Mogley v. Fleming

CourtCourt of Appeal of Missouri (US)
Citation11 S.W.3d 740
Parties(Mo.App. E.D. 1999) Robert J. Mogley, Respondent, v. Lawrence J. Fleming, Appellant. Case Number: ED74828 Missouri Court of Appeals Eastern District Handdown Date:
Decision Date07 December 1999

11 S.W.3d 740 (Mo.App. E.D. 1999)
This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court
Robert J. Mogley, Respondent,
v.
Lawrence J. Fleming, Appellant.
Case Number: ED74828
Missouri Court of Appeals Eastern District
Handdown Date: 12/07/99

Appeal From: Circuit Court of the City of St. Louis, Hon. Booker T. Shaw

Counsel for Appellant: James M. Martin

Counsel for Respondent: Alan G. Kimbrell

Opinion Summary: Defendant Lawrence J. Fleming appeals from the judgment entered after a jury returned a verdict for plaintiff Robert J. Mogley on his claims for legal malpractice and fraud.

AFFIRMED IN PART AND REVERSED IN PART.

Division Four holds: (1) The trial court had jurisdiction to set aside a dismissal without prejudice. (2) Fleming waived any claim of improper venue. (3) Section 517.011.1, namely its amount in controversy provision, does not provide jurisdictional limitations for associate circuit judges. (4) Because Fleming failed to prove he would have been successful in the underlying action, the judgment entered for Fleming's legal malpractice claim is reversed. (5) The statue of limitations does not bar Fleming's fraud claim. The second count for fraud related back to the filing of the original petition

Opinion Author: William H. Crandall, Jr., Presiding Judge

Opinion Vote: AFFIRMED IN PART AND REVERSED IN PART. Karohl and Hoff, JJ., concur.

Opinion:

Defendant, Lawrence J. Fleming, appeals from the judgment entered after a jury returned a verdict for plaintiff, Robert J. Mogley, on his claims for legal malpractice and fraud. We affirm in part and reverse in part.

In 1956, plaintiff, an attorney, began working for Chicago Title Insurance Company (Chicago Title). Sometime in the 1970's, plaintiff took over Chicago Title's St. Louis "operation." In 1981, Chicago Title informed plaintiff, then age fifty-four, that due to the company's sale of the St. Louis office it was eliminating plaintiff's "position." A letter from Chicago Title dated July 27, 1981, informed plaintiff that the company had been unable to "locate a new position" for him within the company. The letter set forth the company's offer of early retirement that included continuation of his salary until January 31, 1982, at which time plaintiff would be fifty-five years old and eligible for certain pension benefits. These benefits included among other things a lump sum payment of $92,743.95 or lifetime monthly benefits of $579.35. Under the early retirement offer, plaintiff was eligible to participate in Chicago Title's medical plan at no cost. The letter also provided that if plaintiff accepted the offer "an appropriate agreement and release setting forth the terms of your separation and releasing Chicago Title from any further claims will be forwarded to you for signature." According to the letter, if plaintiff did not accept the early retirement offer, his employment would be terminated effective July 31, 1981, and he would be eligible at age fifty-five for pension benefits of a lump sum payment of $54,929.85 or $343.14 per month. In addition, if plaintiff refused the offer his medical insurance could only be converted to provide coverage "as set forth in the applicable policy." Plaintiff testified that if he refused the offer he would have "no medical insurance."

Plaintiff consulted with defendant, an attorney, regarding Chicago Title's offer and a potential age discrimination case.1 The two discussed plaintiff's medical condition and the federal requirement of filing a charge of employment discrimination within 180 days of the alleged unlawful practice. Defendant believed that given plaintiff's medical condition and corresponding need for medical insurance, the best course was to delay signing the release as long as possible. According to plaintiff "he held out" until August 19, 1981, when he accepted Chicago Title's early retirement offer and executed an agreement and release. The release provides that plaintiff "releases and discharges" Chicago Title from any claims arising out of Chicago Title's action in relieving plaintiff of his duties as of July 31, 1981 and terminating his employment on January 31, 1982, including but not limited to claims of age discrimination, any other claims for relief under any statute, or claims based on alleged wrongful discharge under the common law. Plaintiff worked for the new owner of Chicago's Title's St. Louis office until January 27, 1982. Approximately February 1, 1982, plaintiff received the money and benefits provided in Chicago Title's early retirement offer. On February 16, 1982, plaintiff filed, with defendant's assistance, an age discrimination complaint with the Equal Employment Opportunity Commission (E.E.O.C.). The E.E.O.C. issued a right to sue letter and defendant brought an age discrimination action on plaintiff's behalf in U.S. District Court. The district court dismissed plaintiff's complaint with prejudice. Mogley v. Chicago Title Insurance Co., 553 F.Supp. 1045, 1046-47 (E.D. Mo. 1983). The Eighth Circuit affirmed the district court's dismissal. Mogley v. Chicago Title Insurance Co., 719 F.2d 289, 291 (8th Cir. 1983).

