Woods ex rel. Woods v. Cory

• Decision Date: 10 March 2006
• Docket Number: No. 27247.,27247.
• Citation: 192 S.W.3d 450
• Parties: Christopher S. WOODS, By His Next Friend Lena WOODS, Lena Woods, Anne Dunnegan and Larry Woods, Plaintiffs-Respondents, v. Jason R. CORY, as Personal Representative of the Estate of Ronald Murray Cory, Defendant, and U.S. Foodservice, Defendant-Appellant.
• Court: Missouri Court of Appeals

192 S.W.3d 450

Christopher S. WOODS, By His Next Friend Lena WOODS, Lena Woods, Anne Dunnegan and Larry Woods, Plaintiffs-Respondents, v. Jason R. CORY, as Personal Representative of the Estate of Ronald Murray Cory, Defendant, and U.S. Foodservice, Defendant-Appellant.

No. 27247.

Missouri Court of Appeals, Southern District, Division One.

March 10, 2006.

Rehearing Denied March 31, 2006.

Lawrence B. Wittels, Law Office of Lawrence B. Wittels, St. Louis, MO, for Appellant.

Elizabeth A. Blaich, Edmundson, Edmundson & Innes, Poplar Bluff, MO, for Respondents.

GARY W. LYNCH, Judge.

Appellant U.S. Foodservice (Defendant) appeals the judgment of the Circuit Court of Howell County enforcing a settlement agreement between it and Christopher S. Woods, by his Next Friend Lena Woods, and Lena Woods, Ann Dunnegan, and Larry Woods (referred to collectively as Plaintiffs). We affirm.

1) Factual and Procedural Background

Defendant's first appeal in this case was dismissed. Woods v. Cory, 149 S.W.3d 912 (Mo.App.2004) (Woods I). We borrow freely from the recitation of the facts in that opinion without further citation.

The genesis of this appeal is an automobile accident involving a vehicle driven by Ronald Murray Cory (Cory) and one driven by Opal Woods in which Christopher S. Woods (Christopher) was a passenger. The accident occurred on Highway 60 in Carter County, Missouri on February 15, 2001. Opal Woods and Cory died as a result of injuries sustained in the accident, and Christopher suffered serious injuries. Christopher, by his Next Friend Lena Woods, filed suit against Jason R. Cory, the Personal Representative of the Estate of Cory (Personal Representative), and Defendant, as Cory's employer, for the alleged negligence of Cory in causing the accident. Lena Woods, Ann Dunnegan, and Larry Woods (Wrongful Death Plaintiffs), the surviving children of Opal Woods, also filed suit pursuant to § 537.080.1(1) against the same parties, for the wrongful death of Opal Woods.¹ Both petitions alleged that Cory was acting within the scope of his employment with Defendant at the time of the accident. The two cases were consolidated, and the venue was ordered transferred to Howell County by the trial court on September 27, 2001.

Defendant eventually moved for a summary judgment in the consolidated cases, contending that there was no genuine issue of fact concerning whether Cory was acting in the scope of his employment with Defendant and that it was entitled to a judgment as a matter of law. On February 18, 2003, all parties and their attorneys appeared before the trial court for the purpose of argument on Defendant's Motion for Summary Judgment and also participated in a settlement conference. The court granted the parties additional time to submit supplemental material to be considered in the motion for summary judgment and to attempt to settle all outstanding matters. The court ordered that in the event the case was not settled within fifteen days [by March 5, 2003], the Court would thereafter rule on the pending motion for summary judgment.

Three days later, Plaintiffs' attorney faxed to Defendant's attorney a letter, asking for a settlement offer from Defendant. Four days after that, on February 25, 2003, a letter from Defendant's attorney was faxed to and received by Plaintiffs' attorney containing the following settlement offer (Offer):

I have just spoken with Mr. Astrachan's superiors at U.S. Foodservice. I have only been authorized to offer $35,000.00 to settle all cases and claims. This is the top dollar I have. I am not holding back on any amounts, nor do I feel that USF will authorize more at this point. If this will get it done let me know. The Company has taken the position that they are willing to take the exposure at this point in time.

This letter contained no time limit for acceptance of the Offer. The next day, Plaintiffs' attorney mailed a copy of the Offer to his clients who reside in Missouri, Tennessee and Arkansas.

On February 28, 2003, unknown to the parties or their attorneys, the trial court prematurely entered an order in favor of Defendant denominated as "Judgment on Issue of Summary Judgment Motion of Defendant Company U.S. Food Service, A Corporation." This order contained the following language: "The Court therefore sustains Defendant company's Motion for Summary Judgment, and dismisses as to them. This instrument being a final judgment." Plaintiffs' attorney and Defendant's attorney each received a copy of this order on March 3, 2003.

