.

Thus, we are left with the conclusion that when Judge Daugherty granted reconsideration and...