Sherman v. Mo. Professionals Mutual-Physicians Prof'l Indem. Ass'n, WD 79836

• Decision Date: 14 March 2017
• Docket Number: WD 79836
• Citation: 516 S.W.3d 867
• Parties: Tracy Lynn SHERMAN, Appellant, v. MISSOURI PROFESSIONALS MUTUAL–PHYSICIANS PROFESSIONAL INDEMNITY ASSOCIATION (MPM–PPIA), Respondent.
• Court: Missouri Court of Appeals

516 S.W.3d 867

Tracy Lynn SHERMAN, Appellant,

v.MISSOURI PROFESSIONALS MUTUAL–PHYSICIANS PROFESSIONAL INDEMNITY ASSOCIATION (MPM–PPIA), Respondent.

WD 79836

Missouri Court of Appeals, Western District.

OPINION FILED: March 14, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2017

Douglas Ponder and Jaclyn M. Zimmerman, St. Louis, MO, Attorneys for Appellant.

Hamp Ford and Jill R. Jackson, Columbia, MO, Attorneys for Respondent.

Before Division Three: Karen King Mitchell, Presiding Judge, and Victor C. Howard and Gary D. Witt, Judges

Karen King Mitchell, Presiding Judge

Tracy Sherman appeals from the trial court's grant of Missouri Professionals Mutual–Physicians Professional Indemnity Association's (Insurer's) motion for judgment on the pleadings in her garnishment action under § 379.200.¹ Because the abatement doctrine required the trial court to either stay or dismiss the matter without prejudice, we reverse the entry of judgment on the pleadings and remand for further proceedings consistent with this opinion.

Background²

Sherman obtained a tort judgment against Dr. Michael Kaplan for $500,000, pursuant to a settlement agreement under § 537.065. After that judgment became final, Sherman filed a separate garnishment action under § 379.200 against Insurer, who had issued a professional liability policy to Dr. Kaplan with a liability limit of $500,000. After being served with the garnishment action, Insurer filed a motion to intervene in the underlying tort suit and set aside the $500,000 judgment against Dr. Kaplan. Insurer's motions were granted, and the underlying tort judgment was set aside.³ Insurer then filed a motion for judgment on the pleadings, or in the alternative to dismiss, in the garnishment action, asking the court to take judicial notice of the underlying tort file and the court's ruling setting aside the tort judgment. The garnishment court took judicial notice as requested and offered to stay the matter, but Sherman opposed a stay, seeking instead the opportunity to appeal. The garnishment court then granted judgment on the pleadings in favor of Insurer due to the lack of a valid, underlying judgment. Sherman appeals.

Analysis

Sherman raises a single point on appeal; she argues that the trial court erred in granting Insurer's motion for judgment on the pleadings because she had a valid judgment insofar as the trial court in the underlying tort action lacked jurisdiction to allow Insurer to intervene and to set aside the original judgment.

In the underlying tort action, after granting Insurer's motion to intervene and in determining whether to grant Insurer's motion to set aside the original tort judgment, the trial court necessarily had to determine the validity of the underlying tort judgment. In seeking a judgment on the pleadings in the garnishment action, Insurer was injecting into the garnishment case the issue of the validity of the underlying tort judgment. As the garnishment action then involved "the same subject matter and parties as a previously filed action so that the same facts and issues [we]re presented," the issue came squarely within the abatement or "pending action" doctrine. Golden Valley Disposal, LLC v. Jenkins Diesel Power, Inc. , 183 S.W.3d 635, 641 (Mo. App. S.D. 2006).

"Abatement, also known as the ‘pending action doctrine,’ holds that where a claim involves the same subject matter and parties as a previously filed action so that the same facts and issues are presented, resolution should occur through the prior action and the second suit should be dismissed." U.S. Bank, N.A. v. Coverdell , 483 S.W.3d 390, 401 (Mo. App. S.D. 2015) (quoting HTH Cos., Inc. v. Mo. Dep't of Labor & Indus. Relations , 154 S.W.3d 358, 361 (Mo. App. E.D. 2004) ).⁴ "The ‘pendency of a prior action is not ground for dismissal with prejudice, but ground only to stay or abate the later action.’ " Id . (quoting Hubbard v. Mercantile Bank of Kansas City , 773 S.W.2d 517, 519 (Mo. App. W.D. 1989) ).

To permit both suits to continue "would cause unseemly clashes of authority between courts of equal dignity and jurisdiction, and would permit one, in the midst of a lawful exercise of jurisdiction first obtained by the other, to step in and overthrow the proceedings thus rightfully instituted and lawfully carried out by the other. It seems clear this should not be allowed. ..."

In re Moreau , 161 S.W.3d 402, 407 (Mo. App. S.D. 2005) (quoting State ex rel. Coffield v. Buckner , 198 Mo.App. 230, 200 S.W. 94, 96 (1917) ). Accordingly, once the issue in the garnishment proceeding evolved into the determination of the validity of the underlying tort judgment and propriety of the decision of the court in the underlying tort suit to set aside its own judgment, the garnishment court was left with only two options—either stay the garnishment proceedings pending the outcome of the underlying tort suit or dismiss the garnishment proceedings without prejudice.

Here, though the trial court apparently offered to stay the proceedings, Sherman was opposed. In response, the trial court granted Insurer's request for judgment on the pleadings, rather than take the only other option available—dismissal without prejudice—under the pending action doctrine.⁵ As a result, we are faced with the same issue (validity of the September 28, 2015 judgment and the judgment allowing intervention and setting aside the September 28, 2015 judgment) in two separate appeals. We do not allow parties to litigate the same claim against the same opponent in simultaneous appeals because doing so could result in either wasteful duplication or inconsistent judgments. In re KCP & L Greater Mo. Operations Co. , 408 S.W.3d 175, 188 n.17 (Mo. App. W.D. 2013), as modified (June 25, 2013). And "[t]he goal of avoiding inconsistent judgments is not flexible." Id .

After the court in the underlying tort suit set aside its original judgment, Sherman appealed both that ruling and the trial court's ruling allowing Insurer to intervene. In case number WD79718, Sherman v. Kaplan , also handed down this date, we held that the trial court lacked jurisdiction to grant Insurer's motion to intervene and, therefore, erred in setting aside the underlying tort judgment on Insurer's motion. If the garnishment court's grant of judgment on the pleadings were allowed to stand in this appeal, the result would be inconsistent judgments. Accordingly, because the trial court erred under the "pending action doctrine," in granting judgment on the pleadings, rather than staying or dismissing the garnishment action without prejudice,⁶ we must reverse its judgment and remand for further proceedings consistent with this opinion.⁷

Conclusion

The trial court's grant of judgment on the pleadings is reversed, and the matter is remanded for further proceedings consistent with this opinion.⁸

Victor C. Howard and Gary D. Witt, Judges, concur.

1 All statutory citations are to the Revised Statutes of Missouri 2000, as updated through the 2015 Cumulative Supplement, unless otherwise noted.

2 When reviewing the grant of a motion for judgment on the pleadings, we review the allegations in the petition to determine whether the facts pleaded therein are insufficient as a matter of law. Pestka v. State, 493 S.W.3d 405, 408 (Mo. banc 2016). We assume the truth of all facts pled by the non-moving party. State ex rel. Nixon v. Am. Tobacco Co., Inc., 34 S.W.3d 122, 134 (Mo. banc 2000).

3 In Sherman v. Kaplan,...