In 1985, plaintiff discussed with a co-worker, who was an attorney, the circumstances regarding his leaving Chicago Title. The co-worker told plaintiff he had brought wrongful termination actions in Florida state courts. Plaintiff, defendant, and the co-worker met, and the co-worker "explained his theories on wrongful termination" to defendant. Defendant thought the co-worker's ideas had "some merit." Defendant prepared a petition for "WRONGFUL TERMINATION OF EMPLOYMENT," naming Chicago Title as defendant. Defendant told plaintiff he filed the petition in Edwardsville, Illinois at the Madison County Court. In the spring 1986, defendant gave plaintiff the wrongful termination petition with a cause and division number. Plaintiff paid defendant approximately $1,090. Defendant told plaintiff that his case against Chicago Title had a settlement value of $285,000. When plaintiff and his wife went to purportedly scheduled depositions of Chicago Title employees, defendant informed them Chicago Title had cancelled the depositions. Defendant failed to respond to several of plaintiff's letters and phone calls. On July 3, 1989, plaintiff went to the Madison County Court and found that no petition had been filed.

On August 2, 1991, plaintiff brought the present action against defendant. Plaintiff alleged in part: (1) in August 1981, Chicago Title "fraudulently induced and coerced plaintiff" to agree to termination of his employment and sign a release; (2) defendant prepared on plaintiff's behalf a complaint against Chicago Title for wrongful termination; (3) defendant failed to file the complaint or any other pleading on plaintiff's behalf; (4) the applicable statute of limitations in Illinois is five years; (5) defendant was thereby negligent; and (6) plaintiff was damaged by defendant's negligence. On August 26, 1993, the trial court dismissed plaintiff's action without prejudice for failure to prosecute. On February 9, 1994, the court set aside the dismissal. Plaintiff filed an amended petition on August 23, 1994, again alleging legal malpractice and adding a count for fraudulent misrepresentation.

The case proceeded to trial. Plaintiff and his wife testified. Defendant did not testify. An attorney testified for defendant regarding releases, economic coercion, and ratification. The jury returned a verdict for plaintiff on both claims and assessed actual damages of $58,000 on the legal malpractice claim and actual damages of $3,000 and punitive damages of $225,000 on the fraud claim. The trial court entered judgment and denied defendant's post-trial motion for judgment notwithstanding the verdict or in the alternative for new trial or for remittitur. This appeal followed.

Defendant argues in his first point that the trial court lacked jurisdiction to set aside the dismissal. On August 26, 1993, the trial court dismissed plaintiff's action without prejudice for failure to prosecute. The court set aside the dismissal on February 9, 1994.

Defendant contends that under Rule 75.01 the court lacked jurisdiction to set aside the dismissal order after thirty days. "An order of dismissal without prejudice falls within the purview of Rule 75.01, which provides that a court loses control over its judgment thirty days after the entry of the judgment." Quality Business Accessories, Inc. v. National Business Products, Inc., 880 S.W.2d 333, 335 (Mo. App. E.D. 1994).

Plaintiff contends that the trial court had jurisdiction to set aside the dismissal under Rule 74.03. This rule provides:

Immediately upon the entry of an order or judgment, the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 43.01 upon each party who is not in default for failure to appear and who was not present in court in person or by attorney at the time of the entry of such order or judgment. If such notice is not given, the order or judgment shall be set aside for good cause shown upon written motion filed within six months from the entry of the order or judgment. This Rule 74.03 shall not preclude relief under Rule 74.06.

