Roedder v. Callis

• Decision Date: 19 July 2012
• Docket Number: No. ED 97105.,ED 97105.
• Citation: 375 S.W.3d 824
• Parties: Carol S. ROEDDER, Personal Representative of the Estate of Eugene D. Roedder, Appellant, v. Cheryl A. CALLIS and Kortenhof & Ely, PC, Respondents.
• Court: Missouri Court of Appeals

375 S.W.3d 824

Carol S. ROEDDER, Personal Representative of the Estate of Eugene D. Roedder, Appellant,

v.Cheryl A. CALLIS and Kortenhof & Ely, PC, Respondents.

No. ED 97105.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 5, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 19, 2012.

Application for Transfer Denied Sept. 25, 2012.

Laurence D. Mass St. Louis, MO, for appellant.

Kenneth C. Brostron, St. Louis, MO, for respondents.

Introduction

PATRICIA L. COHEN, Presiding Judge.

Carol S. Roedder (Plaintiff), the personal representative of the estate of Eugene D. Roedder, appeals from the judgment of the Circuit Court of St. Louis County granting Cheryl Callis and Kortenhof & Ely, P.C.'s (Defendants) motion to dismiss for lack of legal capacity to bring suit. Plaintiff contends that the trial court erred in dismissing Mr. Roedder's claims of legal malpractice, breach of fiduciary duty, and punitive damages because these claims survived Mr. Roedder's death. We reverse.

Background

On December 3, 2004, Mr. Roedder was involved in an automobile collision with Gregory V. Monroe. As a result of the collision, Mr. Monroe was rendered quadriplegic. On August 26, 2005, Mr. Monroe and his wife, E'Wana Monroe, filed suit against Mr. Roedder for injuries resulting from the collision and loss of consortium. Defendant Cheryl Callis, an attorney with Kortenhof & Ely, P.C., represented Mr. Roedder during the lawsuit. Following a trial, the Circuit Court of St. Louis County entered judgment against Mr. Roedder and in favor of Mr. and Mrs. Monroe in the amount of $24,995,794.56.

On May 10, 2010, Mr. Roedder filed a lawsuit in the Circuit Court of the City of St. Louis against Defendants for legal malpractice, breach of fiduciary duty, and punitive damages.¹ Mr. Roedder alleged that Defendants' “negligence and carelessness” in handling his defense resulted in a judgment against him for “excessive actual damages.” Mr. Roedder also alleged that Defendants breached their fiduciary duty by “plac[ing] the interests of the auto liability insurance carrier” above his interests. Shortly after filing his lawsuit, Mr. Roedder died. Defendants filed a suggestion of Mr. Roedder's death and moved to dismiss Mr. Roedder's case for improper venue or, in the alternative, to transfer venue to the Circuit Court of St. Louis County. On September 15, 2010, Plaintiff moved the trial court to substitute her as plaintiff in Mr. Roedder's lawsuit. The trial court granted the motion to substitute Plaintiff and transferred the case to the Circuit Court of St. Louis County.

Thereafter, Defendants filed a motion to dismiss on the grounds that Plaintiff lacked legal capacity to sue because Mr. Roedder's claims abated upon his death.² The trial court granted Defendants' motion without stating the basis for its decision.

Standard of Review

The question of whether a party has standing is a question of law that we review de novo. In Their Representative Capacity as Trustees for the Indian Springs Owners Ass'n v. Greeves, 277 S.W.3d 793, 797 (Mo.App. E.D.2009).

Discussion

In her sole point on appeal, Plaintiff contends that Mr. Roedder's “claims for legal malpractice, breach of fiduciary duty and punitive damages” survived his death and thus Plaintiff, as personal representative of Mr. Roedder's estate, was properly substituted as a plaintiff and has standing to pursue Mr. Roedder's claims on behalf of his estate. Defendants argue that Mr. Roedder's claims abated with his death, do not survive to Plaintiff, and therefore, the trial court properly dismissed the case for lack of legal capacity.³

In arguing that Mr. Roedder's claims survive his death, Plaintiff relies on Missouri's survival statutes: Sections 537.010, 537.020 and 537.030.⁴Section 537.010 provides, in pertinent part, that:

Actions for wrongs done to property or interests therein may be brought against the wrongdoer by the person whose property or interest therein is injured. If the person whose property or interest therein is injured is dead, the action survives and may be brought against the wrongdoer by the person appointed as fiduciary for the estate of the deceased person.

Section 537.020 provides, in pertinent part, that:

Causes of action for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, ... but in case of the death of [the injured party] such cause of action shall survive to the personal representative of such injured party....

Section 537.030 excepts four causes of action from survival: slander, libel, assault and battery, and false imprisonment.