During the morning of March 12, 2003, at approximately 10:55 a.m., Plaintiffs' attorney faxed a letter to Defendant's attorney that was received by him in his office. This letter (Acceptance) stated: "We accept the offer of U.S. Foods to settle all matters connected with these cases for $17,500.00 to each case." That afternoon, at approximately 4:13 p.m., Defendant's counsel faxed a letter to Plaintiffs' attorney's office stating: "U.S. Foodservice is no longer interested in discussing settlement of this case."

On March 18, 2003, Plaintiffs filed a "Motion to Set Aside or Withdraw Order Granting Summary Judgment and to Enforce Settlement." Fifty-seven days later, on May 14, 2003, the trial court entered an "Order" setting "aside its judgment dated February 28, 2003, granting summary judgment to Defendant U.S. Food Service Corporation."

The Wrongful Death Plaintiffs dismissed their wrongful death claim against Personal Representative on July 1, 2003. Christopher dismissed his personal injury claim against Personal Representative on August 22, 2003.

Plaintiffs' attorney and Defendant's attorney filed with the court on January 30, 2004, their Joint Stipulation of Facts and Affidavit for Consideration in Plaintiffs' Motion to Enforce Settlement (Joint Stipulation). The Joint Stipulation consists of fourteen paragraphs of undisputed facts and two paragraphs, numbered 11 and 15, of testimony. Paragraph 11 provides: "Defendant's counsel states that on March 10, 2003, a letter was mailed from his office in St. Louis to Plaintiffs' counsel stating that Defendant no longer was interested in discussing settlement of this matter." A copy of the letter was attached as an exhibit and made a part of the Joint Stipulation. Paragraph 15 provides: "Plaintiffs' counsel states that other than the fax copy received on the afternoon of March 12, as set out herein above, the March 10 letter from Defendant's counsel has never been received by him or his office." The Joint Stipulation is the only evidence offered to or relied upon by the trial court in deciding Plaintiffs' motion to enforce settlement agreement.

Four days later, the trial court, by "Order" noting that "[t]he Court has reviewed and has in hand the stipulation of facts which counsel has provided for the submission of the issues herein," entered an order enforcing the settlement agreement. This order was followed on March 15, 2004 with another order designated as "Amended Judgment" granting Plaintiffs' judgment against Defendant in the amount of $35,000.00.

The "Amended Judgment" enforcing the settlement agreement was the basis of Defendant's appeal in Woods I. This court dismissed the appeal for lack of jurisdiction, holding that this order was not a final judgment as to the wrongful death claim because the trial court failed to apportion the judgment among Wrongful Death Plaintiffs, as required by § 537.095.3, and was not a final judgment as to the personal injury claim because the trial court failed to make an express determination that there was "no just reason for delay," as required by Rule 74.01(b) where multiple claims are pending. Woods I at 914-15.

Following the dismissal of the appeal in Woods I, the trial court, on August 12, 2005, entered an order denominated as "Second Amended Judgment" enforcing the settlement agreement; entering judgment against Defendant in the amount of $35,000.00; apportioning that judgment amount equally between the personal injury claim and the wrongful death claim; and further apportioning the wrongful death amount among the Wrongful Death Plaintiffs. Defendant appeals this order.²

2) Jurisdictional Issue

Neither party has directly challenged whether the order denominated as the "Second Amended Judgment" is a final judgment for purpose of conferring appellate jurisdiction upon this court. See § 512.020 and MacMillan v. MacMillan, 960 S.W.2d 518, 519 (Mo.App.1998). However, Defendant, in its first point relied on, contends that the order entered by the trial court on February 28, 2003 became a final judgment thirty days after its entry and that the trial court thereafter lost jurisdiction to enter an order setting it aside.³ If this contention is correct, then the trial court also would not have jurisdiction to enter any other order after that date, including the "Second Amended Judgment" which is the basis for this appeal. "We are required to consider, sua sponte, whether the prerequisite of an appealable final judgment has been met." Woods I, 149 S.W.3d at 914 (citing American Standard Ins. Co. of Wisconsin v. Bittick, 112 S.W.3d 55, 56 (Mo.App.2003)).

a) Order Entered on February 28, 2003 is Not a Final Judgment

On February 28, 2003, Christopher was pursuing a personal injury claim against Defendant and a personal claim against Personal Representative. At the same time, Wrongful Death Plaintiffs were pursuing a wrongful death claim against Defendant and a wrongful death claim against Personal Representative. Thus, the case was in the posture of having multiple claims involving multiple parties. The order entered by the trial court on that date disposed of Christopher's personal injury claim against Defendant and Wrongful Death Plaintiffs' claim for wrongful death against Defendant. However, Christopher's personal injury claim against Personal Representative and Wrongful Death Plaintiff's claim for wrongful death against Personal Representative remained...