Noland v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 20 April 1993
• Docket Number: No. WD,WD
• Citation: 853 S.W.2d 327
• Parties: Cynthia NOLAND, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent. 45939.
• Court: Missouri Court of Appeals

Page 327

853 S.W.2d 327

Cynthia NOLAND, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.

No. WD 45939.

Missouri Court of Appeals Western District.

April 20, 1993.

Rehearing Denied June 1, 1993.

Janice P. Noland, Camdenton, for appellant.

James L. Sanders, Kansas City, for respondent.

Before KENNEDY, P.J., and BERREY and SPINDEN, JJ.

KENNEDY, Presiding Judge.

This is a conversion case, in which the alleged conversion consisted of defendant's unauthorized removal of plaintiff's wrecked and disabled car from the auto body shop where she had placed it, to an auto salvage company lot some distance away. Trial to a jury resulted in a jury verdict for defendant, and plaintiff has appealed from the ensuing judgment.

Plaintiff on the afternoon of October 22, 1986, was driving her 1984 Pontiac Sunbird automobile south on Wornall Road in Kansas City. At the intersection of Wornall Road and 75th streets, a car going west ran a red light and struck plaintiff's car on the driver's side. Plaintiff was injured, and her car disabled. Before she left the scene to go to the hospital, a person from Durham Brothers Auto Body asked her if she would like him to tow the car to Durham Brothers Auto Body. Durham Brothers Auto Body was at 74th and Prospect, not far away from the place of the car wreck. Plaintiff authorized the person to tow her car to Durham Brothers.

Plaintiff's father, who lived at Camdenton, engaged a flatbed truck and driver to accompany him from Camdenton to Kansas City to get the car and return it to Camdenton. When they went to Durham Brothers at about 9:00 o'clock a.m. on October 31, plaintiff's car was gone. Plaintiff's father made two telephone calls to State Farm, with no satisfaction. His third call was to a Camdenton State Farm agent, who evidently assisted in some way to locate the car at Kansas City Salvage Pool and secure its release to plaintiff's father. At about 2:00 o'clock p.m., plaintiff's father arrived at Kansas City Salvage Pool. The car was released to him. It was loaded on the truck, and was transported back to Camdenton.

The four or five hour delay and the additional travel for the truck and driver cost plaintiff an additional $150.

After the trial, the trial judge, upon defendant's motion under Rule 55.03, assessed against plaintiff $5,000 attorney's fees and $1,844.11 costs, from which order plaintiff has appealed.

Taking up first the appeal from the judgment in the conversion action:

Plaintiff says the trial court erred in submitting to the jury the liability issue in the conversion action--that she was entitled to a directed verdict on the issue of liability. She argues that the defendant in its opening statement to the jury admitted the facts establishing its liability for the conversion. If this is the case, the court may direct a verdict for the plaintiff. Consolidated Pub. Water Supply Dist. No. C-1 v. Farmers Bank, 686 S.W.2d 844, 849 (Mo.App.1985).

Plaintiff filed no post-trial motion for judgment notwithstanding the verdict. Rule 72.01(b) provides that, when a motion for a directed verdict made at the close of all the evidence is denied, "the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion." The rule then provides for a post-trial motion for judgment in accordance with the motion for directed verdict, notwithstanding the verdict. A motion for judgment n.o.v. or motion for new trial is necessary for the preservation of error in the court's denial of the motion for a directed verdict. See Frisella v. Reserve Life Ins. Co., 583 S.W.2d 728 (Mo.App.1979). By failing to file a motion for judgment n.o.v., plaintiff has failed to preserve the alleged error of the court in denying the motion for directed verdict.

Plaintiff in her reply brief, however, says the court's denial of her motion for a directed verdict was plain error. This is an appeal to Rule 84.13(c), which provides:

Plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised or preserved, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.

The request that we review as for plain error is addressed to the court's discretion. In this case, we do not deem "manifest injustice" or "miscarriage of justice" to have resulted. Assuming plaintiff was entitled to a directed verdict on liability in the conversion case, the actual damage, according to plaintiff's own evidence, was relatively small. ¹ Plaintiff makes no attempt to excuse the failure to file a motion for judgment n.o.v. We decline to waive our requirements for preservation of error in order to review the submissibility of plaintiff's conversion case.

