Ward v. Hentges

• Decision Date: 03 November 1992
• Docket Number: No. WD,WD
• Citation: 844 S.W.2d 471
• Parties: Donald E. WARD, et al., Appellants, v. Josepha R. HENTGES, Defendant, Farmers Insurance Co., Inc., Intervenor-Respondent. 46102.
• Court: Missouri Court of Appeals

Page 471

844 S.W.2d 471

Donald E. WARD, et al., Appellants, v. Josepha R. HENTGES, Defendant, Farmers Insurance Co., Inc., Intervenor-Respondent.

No. WD 46102.

Missouri Court of Appeals,

Western District.

Nov. 3, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Dec. 22, 1992.

Application to Transfer Denied Jan. 26, 1993.

Leonard K. Breon, Breon & Leffler, Warrensburg, for appellants.

Lance W. LeFevre, Heilbron & Powell, Kansas City, for respondent.

Before FENNER, P.J., and TURNAGE and KENNEDY, JJ.

TURNAGE, Judge.

Donald E. Ward brought suit against Josepha R. Hentges for personal injuries arising out of an automobile accident. Hentges filed a counterclaim for personal injuries and thereafter filed an offer of judgment in which she offered to allow judgment to be taken against her in the amount of $200,000.00 for Ward's injuries and $50,000.00 for his wife's consortium claim. The Wards accepted the offer and the court entered a purported judgment in favor of the Wards. Thereafter, Farmers Insurance Co. was allowed to intervene and on motion of Farmers the purported judgment was vacated. Ward has appealed and Farmers has filed a motion to dismiss the appeal. Appeal dismissed.

Ward filed suit against Hentges in May 1990. On December 10, 1990 Hentges filed an offer of judgment in which she offered to allow judgment to be taken against her in the amount of $200,000.00 for Ward's injury and $50,000.00 for his wife's consortium claim. ¹ Hentges stated that the offer did not dismiss her counterclaim and she expressly retained the right to continue the pursuit of her counterclaim against Ward. Ward accepted the offer on the day it was made and also on that same day the court entered what was denominated a judgment in which the court purported to enter judgment in favor of Ward and his wife against Hentges in the total amount of $250,000.00. Farmers had issued a policy of automobile insurance to Ward and became aware that Ward had sued Hentges and Hentges had filed a counterclaim against Ward. Farmers also became aware that Ward was going to make a claim against Farmers under his underinsured policy provision.

In December 1990 Farmers filed a motion to intervene in the lawsuit and in January 1991 the court granted that motion. In February 1991 Farmers learned of the purported judgment entered in favor of Ward against Hentges and moved to set the "judgment" aside. On March 11, 1991 the court set aside the "judgment" and Ward appealed to this court. That appeal was dismissed because the Hentges' counterclaim was still pending.

After the first appeal was dismissed, Hentges filed a dismissal of her counterclaim in the trial court with prejudice. Thereafter, Ward filed a second notice of appeal in this court from the action of the trial court in vacating the "judgment" entered in favor of the Wards against Hentges. Farmers has filed a motion to dismiss this appeal on the ground that there is no final judgment from which an appeal can be taken.

A final appealable judgment requires that all claims pending against all parties be finally disposed of. Plummer v. United Sav. & Loan Ass'n, 781 S.W.2d 827, 828[1, 2] (Mo.App.1989). The exception to this requirement is found in Rule 74.01(b). That rule provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Under Rule 74.01(b) there are two methods to obtain a final judgment. One is for the court to enter a judgment as to one or more but fewer than all of the claims or parties upon an express determination that there is no just reason for delay. If the court makes that determination, then a judgment entered pursuant thereto becomes final and appealable. If the court does not make that determination, a...