Int'l Div., Inc. v. Dewitt & Assocs., Inc.

• Decision Date: 27 May 2014
• Docket Number: No. SD 32496.,SD 32496.
• Citation: 425 S.W.3d 225
• Court: Missouri Court of Appeals
• Parties: INTERNATIONAL DIVISION, INC., Plaintiff–Appellant, v. DeWITT AND ASSOCIATES, INC., Defendant–Respondent.

425 S.W.3d 225

INTERNATIONAL DIVISION, INC., Plaintiff–Appellant,

v.DeWITT AND ASSOCIATES, INC., Defendant–Respondent.

No. SD 32496.

Missouri Court of Appeals,

Southern District,

Division Two.

March 25, 2014.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 17, 2014.

Application for Transfer Denied May 27, 2014.

Bruce McCurry and Jeff McCurry, Chaney & McCurry, Springfield, MO, for Appellant.

Paul F. Sherman and Kristoffer R. Barefield, Mann, Walter, Bishop & Sherman, P.C., Springfield, MO, for Respondent.

GARY W. LYNCH, J.

International Division, Inc. (“INDIV”), appeals the trial court's reduction of a jury verdict for INDIV and against DeWitt and Associates, Inc. (“DeWitt”), by the total amount of INDIV's pre-trial settlements with other defendants. Seesection 537.060.¹ In three points, INDIV contendsthat the trial court's admission of exhibits that evidenced the settlements in question was erroneous. We agree and, therefore, reverse and remand.

Factual and Procedural Background

INDIV filed a lawsuit for damage to its office space at 401 West McDaniel Street, Springfield, Missouri, which it alleged was caused during and as a result of the construction of the nearby College Station Car Park (“the project”). By way of its sixth amended petition, INDIV named as defendants the owner of the project site, the City of Springfield (“the City”); the general contractor for the project, DeWitt; and subcontractors for the project, A–1 Electric Service, Inc. (“A–1”), and James May, d/b/a May Backhoe Service (“May”).²

Before trial, INDIV dismissed its suit against the City, A–1, and May. These dismissals were pursuant to releases executed by INDIV in consideration for payments of $10,500, $10,500, and $7,500 from the City, A–1, and May, respectively. Information regarding these settlements, including amounts paid, was communicated by INDIV to counsel for DeWitt. INDIV also moved to re-style the case to show DeWitt as the only remaining defendant.

With leave of court, DeWitt thereafter amended by interlineation its answer to INDIV's sixth amended petition, alleging in pertinent part:

Defendant DeWitt is entitled to application of all provisions of § 537.060, RSMo., so that to the extent [INDIV] has settled or will settle with various other alleged tortfeasors, Defendant DeWitt is entitled to a reduction and setoff in the amount of each and every such settlement so that [INDIV]'s claims shall be reduced by the amounts received by settlement agreement with other such alleged tortfeasors or in the amount of or for the consideration paid by or on behalf of such tortfeasors, whichever is greater, or between any non-party tortfeasors, so that amounts paid by or on behalf of the City of Springfield, A-l Electric Service, Inc., James May d/b/a May Backhoe Service, College Station, LLC, or any non-party tortfeasors, reduce [INDIV]'s claim.

Following this amendment, DeWitt filed no subsequent motion to amend its answer, and INDIV filed no motion seeking a more definite statement.

The case thereafter went to trial, and the jury returned a verdict for INDIV in the amount of $28,000. The trial court accepted the verdict and discharged the jury.

DeWitt later filed a post-verdict motion seeking reduction of the jury verdict under section 537.060 by the amounts the City, A–1, and May paid to INDIV in consideration for their release—the sum of which was $28,500. In support of its motion, DeWitt attached exhibits consisting of copies of INDIV's written releases for the City, A–1, and May, as well as copies of the checks made out to INDIV pursuant to those releases (“Exhibits A through F”).

INDIV filed written objections to DeWitt's motion, arguing that Exhibits A through F were: (1) beyond the scope of the pleadings, in that DeWitt failed to plead in its answer the dollar amounts paid in exchange for the releases; and (2) untimely, in that they were not offered until after trial had concluded.

At an evidentiary hearing on the motion, INDIV objected to the admission of Exhibits A through F, asserting the same grounds as contained in its preceding writtenobjections. Noting these objections, the trial court admitted Exhibits A through F and took the matter under advisement.

Thereafter, the trial court entered its judgment with supporting memorandum. The judgment stated that the trial court admitted evidence of certain settlements entered into between INDIV and joint tortfeasors and “pursuant to the law” would reduce the $28,000 damage award for INDIV by the $28,500 settlement total. Judgment was entered in favor of INDIV and against DeWitt for the amount of zero dollars.

In its memorandum, the trial court stated that DeWitt pleaded the affirmative defense of reduction with “sufficient definiteness so as to allow [INDIV] to prepare responsive pleadings and to properly prepare for trial.” Alternatively, the trial court found that INDIV waived any objection to the definiteness of DeWitt's amended answer by failing to have moved for a more definite statement. The trial court also found that Exhibits A through F were timely offered and admitted.