1. Legal malpractice claim

Plaintiff contends that whether Mr. Roedder's legal malpractice claim is construed as an action for damage to property (based upon a failure to protect Mr. Roedder's financial interest) and thereby covered by Section 537.010, or as an action for personal injury and thereby covered by Section 537.020, Missouri's survival statutes prevent the abatement of Mr. Roedder's legal malpractice claim. Defendants, by contrast, argue that because legal malpractice cannot be defined solely as either a personal injury or an injury to property, Missouri's survival statutes do not operate to prevent abatement of Mr. Roedder's legal malpractice claim.

In support of her contention that Mr. Roedder's legal malpractice claim survives his death, Plaintiff relies heavily on Gray v. Wallace, 319 S.W.2d 582 (Mo.1959). In Gray, the Supreme Court addressed the interplay of Section 537.020 and Section 537.030 in the context of the survival of a claim for malicious prosecution. Id. at 583. Although not entirely clear, it appears that in Gray, the defendant argued that malicious prosecution, like false imprisonment, which is excepted in Section 537.030, did not survive by virtue of Section 537.020 because it is an injury to “one's personal rights as distinguished from an injury to his person.” Id. at 585. The Supreme Court rejected such a narrow reading of Section 537.020, holding that “it is clear that the legislature used the expression ‘personal injuries' in Section 537.020 in its broadest and most comprehensive sense....” Id. at 584. Thus, the Court held, “[i]t must follow that the legislature intended that the term ‘personal injuries' was to include all actions for injuries to the person whether to the person'srights or to his body.” IcL After determining that malicious prosecution constituted a personal injury within the meaning of 537.020, the Court held that because malicious prosecution was not specifically excepted from survival by Section 537.030, it did not abate by reason of the death of a party. Id. at 585–86.

Gray is instructive in several respects. First, Gray sets out a two-step framework for determining whether a claim survives: (1) is the claim a cause of action for “personal injuries” within the meaning of Section 537.020; and (2) if so, is the claim excepted by Section 537.030. Second, Gray compels us to construe the term “personal injuries” in the context of survival in “its broadest and most comprehensive sense.” Id. at 584. Third, Gray expressly directs that in determining whether a cause of action is excepted by Section 537.030, “only those actions specifically named were to be excepted from those which do not abate.” IcL at 584.

Guided by Gray, we first determine whether Missouri's survival statutes include actions for legal malpractice.⁵ As Defendants correctly note, legal malpractice implicates both an injury to personal rights and property interests. See White v. Auto Club Inter–Ins. Exch., 984 S.W.2d 156, 159 (Mo.App. W.D.1998). As the court concluded in White: “While the injuries sustained in a legal malpractice action involve property interests, the relationship between an attorney and his or her client is pre-eminently personal.” 984 S.W.2d at 159 ( citing Christison v. Jones, 83 Ill.App.3d 334, 39 Ill.Dec. 560, 405 N.E.2d 8, 11 (1980)). Given the Gray court's direction to expansively construe the survival statutes, we conclude that whether legal malpractice is considered an injury to a personal right or to an intangible personal property interest, it is covered by Missouri's comprehensive survival statutes.

We next consider whether legal malpractice claims are excepted by Section 537.030. Because legal malpractice is not “specifically named,” it is not excepted from survival pursuant to Section 537.030. Gray, 319 S.W.2d at 584.

Despite the Gray court's clear direction to broadly construe the survival statutes and narrowly construe the exceptions, Defendants argue that the “unique” nature of legal malpractice claims requires abatement, citing State ex rel. Nat'l Ref. Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418 (1939). We disagree. The claim at issue in Seehorn was a husband's loss of consortium. Id. at 420. Contrary to Defendants' suggestion in their brief, the plaintiff in Seehorn did not invoke the predecessor statute to 537.020 (Section 3280 RSMo 1929) because “[i]t [did] not apply to one who has sustained indirect or consequential damages.” Id. at 421 ( quoting Toomey v. Wells, 218 Mo.App. 534, 280 S.W. 441, 443 (1926) (internal quotation marks omitted)). Rather, the plaintiff relied on the predecessor statute to 537.010 (Section 98 RSMo 1929). Seehorn, 127 S.W.2d at 421. The Court concluded that the husband's loss of consortium claim did not survive under Section 98 because deprivation of a wife's comfort, society, and services is not a “wrong done to a husband's property right or interest.” Id. at 422. Thus, Seehorn does not stand for the proposition that a cause of action that contains elements of both a wrong to a property right and a personal interest necessarily abates. Quite in contrast to this case, in Seehorn, the court determined that the underlying cause of action contained neither elements of a personal injury claim within the...