O'Neal v. Agee
| Decision Date | 14 December 1999 |
| Citation | 8 S.W.3d 238 |
| Parties | (Mo.App. E.D. 1999) . Gregory E. O'Neal and Brenda C. O'Neal, Plaintiffs/Appellants, v. Sharon A. Agee and Agee Law Firm, P.C., Defendants/Respondents. Case Number: ED75507 Missouri Court of Appeals Eastern District Handdown Date: |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of the City of St. Louis, Hon. Jimmie M. Edwards
Counsel for Appellant: Mark T. McCloskey
Counsel for Respondent: Sharon Agee
Opinion Summary: Gregory and Brenda O'Neal (husband and wife) sued Sharon Agee and Agee Law Firm, P.C., for legal malpractice. The O'Neals appeal from a judgment granting a new trial in favor of Agee and a directed verdict in favor of Agee on the wife's underlying loss of consortium claim.
AFFIRMED IN PART AND REVERSED IN PART.
Division Three holds: The trial court acted within its discretion in granting Agee a new trial on the ground the verdict was against the weight of the evidence, but it erroneously directed a verdict on wife's loss of consortium claim.
Opinion Vote: AFFIRMED IN PART AND REVERSED IN PART. Teitelman, P.J., and Mooney, J., concur.
Plaintiffs, Gregory and Brenda O'Neal (individually, "husband" and "wife"), sued defendants, Sharon Agee and Agee Law Firm, P.C., for legal malpractice. Plaintiffs appeal from a judgment granting a new trial in favor of defendants and a directed verdict in favor of defendants on wife's underlying loss of consortium claim. We affirm the grant of a new trial but reverse the directed verdict.
In January, 1992, husband was involved in a multiple car accident during morning rush hour traffic on Interstate Highway 55 in the St. Louis metropolitan area. For the sake of simplicity, we will consider husband to be driver #1 and will refer to the drivers of the vehicles that immediately followed as drivers #2 though #5. As traffic ahead of him came to an abrupt halt, husband applied his brakes and was able to bring his vehicle to a complete stop without striking the vehicle ahead of him. Driver #2 did the same. Driver #3 was unable to stop and collided with driver #2, causing driver #2's vehicle to move forward but not into contact with husband's vehicle. What happened next is subject to dispute. According to driver #4, he brought his vehicle to a complete stop without colliding into driver #3. Driver #5 then collided into him, causing him to collide with driver #3. According to driver #5, on the other hand, driver #4 collided with driver #3 prior to being hit by driver #5. Nevertheless, it is undisputed that driver #4's collision with driver #3, whether before or after driver #5's collision with driver #4, caused driver #2's vehicle to collide with husband's (driver #1).
As a result of the collision, husband suffered a herniated cervical disc in his neck and nerve damage in his left elbow. He underwent separate surgical procedures to repair each injury. His medical bills exceeded $21,000. Despite these surgeries, he continued to experience pain in both his neck and left arm and has been unable to resume some of the activities in which he participated prior to the accident, such as softball and skiing.
Plaintiffs retained the legal services of Sharon Agee to represent them in a lawsuit against the liable parties.1 Husband sued for negligence; wife sued for loss of consortium. Plaintiffs originally named only driver #5 as a defendant but eventually joined drivers #2, #3, and #4 as more facts became available. Ms. Agee, acting with authority, settled the case against drivers #3 and #5 for $25,000 each. Pursuant to the settlement, plaintiffs were to execute releases whereby they would waive all claims that may arise out of the accident against drivers #3 and #5. The releases that were actually signed by plaintiffs were "general" or "global" releases which released not only the settling parties, but all other parties as well, both actual and potential.
Meanwhile, Ms. Agee discussed with the attorneys for drivers #2 and #4 the possibility of a "nuisance settlement" for a total of $5,000. Ms. Agee claims these drivers made an offer to that effect that she rejected at plaintiffs' behest. Nevertheless, drivers #2 and #4 claimed plaintiffs, through Ms. Agee, had agreed to settle for that amount and filed a motion to enforce settlement. While that motion was pending, those drivers became aware of the general release previously executed by plaintiffs and immediately filed a motion for summary judgment. That motion was granted by the trial court and affirmed on appeal; application for transfer to the Missouri Supreme Court was denied. See O'Neal v. Swyers, 895 S.W.2d 137 (Mo. App. 1995).
Plaintiffs subsequently filed a legal malpractice action against defendants claiming Ms. Agee was negligent in having them execute general releases, which had the legal effect of releasing drivers #2 and #4, without plaintiffs' informed consent. Ms. Agee contends she had obtained plaintiffs' informed consent but plaintiffs subsequently changed their mind.2 At the close of plaintiffs' evidence, the trial court granted defendants' motion for directed verdict on wife's underlying claim of loss of consortium.3 Following the conclusion of all evidence, a jury rendered a verdict in favor of plaintiffs in the amount of $200,000.4 Defendants filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court granted the motion for new trial; plaintiffs appealed.
Plaintiffs first argue the trial court erroneously ordered a new trial. The trial court advanced five separate grounds in support of its order, each of which plaintiffs challenge on appeal. If any of these grounds is correct, this court will affirm that order. Bast v. St. Louis Freightliner, Inc., 676 S.W.2d 42, 43 (Mo. App. 1984).
The first ground advanced by the trial court was that the verdict was against the weight of the evidence. A trial court has discretion to grant one new trial on this ground and that ruling will be reversed only in the event of a manifest abuse of discretion. Rule 78.02; Carpenter v. Chrysler Corp., 853 S.W.2d 346, 359 (Mo. App. 1993). The trial court's broad discretion in this regard results from its...
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