Rule 74.03 requires service of a notice of the entry of the order or judgment by mail, in the manner described in Rule 43.01, upon each party who was not present in court in person or by an attorney at the time of the entry of the order or judgment. Vilsick v. Fibreboard Corp., 861 S.W.2d 659, 664 (Mo. App. E.D. 1993). A trial court has jurisdiction to set aside an order or judgment when no notice has been sent to a party. Id. Rule 74.03 "clearly and unambiguously sets forth a six-month time limitation for a party to request that a trial court set aside an order entered without notice." Id. In the present case, the court dismissed the action on August 26, 1993, and the order setting aside the...

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17 practice notes
  • Missouri Dept. of Transp. ex rel. v. Safeco, No. ED 79860.
    • United States
    • Court of Appeal of Missouri (US)
    • November 5, 2002
    ...trial court's denial of a motion for directed verdict or JNOV is whether or not the plaintiff made a submissible case. Mogley v. Fleming, 11 S.W.3d 740, 747 (Mo.App. 1999). In order to make a submissible case, substantial evidence is required for each and every fact essential to liability. ......
  • State ex rel. Trans World Airlines v. David, No. SC 86138.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 2005
    ...supporting affidavit. I would quash the preliminary writ. --------------- Notes: 1. Rules 51.045(a), 55.08 and 55.27; Mogley v. Fleming, 11 S.W.3d 740, 746 (Mo.App.1999); Reece v. Reece, 890 S.W.2d 706, 712 (Mo.App.1995); State ex rel. Uptergrove v. Russell, 871 S.W.2d 27, 29-30 (Mo.App.199......
  • Day Advertising Inc. v. Devries and Assoc., No. WD 66586.
    • United States
    • Court of Appeal of Missouri (US)
    • March 27, 2007
    ...suit] has the burden to establish the defendant's negligence proximately resulted in damages to the plaintiff." Mogley v. Fleming, 11 S.W.3d 740, 747 (Mo.App. E.D.1999). "[B]ecause the alleged damages are based on the resolution of the underlying action ..., the plaintiff must prove a `case......
  • Thiel v. Miller, No. WD 63471.
    • United States
    • United States State Supreme Court of Missouri
    • June 28, 2005
    ..."but for" the negligence of the attorney, the result of the underlying action or proceeding would have been different. Mogley v. Fleming, 11 S.W.3d 740, 747 (Mo.App.1999); Steward v. Goetz, 945 S.W.2d 520, 532 (Mo.App.1997); Baldridge v. Lacks, 883 S.W.2d 947, 954 (Mo.App.1994). "The measur......
  • Request a trial to view additional results
17 cases
  • Missouri Dept. of Transp. ex rel. v. Safeco, No. ED 79860.
    • United States
    • Court of Appeal of Missouri (US)
    • November 5, 2002
    ...trial court's denial of a motion for directed verdict or JNOV is whether or not the plaintiff made a submissible case. Mogley v. Fleming, 11 S.W.3d 740, 747 (Mo.App. 1999). In order to make a submissible case, substantial evidence is required for each and every fact essential to liability. ......
  • State ex rel. Trans World Airlines v. David, No. SC 86138.
    • United States
    • United States State Supreme Court of Missouri
    • March 15, 2005
    ...supporting affidavit. I would quash the preliminary writ. --------------- Notes: 1. Rules 51.045(a), 55.08 and 55.27; Mogley v. Fleming, 11 S.W.3d 740, 746 (Mo.App.1999); Reece v. Reece, 890 S.W.2d 706, 712 (Mo.App.1995); State ex rel. Uptergrove v. Russell, 871 S.W.2d 27, 29-30 (Mo.App.199......
  • Day Advertising Inc. v. Devries and Assoc., No. WD 66586.
    • United States
    • Court of Appeal of Missouri (US)
    • March 27, 2007
    ...suit] has the burden to establish the defendant's negligence proximately resulted in damages to the plaintiff." Mogley v. Fleming, 11 S.W.3d 740, 747 (Mo.App. E.D.1999). "[B]ecause the alleged damages are based on the resolution of the underlying action ..., the plaintiff must prove a `case......
  • Thiel v. Miller, No. WD 63471.
    • United States
    • United States State Supreme Court of Missouri
    • June 28, 2005
    ..."but for" the negligence of the attorney, the result of the underlying action or proceeding would have been different. Mogley v. Fleming, 11 S.W.3d 740, 747 (Mo.App.1999); Steward v. Goetz, 945 S.W.2d 520, 532 (Mo.App.1997); Baldridge v. Lacks, 883 S.W.2d 947, 954 (Mo.App.1994). "The measur......
  • Request a trial to view additional results

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