Sotierescu v. Sotierescu

• Decision Date: 12 June 2001
• Parties: (Mo.App. E.D. 2001) Alicia Sotierescu, Appellant v. Daniel Sotirescu, Respondent. ED77393 0
• Court: Missouri Court of Appeals

52 S.W.3d 1 (Mo.App. E.D. 2001)

Alicia Sotierescu, Appellant v. Daniel Sotirescu, Respondent.

ED77393

Missouri Court of Appeals Eastern District

06/12/2001

Appeal From: Circuit Court of the St. Louis County, Hon. Robert L. Campbell

Counsel for Appellant: Robert M. Heggie

Counsel for Respondent: John J. Collins

Opinion Summary: Wife Alicia Sotirescu appeals the trial court's grant of summary judgment in favor of husband Daniel Sotirescu in her suit for personal injuries from alleged assaults during their marriage. Husband cross-appeals the trial court's judgment granting Wife's motion for expenses and awarding Wife $2,000 in attorney's fees and $380.50 in travel expenses as sanctions for failure to comply with the court's scheduling order.

Division Three holds: As a matter of law, there is no mandate whether a tortious action must be heard prior or subsequent to a dissolution proceeding, and therefore summary judgment in favor of Husband was improper on res judicata grounds. The trial court did not err in converting the motions to dismiss to a motion for summary judgment, nor did it abuse its discretion in awarding sanctions for violating its scheduling order.

Gaertner., Sr., P.J. concurs, Crahan, J., concurs in part and dissents in part.

George W. Draper III, Judge

Alicia Sotirescu (hereinafter, "Wife") appeals the trial court's grant of summary judgment in favor of Daniel Sotirescu (hereinafter, "Husband") in her suit for personal injuries stemming from a series of assaults allegedly inflicted upon her during the course of their marriage. Wife contends the trial court erred in granting summary judgment on the grounds of res judicata and collateral estoppel because: 1) the finding in the prior dissolution proceeding cannot be used to deprive her in a subsequent tort suit of her fundamental right to a jury trial, and 2) the issue regarding marital misconduct in the dissolution proceeding is different from findings required in her suit for assault and battery. Husband cross-appeals the trial court's judgment granting Wife's motion for expenses and awarding Wife $2,000 in attorney's fees and $380.50 in travel expenses as sanctions for failure to comply with the court's scheduling order. In this consolidated appeal, we reverse and remand, in part, and affirm, in part.

The facts of the case are not in dispute. Husband and Wife were married in 1992. On June 23, 1997, Wife filed a petition for dissolution claiming the marriage was irretrievably broken due to Husband's physical and mental cruelty. On January 12, 1998, Wife filed a tort action against Husband alleging the acts of physical violence committed by Husband occurred during the course of their marriage and she suffered personal injury. Husband was served with a summons for this case the following day, immediately prior to the hearing on Wife's dissolution petition. Wife did not petition the court to hear the tort action prior to the dissolution proceeding, nor does the record indicate that Wife made any effort to advise the dissolution court that the tort case had been filed. At the dissolution hearing, Wife testified that Husband caused her injuries during the course of their marriage. The commissioner of the family court found neither party engaged in marital misconduct.

On February 5, 1998, the findings and recommendations of the commissioner were adopted as the judgment of the court. On February 27, 1998, Wife filed a motion for new trial alleging, inter alia, that the court erred in finding no marital misconduct occurred. This motion was denied and Wife did not appeal. Final judgment on the dissolution petition was entered on March 19, 1998.

With respect to the tort action, Wife filed an amended petition on October 27, 1998, alleging that Husband struck her during the course of their marriage causing injury to her right elbow. The amended petition also raised additional counts denominated as a domestic violence tort, a federal Violence Against Women Act violation, and a claim of intentional infliction of emotional distress. As well, Wife requested a jury trial. Husband responded, filing two motions to dismiss and a motion for summary judgment raising the affirmative defenses of collateral estoppel and res judicata.

On November 30, 1999, after notice to and consent by both parties, the trial court ruled that Husband's motions to dismiss would be treated as additional grounds for summary judgment directed against the entire petition. Wife filed a motion for expenses and attorney's fees on December 17, 1999, alleging that Husband failed to comply with the trial court's previous scheduling order requiring all dispositive motions be submitted by February 1, 1999. Wife asserted that Husband failed to include any information on his motion for summary judgment that was not known prior to that date.

