Stewart v. Sturms
| Decision Date | 19 December 1989 |
| Docket Number | No. 54680,54680 |
| Citation | 784 S.W.2d 257 |
| Parties | Laurie STEWART, Plaintiff/Respondent, v. Jay L. STURMS and Thomas C. Paynter, Defendants/Appellants. |
| Court | Missouri Court of Appeals |
This case is the consolidation of appeals by two defendants of a $150,000.00 judgment for plaintiff in her action for personal injuries arising from the collision of defendants' vehicles. In Division, we affirmed the judgment. Defendants' motions for rehearing were granted. After oral argument before the Court en banc, we affirm.
On October 27, 1984, plaintiff, Laurie Stewart, was riding as a passenger in defendant Thomas Paynter's (Paynter) vehicle. Paynter's vehicle collided with defendant Jay Sturms' (Sturms) vehicle. On January 18, 1985, plaintiff filed a petition for personal injuries against both defendants, seeking $50,000.00 as damages. At that time, § 509.050 RSMo 1978 and parallel Rule 55.05 required a plaintiff seeking money damages for tortious injuries to plead the amount of money sought. In 1987, the statute was amended to eliminate the need to plead a specific dollar amount for tortious injuries but required the prayer to be "for such damages as are fair and reasonable." § 509.050 RSMo 1987 (Supp). The effective date of the amended statute was July 1, 1987. § 509.050 RSMo 1987 (Supp). The bill enacting this change provided that § 509.050 "shall apply to all causes of action accruing after the effective date...." § 45, L.1987, H.B. 700.
Rule 55.05 was amended in May, 1987 and its amendment tracked the amendment of the statute. Rule 55.05. The effective date of the amended Rule was January 1, 1988, with the notation that it might be followed after July 1, 1987.
The trial of this case began on January 6, 1988. During the first half of plaintiff's closing argument, she did not mention a dollar amount for damages, and, on defendants' motion, she was prevented from doing so in the closing half of her argument. The jury returned a verdict for plaintiff against both defendants in the amount of $150,000.00. It assessed fault: 78% against defendant Sturms and 22% against defendant Paynter.
Both defendants objected to the verdict on the ground that it was in excess of the prayer. Plaintiff responded by moving to amend her prayer from $50,000.00 to a prayer for $150,000.00 or to a prayer for "such damages as are fair and reasonable." The court, thus, was confronted with a conflict between Rule 55.05, which facially permitted plaintiff's request, and § 509.050 RSMo 1987 (Supp), which facially operated prospectively only, and, thus, facially prohibited plaintiff's request. The court heard plaintiff's motions, accepted the $150,000.00 verdict and entered judgment in that amount in favor of plaintiff, without indicating which of plaintiff's motions it was granting. The trial court correctly noted that the characterization of and the procedural differences in plaintiff's alternative motions were not determinative. Defendants raised the same objections to the verdict, along with other assertions of error, in their respective motions for a new trial. These motions were denied. The now consolidated appeals followed.
From the record it appears that both defendants were represented by counsel designated by their respective insurers.
Defendants Sturms' policy limits, apparently, were $25,000.00.
Both defendants make several attacks on the entry of the $150,000.00 judgment against them. A number of those attacks are common to both defendants. We address those arguments first.
In their respective Motions for Rehearing in this Court, defendants characterize plaintiff's pleading of $50,000.00 damages as an allegation of fact, rather than as a prayer for relief. This allegation of fact, defendants contend, bound and limited plaintiff to this amount of damages and, therefore, the verdict received and the judgment entered for $150,000.00 were "void".
Paragraph 2 of plaintiff's petition recites a litany of personal injuries, pleads "the sum of about $3,000.00 to date" in lost wages and "the sum of about $7,500.00 to date" for "medical attention", and, then, in the last sentence, states:
[plaintiff] has suffered and will suffer pain, all to her injury and damage in the sum of Fifty Thousand Dollars ($50,000.00), for which sum ... [plaintiff] prays judgment against defendant. (See Appendix)
In Division, we read this last sentence as plaintiff's prayer for relief. This was not a startling or strained reading. It was the interpretation made and the characterization used, repeatedly and consistently, by the trial court and all counsel in their extensive discussion of the $150,000.00 verdict returned by the jury. Thus, a partial example of this colloquy shows:
[Sturms' Counsel] Judge, at this time I would ask that the Court reduce the verdict to $50,000, which is the amount that the prayer in the--to conform to the petition, which is the amount of the prayer in the petition.
[Paynter's Counsel] I would join in that request.
....
[Sturms' Counsel] Okay. Just so the record is--that is to reduce it in accordance with the amount of the prayer in the amended [petition], which is $50,000.
....
[The Court] [T]he Court was absent during the deliberations by the jury this morning.... [I]n the Court's absence Judge Drumm accepted the verdict ... deferring ... an ultimate decision ... to this division to finally enter verdict and judgment, because of the problems arising with the result being three times what the prayer was.
....
