Moody v. Ball, 53528
| Decision Date | 17 May 1988 |
| Docket Number | No. 53528,53555,53528 |
| Parties | Charles MOODY and Jean Moody, Plaintiffs-Appellants and Cross-Respondents, v. Sheila Dionne BALL, a minor and her guardian ad litem, Deborah A. Ball, Defendants-Respondents and Cross-Appellants. |
| Court | Missouri Court of Appeals |
Wuestling & James, Wm. James, Robert DeVoto, St. Louis, for plaintiffs-appellants and cross-respondents.
Brown, James & Rabbitt, Lawrence Grebel, Mark Lawson, St. Louis, for defendants-respondents and cross-appellants.
This consolidated appeal arises out of two orders entered by the Circuit Court of the City of St. Louis. The first order sustained motion of third party defendant, Sheila Ball 1 [Ms. Ball], to dismiss the cause pleaded against her for "contribution" by third party plaintiffs, Charles and Jean Moody (the Moodys). The second order, entered the same date, dismissed the counterclaim of Ms. Ball against the Moodys for personal injuries.
On February 21, 1984, a fire broke out in the basement of a home owned by the Moodys and leased to Doris Gay. At the time of the fire, four children of Doris Gay were under the supervision of Sheila Ball, their baby-sitter. All four children died as a result of the fire and Ms. Ball sustained serious personal injuries.
A chronology of the litigation spawned as a result of the fire follows:
September 11, 1984: Plaintiff Doris Gay filed suit against the Moodys for wrongful death of her four children. This suit was filed in the circuit court of the City of St. Louis.
June 14, 1985: While the above suit was still pending a petition was filed in the circuit court of St. Louis County by Sheila Ball, by her mother and next friend, Deborah Ball, against the Moodys. The petition prayed for damages as result of the personal injuries sustained by Ms. Ball.
July 17, 1985: The Ball v. Moody suit became a "friendly suit" which was called, heard, and reduced to judgment pursuant to Section 507.184 RSMo 1978. By terms of the structured settlement, Ms. Ball received an initial $13,500 lump sum payment with additional payments to be made to Ms. Ball until July 19, 2016 2 for a total amount of $76,500.00.
The agreement expressly provided:
That on approval of the aforesaid settlement, the judgment entered against defendants, approving the same, shall be satisfied and Charles Moody and Jean Moody and Safeco Insurance Company, their insurer, are discharged of and from any future and/or further liability to Sheila Dionne Ball, a minor, and/or Deborah A. Ball, her mother and next friend, all liability for payments under the annuity contract to be the sole responsibility of the A+ rated life insurance company through which the annuity contract has been purchased.
Further, in entering into the aforesaid settlement, the defendants are not to be barred from asserting any claims against Sheila Dionne Ball and/or Deborah A. Ball for indemnity and/or proration of liability, in connection with other claims which might be asserted, as the result of this incident, however, their right to recover therefor is limited as per Section 537.065, R.S.Mo. [sic]
Further, the judgment entered herein is not to be construed to collaterally estop any party hereto from asserting any claim and/or in making any defense to any other action which might be instituted as the result of the incident in question. (Our emphasis).
August 27, 1986: A third-party petition was filed in the wrongful death action by the Moodys against Sheila Ball, the action then being styled Doris Gay v. Charles Moody and Jean Moody v. Sheila Dionne Ball. The petition sought contribution for Ms. Ball's alleged negligence in causing the deaths of Doris Gay's four children.
October 30, 1986: Gay filed a third amended petition alleging negligence of Moodys and negligence of Ball.
January 22, 1987: A settlement of the wrongful death action between Doris Gay and the Moodys was heard and approved by the court. Pursuant thereto, Ms. Gay received $48,000. The Third-Party Petition against Third-Party Defendant Sheila Ball, by and through her Guardian Ad Litem, Deborah Ball, remained.
February, 1987: A Second-Amended Third-Party Petition was filed against Sheila Ball. This pleading alleged Ball was negligent in supervising the Gay children which (a) permitted them to start the fire, and, (b) failed to discover the fire and help the children exit the house. Third-party defendant Ball, filed her answer admitting that plaintiff's children died in the February 21, 1984 fire but denying each and every other allegation of the second amended third-party petition. As an affirmative defense, Ms. Ball stated that the action was barred by a release, accord and satisfaction.
