Shelter Mut. Ins. Co. v. Parrish

• Decision Date: 26 September 1983
• Docket Number: No. 12959,12959
• Citation: 659 S.W.2d 315
• Parties: SHELTER MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. Patrick S. PARRISH, Defendant, and Douglas Lyle Gailey, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 315

659 S.W.2d 315

SHELTER MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. Patrick S. PARRISH, Defendant and Douglas Lyle Gailey, Defendant-Appellant.

No. 12959.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 26, 1983.

Motion for Rehearing or to Transfer

Denied Oct. 18, 1983.

Application to Transfer Denied

Nov. 22, 1983.

Raymond E. Whiteaker, Lynn C. Rodgers, Richard A. Massie, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for defendant-appellant.

Kenneth H. Reid, Michael J. Patton, Turner, Reid, Duncan, Loomer & Patton, Springfield, for plaintiff-respondent.

FLANIGAN, Presiding Judge.

Plaintiff Shelter Mutual Insurance Company brought this action against defendants Patrick Parrish and Douglas Gailey. On July 18, 1980, Shelter issued to Parrish its "apartment owner's policy," including liability coverage. The declarations sheet of the policy shows the policy period to be from July 18, 1980, to January 18, 1981. The litigation stems from an incident which occurred on November 25, 1980, in which Parrish, using a .357 Magnum pistol, shot Gailey.

Shelter's petition alleged: 1. Issuance of the policy to Parrish; 2. The contents of the policy; 3. The intent of Parrish and Shelter that the policy period be three months; 4. The shooting incident; 5. The filing, by Gailey against Parrish, of a tort action (seeking $5,000,000 actual damages for personal injuries and $10,000,000 in punitive damages as a result of the shooting incident) and the pendency of that action.

The petition requested the following alternative relief:

(1) Reformation of the policy to correct a mutual mistake of Shelter and Parrish so that, as reformed, the policy period would be from July 18, 1980, to October 18, 1980, with the result that the policy was not in effect on the date of the shooting incident; or (2) "If the court should find that the policy should not be reformed and that the policy period properly was and is from July 18, 1980, to January 18, 1981," a declaration that the policy did not afford Parrish coverage with respect to the defense of the tort action or any judgment which Gailey might obtain against Parrish therein. The issues which form the basis for the second request will be referred to as "the declaratory judgment issues."

Sitting without a jury the trial court denied the relief of reformation but found in favor of Shelter on the declaratory judgment issues and awarded the declaration requested. Only defendant Gailey appeals.

Gailey contends that the trial court erred in depriving him of his right to trial by jury on the declaratory judgment issues.

The record reflects that the case had been set for jury trial at the request of defendant Parrish. On December 11, 1981, plaintiff Shelter filed a "motion to strike jury trial setting." In the suggestions accompanying that motion Shelter stated, "plaintiff is advised that defendant Gailey also demands a jury trial." Gailey's counsel appeared at the hearing on the motion and opposed it. On December 31, 1981, the court sustained Shelter's motion.

On the day of the trial, June 30, 1982, and before the reception of evidence, counsel for Gailey renewed his request for a jury and it was not granted. Shelter, properly, makes no claim that Gailey waived his right to a jury by entering into trial before the court without objection. See Rule 69.01(b)(4). ¹

Defendant Gailey argues that he was entitled to a jury trial with respect to the declaratory judgment issues because: (1) a jury trial had been requested and the trial court lost equity jurisdiction when it found the issues against plaintiff Shelter and in favor of defendants on Shelter's claim for reformation of the policy and (2) there were substantial factual matters with respect to the declaratory judgment issues which should have been submitted to a jury.

Seeking to uphold the ruling of the trial court denying Gailey a trial by jury, Shelter argues: (1) Gailey's contention has not been preserved because Gailey did not appeal from the trial court's order of December 31, 1981, and, alternatively, (2) even if the trial court erred in denying Gailey his right to trial by jury, Gailey was not prejudiced by that ruling because even if a jury trial had been held the trial court would have been required to direct a verdict on the declaratory judgment issues in favor of Shelter. In support of its latter position, Shelter argues: (1) the burden of proof on the issue of whether the shooting incident was "an occurrence," as required by and defined in Shelter's policy, was on the defendants, including Gailey; (2) defendants did not meet their burden of proof and, indeed, the evidence was to the effect that the shooting was not "an occurrence."