On December 20, 1999, the court entered summary judgment in favor of Husband on all of Wife's claims. It also granted Wife's motion for expenses and awarded her $2,000 in attorney's fees and $380.50 in travel expenses as sanctions against Husband. Husband and Wife appeal.

In review of summary judgment, we review the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). We accord the party against whom summary judgment was entered the benefit of every doubt. Green v. Washington University Medical Center, 761 S.W.2d 688, 689 (Mo. App. E.D. 1988). Summary judgment is intended to move the parties beyond the petition's allegations and determine if a material fact for trial exists. Martin v. City of Washington, 848 S.W.2d 487, 491 (Mo. banc 1993). Appellate review of the grant of summary judgment is purely a question of law and, hence, employs the same criteria as imposed by the trial court in its initial determination of the propriety of the motion. ITT Commercial Finance, 854 S.W.2d at 376.

Summary judgment will be granted as a matter of law to the moving party when there is no genuine issue as to any material fact. Rule 74.04(c)(3). The moving party bears the burden of establishing a right to judgment as a matter of law. Following the moving party's prima facie showing, summary judgment will be granted if the responding party fails to reply with specific facts showing a genuine issue of material fact exists for trial or with a demonstration that judgment as a matter of law is incorrect. Rule 74.04(e). Wife claims that the trial court erred in its grant of summary judgment in favor of Husband because he was not entitled to judgment as a matter of law since Wife's claims were not barred by res judicata.

Res judicata is comprised of two separate and distinct doctrines: issue preclusion, known as collateral estoppel and claim preclusion, known as res judicata. Wolfe v. Central Mine Equipment Co., 895 S.W.2d 83, 87 (Mo. App. E.D. 1995). In determining whether a claim is barred by collateral estoppel, or issue preclusion, we consider four factors: 1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; 2) whether the prior adjudication resulted in a judgment on the merits; 3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and 4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit. Meckfessel v. Fred Weber, Inc., 901 S.W.2d 335, 339 (Mo. App. E.D. 1995).

In order for a claim to be barred by res judicata, or claim preclusion, the following factors must be met: 1) identity of the thing sued for; 2) identity of the cause of action; 3) identity of the persons and parties to the action; and 4) identity of the quality of the person for or against whom the claim is made. Doherty v. McMillen, 805 S.W.2d 361, 362 (Mo. App. E.D. 1991).

Husband directs our attention to Horwitz v. Horwitz, 16 S.W.3d 599 (Mo. App. E.D. 2000) for the proposition that Wife's intentional tort claims are collaterally estopped. The husband in Horwitz filed for dissolution from his wife, failing to disclose this information to her for two months and intentionally delaying serving her with notice for fourteen months. Id. at 601. After learning of the pending dissolution action and prior to being served with notice, the wife filed a lawsuit sounding in various torts against her husband. Id. The tort lawsuit had nine claims including: breach of confidential or fiduciary relationship by deception and fraud; battery; recovery of necessary expenses; intentional infliction of emotional distress; negligent infliction of emotional distress; violation of Missouri Wiretap Law; violation of Federal Wiretap Act; private nuisance; and invasion of privacy. Id. Once the wife was served with notice of the dissolution, she counterclaimed in that lawsuit requesting spousal maintenance, sole physical and legal custody of the children, and child support. Id.

The trial court joined both actions. Id. After the court dissolved the marriage, the husband filed a motion to dismiss the tort claims against him on the grounds of res judicata, collateral estoppel, and failure to state a claim. Id. at 601-02. The trial court granted the husband's motion and the wife appealed. Id. at 602. Upon appeal, this Court affirmed the decision of the trial court.

However, collateral estoppel did not bar all of the wife's intentional tort claims. In Horwitz, this Court divided the wife's tortious claims against the husband into three groups: breach of fiduciary duty, claim for necessaries, and the remaining tort claims. The wife's claim for breach of fiduciary duty was barred by collateral estoppel. Id. at 604. In her claim for necessaries, we held she attempted to split her cause of action in that she attempted to receive compensation for maintenance and child support both in the dissolution...