INDIV now appeals, contending in three points that the trial court erroneously admitted into evidence Exhibits A through F.³ INDIV's first two points—that Exhibits A through F were beyond the scope of the pleadings and that INDIV did not waive such objection by failing to move DeWitt for a more definite statement—are dispositive. Therefore, we need not address INDIV's third point wherein it claims that Exhibits A through F were untimely.

Standard of Review

We generally review a trial court's evidentiary rulings for an abuse of discretion. E.g., Davis Estates, L.L.C. v. Junge, 394 S.W.3d 436, 440 (Mo.App.2013). This case, however, implicates a longstanding rule that trial is limited to the scope of the issues raised by the pleadings. SeeManiaci v. Luechtefeld, 351 S.W.2d 798, 800 (Mo.App.1961). It is an elementary rule of law that in the face of an objection, evidence must conform to the pleadings. Textron Fin. Corp. v. Trailiner Corp., 965 S.W.2d 426, 431 (Mo.App.1998); McCardie & Akers Constr. Co., Inc. v. Bonney, 647 S.W.2d 193, 195 (Mo.App.1983). Therefore, where objected-to evidence is outside the scope of the pleadings, the trial court has no discretion to admit such evidence. See Textron, 965 S.W.2d at 431–32.

Further, to determine whether the issue of reduction is within the scope of the pleadings, a trial court must construe and interpret the requirements of section 537.060. We review the trial court's interpretation of a statute de novo. Kivland v. Columbia Orthopaedic Group, LLP, 331 S.W.3d 299, 311 (Mo. banc 2011); see also Gibson v. City of St. Louis, 349 S.W.3d 460, 465 (Mo.App.2011) (applying de novo review to reduction issue where no factual issues were submitted to the jury and the trial court ruled as a matter of law).

Discussion

INDIV's first two points will be considered together. Both points contend that the trial court erred in overruling INDIV's objections that Exhibits A through F were beyond the scope of the pleadings, because DeWitt failed to meet its burden to plead the affirmative defense of reduction under section 537.060.⁴ Specifically, INDIV argues that DeWitt's pleading omitted a required element of reduction, in that DeWitt did not plead “the amounts paid” to INDIV by the City, A–1, and May in exchange for their release. INDIV further argues that waiver by failure to move for a more definite statement does not apply here, because “INDIV was not objecting that DeWitt had failed to plead the elements of reduction with particularity; rather, its objection was that DeWitt failed to state the elements of the affirmative defense thus rendering it insufficient.”

The linchpin of INDIV's points is whether the dollar amount sought in reduction is an element of the defense that must be pleaded with ultimate facts. “Missouri is a fact-pleading state.” Whipple v. Allen, 324 S.W.3d 447, 449 (Mo.App.2010). We have consistently observed that a properly pleaded cause of action requires allegations of fact to support each essential element of the cause pleaded. E.g., Crossland Constr. Co., Inc. v. Alpine Elec. Constr. Inc., 232 S.W.3d 590, 592 (Mo.App.2007); Brock v. Blackwood, 143 S.W.3d 47, 57 (Mo.App.2004). The pleader need not allege evidentiary facts but must allege ultimate facts and cannot rely on mere conclusions. Suelthaus & Kaplan, P.C v. Byron Oil Indus., Inc., 847 S.W.2d 873, 876 (Mo.App.1992). The requirement for pleading an affirmative defense is no different: “it is necessary to set out the factual basis for the affirmative defense ‘in the same manner as is required for the pleading of claims under the Missouri Rules of Civil Procedure.’ ” Damon Pursell Constr. Co. v. Missouri Highway and Transp. Comm'n, 192 S.W.3d 461, 475 (Mo.App.2006) (quoting Curnutt v. Scott Melvin Transp. Inc., 903 S.W.2d 184, 192 (Mo.App.1995)); see alsoRule 55.08 (“A pleading that sets forth an affirmative defense or avoidance shall contain a short and plain statement of the facts showing that the pleader is entitled to the defense or avoidance.” (emphasis added)).

Regarding the elements of reduction, we are guided by our supreme court's opinion in Sanders v. Ahmed, 364 S.W.3d 195 (Mo. banc 2012). The Sanders opinion is the most recent in a series of supreme court opinions that have recognized that reduction under section 537.060 is an affirmative defense that must be pleaded and proved. See Sanders, 364 S.W.3d at 211;Bach v. Winfield–Foley Fire Prot. Dist., 257 S.W.3d 605, 610 (Mo. banc 2008); Norman v. Wright, 100 S.W.3d 783, 785 (Mo. banc 2003) (overruling Julien v. St. Louis Univ., 10 S.W.3d 150, 152 (Mo.App.1999), to the extent inconsistent). Unlike the cases preceding it however, Sanders explicitly sets forth the following specific elements of the reduction affirmative defense that the defendant must plead and prove: (1) “the existence of a settlement”; and (2) ...