[Plaintiff's Counsel] Plaintiff previously requested leave from this Court to amend plaintiff's prayer.... (Emphasis added)
True to their interpretation at trial, both defendants referred to the pleaded $50,000.00 as a "prayer" for relief in their respective motions for a new trial and never characterized this pleading as an allegation of fact. In these motions, defendants asserted the trial court error to be the entry of a $150,000.00 judgment which exceeded the $50,000.00 of plaintiff's "prayer". Thus, the issue of whether plaintiff is bound by an allegation of fact was not raised in defendants' motions for a new trial, and, therefore, this issue was not preserved for appeal. E.g. State v. Northup, 367 S.W.2d 512, 514 (Mo.1963).
Moreover, neither defendant raised this issue as a Point in his appellate brief. Our review is limited to those issues presented in defendant's Points. E.g. Smith v. Welch, 611 S.W.2d 398, 399 (Mo.App.1981). Admittedly, in his initial brief, Sturms did make the general argument that:
A pleader is bound by the allegations of his Petition. 1 This argument, however [Plaintiff's] Amendment of the Prayer Following Judgment is Void, Because Rule 55.33(a) and (b) Do Not Apply, And A Judgment May Not Exceed The Amount Prayed For in the Petition.
was made in the last paragraph under Sturms' Point III which reads:
We are not obligated to search through Sturms' arguments for issues other than those articulated in his Points. E.g. Abney v. Farmers Mutual Ins. Co. of Sikeston, 608 S.W.2d 576, 578 (Mo.App.1980).
It is not until his Reply Brief that Sturms properly presents and develops an argument claiming that plaintiff's pleaded $50,000.00 is as an allegation of fact, rather than a prayer for relief. However, an assignment of error made for the first time in a reply brief does not preserve that issue for review. Kessler v. Kessler, 719 S.W.2d 138, 140 (Mo.App.1986).
More important, perhaps, construing the pleaded $50,000 as a binding allegation of fact rather than as the prayer required by Rule 55.05 elevates form over substance. As noted, the reference to $50,000 appears as a prayer at the conclusion of plaintiff's petition:
"[plaintiff] has suffered and will suffer pain, all to her injury and damage in the sum of $50,000, for which sum ... [plaintiff] prays judgment against defendant." (Emphasis added).
In almost every context, we construe a plaintiff's petition liberally, in favor of the plaintiff, Burgess v. Sweet, 662 S.W.2d 916, 918 (Mo.App.1983), regardless of the form of the petition. Scantlin v. City of Pevely, 741 S.W.2d 48, 50 (Mo.App.1987). Rule 55.05 requires all petitions to include a "demand for judgment for the relief to which [the pleader] deems himself entitled." Former Rule 55.05, in effect when plaintiff filed her petition, required the request for damages in tort cases, other than medical malpractice cases, to specify the amount of damages sought. Plaintiff's petition contains no demand other than her pleaded $50,000. To us, it is clear that plaintiff intended and defendants regarded the pleaded $50,000 in damages as the prayer required by former Rule 55.05.
Sturms also argues the application of Rule 55.05 to a cause of action accruing before July 1, 1987 violates his rights guaranteed by Art. V, § 5 and Art. 1, § 13 of the Missouri Constitution. This argument is based upon the distinction between substantive and procedural rights. Sturms points out that plaintiff's original prayer for $50,000.00 as damages was in compliance with the provisions of § 509.050, RSMo 1978, requiring money damages for tortious injuries to be prayed for in specific dollar amounts. This prayer, along with plaintiff's factual allegations, Sturms contends, determined his decisions on "trial strategy, settlement negotiations, discovery, and [his] right ... to employ additional counsel...." Sturms characterizes these decisions as the exercise of his substantive rights, and, he argues, to permit plaintiff to change her prayer destroys the meaning and effect of his decisions, thus, nullifying his substantive rights. Therefore, he contends, the change in the prayer violates both Article V, § 5 of our Constitution,...
To continue reading
Request your trial
-
Jones by Williams v. Missouri Dept. of Social Services
...Id. Substantive law creates, defines, and regulates rights and duties giving rise to a cause of action. Stewart v. Sturms, 784 S.W.2d 257, 261 (Mo.App.1989). Moreover, substantive law takes away or impairs a vested right acquired under existing law, creates a new obligation, imposes a new d......
-
State v. Casaretto
...rights or obtaining redress for their invasion and does not affect any existing substantive right or its correlated duty. Stewart v. Sturms, 784 S.W.2d 257, 261 (Mo.App., E.D. en banc 1989). The distinction between substantive law and procedural law is that substantive law relates to the ri......
-
66, Inc. v. Crestwood Commons Redevelopment Corp.
...pleading; and (3) the injustice or prejudice caused the opposing party if the request is granted. Id., citing Stewart v. Sturms, 784 S.W.2d 257, 262 (Mo.App.1989). A consideration of the Green factors provides a substantial basis for determining that Crestwood Commons, Hycel, and Schnuck sh......
-
Cox v. Ripley County
...pleading; and (3) the injustice or prejudice caused the opposing party if the request is granted." Id at 797 (citing Stewart v. Sturms, 784 S.W.2d 257, 262 (Mo.App. 1989)). It is in this context that the Supreme Court in Green stated: Before 1993, Rule 55.08 was generally interpreted to mea......