Stine v. Warford

• Decision Date: 31 May 2000
• Citation: 18 S.W.3d 601
• Parties: (Mo.App. W.D. 2000) John Stine, Appellant, v. Debbie Warford, Respondent. WD57423 0
• Court: Missouri Court of Appeals

18 S.W.3d 601 (Mo.App. W.D. 2000)

John Stine, Appellant, v. Debbie Warford, Respondent.

WD57423

Missouri Court of Appeals Western District

05/31/2000

Appeal From: Circuit Court of Jackson County, Hon. Twila Kay Rigby

Counsel for Appellant: Robert Desselle

Counsel for Respondent: Charles Lawhorn and Shawn DeGraff

Opinion Summary: John Stine appeals the trial court's grant of Debbie Warford's motion to dismiss his claim against her for property damage resulting from an automobile accident involving Warford and Stine's daughter-in-law. His daughter-in-law was driving his vehicle at the time of the accident. Stine's daughter-in-law had a default judgment entered against her in the circuit court of Jackson County. Warford based her motion to dismiss "upon res judicata or collateral estoppel." Stine claims the trial court incorrectly found that his claim was barred as a result of a judgment against his daughter-in-law.

Division holds: The trial court erred in granting the motion to dismiss based on either res judicata or collateral estoppel. Stine was neither a party to the prior action, nor in privity with a party to the prior action.

Ronald R. Holliger, Judge

John Stine appeals the trial court's grant of Debbie Warford's motion to dismiss his claim against her for property damage resulting from an auto accident on April 26, 1998. At the time of the accident, Stine owned a 1975 Alpha Romeo being operated by his then daughter-in-law. Stine alleged in his petition that Warford negligently operated her motor vehicle and struck the vehicle he owned causing a total loss.

On March 6, 1996, Stine filed his claim in the Associate Division of the Jackson County Circuit Court. Warford was served in Florida on November 15, 1996, only three days before the summons return date.¹ At a point in time not indicated in the record on appeal, Warford filed her own claim in a Circuit Court Division of Jackson County against Stine's daughter-in-law seeking damages arising from the accident. Stine was not a party to that action. On August 29, 1997, a default judgment was entered in favor of Warford and against the daughter-in-law in the amount of $32,312.08. Warford was represented by the same counsel in both actions.

Stine's Associate Circuit claim was set for hearing on April 14, 1999. Just before trial, Warford filed a motion to dismiss "upon res judicata or collateral estoppel," which was originally overruled by the trial court. The court then heard evidence and took the matter under advisement for briefing by the parties. On June 21, 1999, the court sustained Warford's motion to dismiss. We are not favored on appeal with the transcript of an oral motion or the text of a written motion stating the ground upon which it was claimed that res judicata or collateral estoppel barred Stine's claim.

The parties seem to agree that the sole basis for the motion was that Stine's claim was barred by res judicata arising from the circuit court judgment against this daughter-in-law, or, alternatively, that the circuit court judgment barred the claim by collateral estoppel because it was based on a finding that the daughter-in-law was 100 percent at fault in the accident. On appeal Warford claims that the motion to dismiss was also proper because the daughter-in-law was negligent per se. We cannot determine whether this theory was advanced to the trial court but Stine makes no objection to its assertion on appeal.

Stine claims on appeal that the trial court incorrectly found that his claim was barred as a result of the judgment against his daughter-in-law. He contends the court improperly applied the doctrine of res judicata and collateral estoppel. Before considering Stine's claim, however, we must first consider Warford's claim that the court's dismissal ruling was really a judgment on the merits because the court entered its judgment after reviewing the pleadings, evidence and arguments of attorneys and briefs.

The sole basis for Warford's contention is the language in the court's judgment, "[A]fter having heard the evidence." As indicated previously, we have not been favored with a transcript of the proceedings. The record on appeal does not, therefore, indicate what evidence the court heard, whether it heard all of the evidence on the merits, or whether it heard only evidence pertaining to the motion to dismiss. The clear language of the judgment, however, shows that the court is ruling on Warford's motion to dismiss. It is of no particular significance that the court's ruling on the motion to dismiss comes before, during or after the trial. We, therefore, will review the court's action in sustaining that motion.

Preliminarily, Stine contends that both res judicata and collateral estoppel are affirmative defenses that must be pled. Stine argues these defenses were waived because Warford filed no answer setting forth these affirmative defenses. Warford answers first that she was not required to file an answer asserting affirmative defenses based on RSMo. 517.031.2, which permits filing of affirmative defenses later than the return date of the summons only upon leave of court. Warford also argues that, because she was served with the summons only three (3) days before the return date, she could not be expected to file an answer by that date; further, she asserts that, since the judgment she obtained was not entered until November 1999, her affirmative defense did not even exist at the time her answer would have been due on the return date of November 18, 1996. Finally, she contends that the issues of res judicata and collateral estoppel were tried by consent of the parties.

Rule 41.01(d) states that Rule 41.01 through Rule 101 apply to civil actions pending in the associate circuit court "except where otherwise provided by law." Warford's first argument ignores the clear dictate of RSMo. 517.031(2) that "affirmative defenses shall be filed in writing not later than the return date." She counters, however, that she had insufficient time between the date of service and return date. Section 517.031(2) provides the court leave to allow filing at a later date. Rule 55.33 also permits amendment of an answer by leave of court. Even if the facts constituting the affirmative defense do not exist at the time of the return date, Rule 55.33 provides that leave to amend "shall be freely given when justice so requires." We reject Warford's argument that she was not subject generally to the rules requiring defenses to be filed in writing. Rule 55.08 specifically lists collateral estoppel and res judicata as defenses of avoidance that must be pled.

Warford argues that, nevertheless, the defense of res judicata can be asserted by "motion to dismiss."² She argues that, regardless of Rule 55.08, the practice of raising res judicata by a motion to dismiss is longstanding and approved of in Heins Implement Company v. Missouri Hwy. & Transp. Com'n, 859 S.W.2d 681, 685 (Mo. banc 1993). Warford misstates the analysis and holding in Heins. The court did acknowledge the similarities between res judicata, citing King General Contractor v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 498-99 (Mo. banc 1991), and the defense of failure to state a claim upon which relief can be granted; the latter defense is explicitly authorized to be raised by motion in Rule 55.27(a).³ The Heins court also acknowledged the holding in Johnson v. Raban, 702 S.W.2d 134, 135-36 (Mo. App. 1985) allowing the assertion of a claim preclusion defense after the time for an answer but well before trial. In Heins, however, the issue was first raised in the defendant's motion for judgment notwithstanding the verdict. Although here the issue was raised immediately before trial, we agree with the statement in Heins that neither King nor Raban permit the raising of the defense so late in the trial process.

. . . [a] defendant should not be able to hold preclusion in reserve as a 'stealth defense' long after the time for raising substantive defenses has passed. See Rule 55.27(f). Res judicata, as well as other affirmative defenses, must be pleaded in the answer, Rule 55.08; or raised by amendment to the pleadings, Rule 55.33; or presented by a timely motion filed in compliance with Rule 55.27(f) or otherwise.859 S.W.2d at 685. It was 20 months between the date of the judgment asserted as a defense and the beginning of trial in this case. Warford could have sought to assert the defenses long before the start of trial. The defenses were not, therefore, timely raised.⁴

We must address one further...