Stockman v. Safe-Skin

• Decision Date: 30 January 2001
• Citation: 36 S.W.3d 447
• Parties: (Mo.App. E.D. 2001) Dolores Stockman, et al., Respondents, v. Safe-Skin, Corp., et al., and John P. Frank, Personal Representative of the Estate of Decedent John Frank and Joseph Frank, et al., d/b/a The John Frank Partnership, Appellants. ED77942 0
• Court: Missouri Court of Appeals

36 S.W.3d 447 (Mo.App. E.D. 2001)

Dolores Stockman, et al., Respondents, v. Safe-Skin, Corp., et al., and John P. Frank, Personal Representative of the Estate of Decedent John Frank and Joseph Frank, et al., d/b/a The John Frank Partnership, Appellants.

ED77942

Missouri Court of Appeals Eastern District

01/30/2001

Appeal From: Circuit Court of the City of St. Louis, Hon. Joan M. Burger

Counsel for Appellant: Anthony R. Behr, Darren E. Daley and Daniel G. Tobben

Counsel for Respondent: James E. Hullverson, Jr., David A. Boresi and Omri E. Praiss

Opinion Summary: John P. Frank, personal representative of the estate of John Frank, and Joseph Frank (collectively Lawyer-Defendants) appeal summary judgment to Becker Glove International, Inc., The Burrows Co., Baxter Healthcare Corp., Becton Dickinson and Co., Colonial Healthcare Supply Co., K & C Medical Supply, Inc., and Medix, Inc., (collectively Corporate-Defendants) in a product liability action brought by Dolores and Gregory Stockman (collectively Plaintiffs). Lawyer-Defendants argue the court erred in granting summary judgment to Corporate-Defendants because a genuine issue of material fact exists as to whether Plaintiffs' suit was barred by the five-year statute of limitations in section 516.120, RSMo 1994.

Division Three holds: Lawyer-Defendants lack standing to appeal the judgment against Plaintiffs because they are neither aggrieved by nor bound by the judgment.

Lawrence G. Crahan, Judge

John P. Frank, personal representative of the estate of John Frank, and Joseph Frank (collectively "Lawyer-Defendants") appeal the judgment of the trial court granting summary judgment to Becker Glove International, Inc., The Burrows Co., Baxter Healthcare Corp., Becton Dickinson and Co., Colonial Healthcare Supply Co., K & C Medical Supply, Inc., and Medix, Inc., (collectively "Corporate-Defendants")¹ in a product liability action brought by Dolores and Gregory Stockman (collectively "Plaintiffs"). Lawyer-Defendants argue the trial court erred in granting summary judgment to Corporate-Defendants because a genuine issue of material fact exists as to whether Plaintiffs' suit was barred by the five-year statute of limitations, contained in section 516.120 RSMo 1994,² as determined by the court. We dismiss the appeal for lack of standing.

The essential facts are not in dispute. On January 23, 1998, Lawyer-Defendants³ filed a product liability lawsuit on behalf of Plaintiffs against Corporate-Defendants in the Circuit Court of the City of St. Louis. Plaintiffs' First Amended Petition alleged that Dolores Stockman, a respiratory therapist at St. John's Mercy Medical Center, developed a debilitating allergy to latex as a result of her workplace exposure to medical gloves manufactured by Corporate-Defendants. It alleged strict liability claims for failure to warn and product defect, as well as claims for negligence and loss of consortium.

In their answers to this petition, Corporate-Defendants asserted the five-year statute of limitations, section 516.120, as an affirmative defense. They contended that the statute of limitations had expired no later than January 3, 1998; twenty days prior to the filing of the First Amended Petition. Thereafter, Plaintiffs terminated their representation by Lawyer-Defendants and hired attorney James E. Hullverson, Jr. ("Hullverson") to represent them. Hullverson entered his appearance in the case and Lawyer-Defendants were granted leave to withdraw.

On July 10, 1998, Hullverson filed an Amended Third Party Petition realleging the original counts against Corporate-Defendants and asserting a third party legal malpractice claim against Lawyer-Defendants. This petition alleged that Lawyer-Defendants undertook to represent Plaintiffs against Corporate-Defendants but failed to file suit in a timely manner. It also stated that "the statute of limitations affirmative defense is apparently meritorious," and demanded that Lawyer-Defendants defend Plaintiffs with respect to the statute of limitations issue until determined by an order or judgment of the court. We find nothing in the record indicating any party objected to this arrangement. Thomas Plunkert, an attorney retained to represent Lawyer-Defendants, proceeded to defend Plaintiffs against the statute of limitations affirmative defense asserted by Corporate-Defendants.

The depositions of Dolores Stockman and her treating physician were taken. At the depositions, Hullverson repeatedly elicited information suggesting Plaintiffs' damages were both sustained and capable of ascertainment more than five years before suit was originally filed. Corporate-Defendants then filed a joint motion for summary judgment alleging once again that the statute of limitations had expired and attached portions of the depositions in support. After briefing and argument, the trial court granted summary judgment to Corporate-Defendants on Plaintiffs' product liability claims. Thereafter, Plunkert, on behalf of Plaintiffs, filed a motion to reconsider the judgment, or in the alternative, to designate the order final for purposes of appeal. Corporate-Defendants opposed the motion to reconsider arguing that Lawyer-Defendants lacked standing to challenge the trial court's judgment. Hullverson, on behalf of Plaintiffs, also objected to Lawyer-Defendants' motion to reconsider contending, inter alia, that:

2. Plaintiffs Stockman object to any representation by any lawyer or law firm other than Hullverson & Hullverson, Inc. because there is no contract of employment or attorney representation agreement between Plaintiffs and anyone representing the members of The Frank Partnership, and because such a continuing purported representation constitutes a conflict of interest. Plaintiffs' limited grant of permission for lawyers to defend against the latex manufacturers' prima facie defense of the second lawsuit filed on Plaintiffs' behalf by the Third Party Defendant Frank Law Firm and Lawyers was time barred having been filed late in violation of the statute of limitations violation [sic], expired when the Court granted summary for Latex Defendants based on their statute of limitations defense.

3. Plaintiffs object to any interlocutory appeal.

Plunkert was permitted to withdraw his representation of Lawyer-Defendants and consequently, representation of Plaintiffs on the statute of limitations issue. Thereafter, Lawyer-Defendants retained separate counsel, who each filed a motion to reconsider on his own behalf. Each also moved to dismiss Plaintiffs' legal malpractice claim contending it was premature and involved improper third party practice. After consideration, the trial court denied Lawyer-Defendants' motions to reconsider and designated the case final for purposes of appeal. Simultaneously, it dismissed Plaintiffs' legal malpractice claims in accordance with Lawyer-Defendants' requests.

Lawyer-Defendants each filed a notice of appeal to this court contending the trial court erred in granting summary judgment to Corporate-Defendants on Plaintiffs' product liability claims. In response, Corporate-Defendants filed a joint motion to dismiss the appeals contending Lawyer-Defendants lack standing to appeal the summary judgment issue. They also argued the trial court properly granted summary judgment in their favor. Plaintiffs have not appealed from the adverse ruling against them, but rather concur in Corporate-Defendants' assertions in their motion to dismiss and on appeal. This court consolidated Lawyer-Defendants' appeals on its own motion.

The right of appeal is purely statutory and belongs only to a party "aggrieved" by a judgment....