For the reasons which follow, this court holds that Gailey's contention has been preserved for appellate review, that the trial court erred in denying Gailey a trial by jury on the declaratory judgment issues, and that the error was not prejudicial and does not require reversal and remand because Gailey, who had the burden of proof on the coverage issue, failed to present evidence sufficient to create an issue of fact for submission to a jury. This court also holds that, as a matter of law, the shooting incident was not "an occurrence." ²

The trial court's order of December 31, 1981, sustaining Shelter's motion, was not an appealable order. "Absent specific authority, appeals do not lie from rulings on motions which do not constitute a final disposition of the cause, as cases are not to be brought to appellate courts by appeal in detached portions." Morrison v. Estate of Martin, 427 S.W.2d 783, 784 (Mo.App.1968). Morrison points out that the right of appeal is purely statutory and where the statutes do not give such a right, no right of appeal exists.

Sec. 512.020 provides, in pertinent part: "Any party to a suit aggrieved by any judgment of any trial court in any civil cause ... may take his appeal to a court having appellate jurisdiction from any order granting a new trial ... or from any final judgment in the case ...; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case."

Although § 512.020 permits the appeal from certain orders therein specified, including an order granting a new trial, an order of the type involved here is not so specified. The propriety of the trial court's denial of a jury trial is reviewable on this appeal by Gailey from the final judgment in the case.

The petition combined a claim for reformation with a claim for a declaratory judgment. In an action for declaratory judgment brought pursuant to Chapter 527, a party has the right, under § 527.090, to a trial by jury for determination of fact issues. K.D.R. v. D.E.S., 637 S.W.2d 691, 695 (Mo. banc 1982); M.F.A. Mutual Insurance Co. v. Quinn, 259 S.W.2d 854, 859 (Mo.App.1953). On the other hand "[r]eformation of a written instrument has long been considered an equitable proceeding." Bridge Development Co. v. Vurro, 519 S.W.2d 321, 325 (Mo.App.1975).

In State ex rel. Willman v. Sloan, 574 S.W.2d 421 (Mo. banc 1978), the following principles were stated: The Missouri Constitution ³ provides, Art. I, § 22(a), "[t]hat the right of trial by jury as heretofore enjoyed shall remain inviolate"; however, there is no right to trial by jury in a case in equity; the general rule is that "equity will retain jurisdiction of a cause once it has acquired it in order to afford full relief"; the general rule does not apply, however, "when the facts relied on to sustain the equity jurisdiction fail of establishment" (emphasis in original); a court of equity does not have jurisdiction to render a judgment for a plaintiff on legal issues in the absence of a finding that some equitable right of the plaintiff has also been violated (emphasis added); the exception applies in certain situations, including "where the equitable claims of plaintiff are ... found adversely to him ... and thus there remains no equity in the case."

The so-called "doctrine of equitable clean-up," which is that "when equitable jurisdiction attaches the court may determine the legal issues incident to the entire case," Linville v. Wilson, 628 S.W.2d 422 (Mo.App.1982), was eliminated from this case when the trial court denied Shelter relief on its claim for reformation.

A similar situation arose in Jaycox v. Brune, 434 S.W.2d 539 (Mo.1968). There plaintiff brought an action in two counts. Count 1 was based on a claim in equity and Count 2 was based on an action at law. Plaintiff filed a request for a jury trial and the motion was overruled "several weeks before the trial." During the trial the trial court dismissed Count 1 on motion of the defendants. After the trial the trial court entered judgment in favor of defendants on Count 2. On the appeal by plaintiff, plaintiff did not challenge the court's ruling on Count 1 but claimed that the court erred in denying his motion for a jury trial on Count 2. In upholding plaintiff's contention the supreme court held that the trial court "lost its equity jurisdiction and should have then granted plaintiff's request for a jury trial on Count 2 (or it might have sustained the motion conditionally in the first instance). This, of course, will require a new trial of the issues on Count 2." (Emphasis added.)

The supreme court also said, in language applicable here, "In this situation we reach the question,--did plaintiff's evidence on Count 2 fail as a matter of law to make a case submissible to a jury? If so, we could reasonably hold that he was not prejudiced by the trial to the court." (Emphasis in original.)

Although Jaycox involved an inquiry by the supreme court into the sufficiency of a plaintiff's evidence to make a submissible case, that principle applies to defendant Gailey...