April 1, 1987: Sheila Ball, by and through her Next-Friend and Natural Guardian, Deborah Ball, asserted a counterclaim against the Moodys. The petition alleged that the injuries sustained by Ms. Ball were caused by the Moodys' negligence in that they failed to repair the defective wiring, failed to provide reasonable means of entry and exit, and failed to provide adequate smoke detectors. Ms. Ball averred that she sustained serious personal injuries and prayed for damages of $3,000,000.00.
April, 1987: The Moodys filed a Motion to Dismiss Ms. Ball's Counterclaim alleging full accord and satisfaction pursuant to the judgment entered on July 17, 1985 by the Circuit Court of St. Louis County.
April 23, 1987: Third-Party Defendant, Sheila Ball, moved for dismissal of the Moodys' Second-Amended Third-Party Petition. The motion alleged that the claim stated in the third-party petition was a compulsory counterclaim which was required to have been raised in the original "friendly suit" filed in the St. Louis County Circuit Court.
April 29, 1987: The circuit court overruled Motion of Third-Party Plaintiff (Moodys) to Dismiss Counterclaim and Motion of Third-Party Defendant (Ball) to Dismiss Third-Party Plaintiffs' Petition.
June, 1987: The Moodys filed a motion to realign the parties. The Moodys also filed a motion for reconsideration of their motion to dismiss third-party defendant's counterclaim. They also filed a certified transcript of the proceedings and judgment in the St. Louis County case.
July 6, 1987: The circuit court granted the motion to realign the parties making the Moodys plaintiffs and Sheila Ball defendant. The court also granted the motion for reconsideration. The court then dismissed the claim of the Moodys against Sheila Ball and the counterclaim of Sheila Ball.
The Moodys' sole point on appeal alleges trial court error in the dismissal of the Moodys' third-party petition seeking contribution from Ms. Ball. Specifically, the Moodys maintain that pursuant to Section 537.065 RSMo 1978, and the judgment entered in the St. Louis County proceeding, they preserved their right to seek contribution from certain specified assets of Ms. Ball--namely a homeowner's insurance policy.
The St. Louis County settlement agreement provided that "the [Moodys] [were] not to be barred from asserting any claims against [Ms.] Ball ... for indemnity and/or proration of liability, in connection with other [third-party] claims which might be asserted, as a result of [the February 21, 1984 fire]." (Emphasis added). These terms were agreed to by both parties and approved by the circuit court on July 17, 1985, pursuant to Section 507.184 RSMo 1978.
Thereafter, on August 27, 1986, Ms. Ball was named as a third-party defendant by the Moodys in the litigation between Doris Gay and Charles and Jean Moody which was then pending in the St. Louis City Circuit Court. In February 1987, the Moodys filed a Second Amended Third-Party Petition. Ms. Ball then moved to dismiss the above third-party petition. In support thereof, Ms. Ball stated that the "purported claim therein, pursuant to Rule 55.32(a) ..., was a compulsory counterclaim, which was required to have been filed in the [St. Louis County proceeding styled Sheila Ball, a Minor, by her Natural Mother and Next Friend, Deborah Ball v. Charles Moody and Jean Moody ]." The motion alleged that because such claim was a compulsory counterclaim and was not filed in the county proceeding, the St. Louis City Circuit Court lacked subject matter jurisdiction to entertain the Moodys' claim against Ms. Ball. On these grounds the trial court eventually dismissed the Moodys' claim. 3
The parties, by brief and by argument, specifically focused upon whether or not a claim, otherwise subject to Rule 55.32(a), compulsory counterclaims, could be reserved in accordance with both Section 537.065 RSMo 1978 and Section 507.184 RSMo 1978. The precise issue raised in the trial court was whether the parties to a lawsuit could avoid the consequences of the compulsory counterclaim rule, Rule 55.32(a), where, with court approval, the parties expressly agreed to preserve the right to future, multiple litigation and where, at the time the stipulation was agreed to, there was adjunct litigation pending wherein the parties fully anticipated that the expressly reserved claim could be resolved without causing a new or additional suit.
The original opinion written by the court in this case erroneously relied on the allegations in the original petition filed by Gay against the Moodys. In the original petition the only grounds of negligence alleged were defective wiring as a defect known to the Moodys, but not corrected. We determined that a third party petition filed by Moody against third party defendant Ball was not proper under the limits of Rule 52.11 and the correct remedy was to strike the third party petition. The court understood Moodys to argue that the theory of negligence asserted by Moodys against Ball was that they were not negligent in regard to the house wiring as a cause of the fire, but Ball caused the...
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