Plaintiff makes several other allegations of trial court error, but plaintiff did not file a motion for a new trial, as provided in Rule 78.07. The rule says that "allegations of error to be preserved for appellate review must be included in a motion for a new trial ..." except certain questions not relevant here. The allegations of error attempted to be raised here on appeal have therefore not been preserved for review. Browning v. Salem Mem. Dist. Hosp., 808 S.W.2d 943 (Mo.App.1991). We decline to review them as plain error under Rule 84.13(c).

RULE 55.03

SANCTIONS

The trial court after the trial imposed Rule 55.03 and section 514.205, RSMo Supp.1992, sanctions against plaintiff. No sanctions were imposed against plaintiff's attorney, who was plaintiff's mother. The order required plaintiff to pay $5,000 attorney's fees and $1,844.11 for costs. The court's order imposing sanctions was based upon a finding that "plaintiff is in violation of Supreme Court Rule 55.03 and Section 514.205 RSMo." The order contained findings of a number of plaintiff's offenses against local court rules and against good practice.

Included among the Court's findings in the Rule 55.03 order were findings that plaintiff had made a frivolous claim against State Farm for damages and attorney's fees for defendant State Farm's alleged vexatious refusal to pay plaintiff's damages caused by State Farm's insured in the automobile collision, and that she had made a frivolous claim for punitive damages for the conversion. To explain: Plaintiff's petition was in two counts. Count I was against Gary Trubore, State Farm's insured, for damages for personal injuries and property damage sustained by plaintiff in the October 22 collision. (This count was dismissed without prejudice before trial.) Count II was against State Farm for its alleged conversion of plaintiff's automobile. In the conversion count against State Farm, plaintiff threw in the following paragraph: "That Defendant State Farm has failed and refuses to pay for Plaintiff's losses for personal injury and property damage as more fully alleged in Count I, such failure and refusal is in violation of Section 375.296 and 375.420, RSMo." Plaintiff then requested damages for vexatious delay and for attorney's fees.

Plaintiff also alleged in her petition for conversion that State Farm's conduct "was outrageous in that it was done with an evil motive to benefit defendant State Farm and in reckless indifference of the plaintiff's rights." Included in the prayer of the petition was a prayer for punitive damages.

Did the trial court properly impose sanctions against the plaintiff?

CLAIM FOR VEXATIOUS REFUSAL TO PAY

The claim for damages for vexatious refusal to pay and for attorney's fees under sections 375.296 and 375.420, RSMo 1986, was indeed frivolous. Neither of the two cited sections applies to a negligence claim against an insurance company's liability insured, but only to claims upon the contract, or policy, of insurance. Under Rule 55.03, an attorney in signing a pleading, motion, or other paper, certifies that he believes, upon reasonable inquiry, that it is warranted by existing law. See Saint Amant v. Bernard, 859 F.2d 379, 382 (5th Cir.1988); Ingram v. Horne, 785 S.W.2d 735 (Mo.App.1990). Plaintiff was in violation of Rule 55.03 in making the claim for vexatious refusal to pay.

The claim for vexatious refusal to pay, however, would not by itself justify the assessment against plaintiff of attorney's fees of $5,000 and costs of $1,844.11. Plaintiff dismissed this portion of her claim the morning of the trial. State Farm could have spent only a minimal amount in defending the claim. It required no collection of evidence, no discovery, and only a minimal amount of legal research. The claim did not cause the defendant a trip to the courthouse, or a telephone call. The sanction of attorney's fees and costs are to compensate the opposing party the cost of defending against the baseless motion or pleading. Dillard Dep't Stores, Inc. v. Muegler, 775 S.W.2d 179, 186 (Mo.App.1989). A sanction of $100 attorney's fees against the plaintiff would be sufficient.

CLAIM FOR PUNITIVE DAMAGES

As for the claim for punitive damages, we are unable to find in the record any support for the court's imposition of Rule 55.03 sanctions against plaintiff. It should first be noticed that ...