Wright v. Bartimus Frickleton Robertson & Gorny PC

Decision Date01 November 2011
Docket NumberNo. WD 72614.,WD 72614.
CourtMissouri Court of Appeals
PartiesChristopher A. WRIGHT, Respondent, v. BARTIMUS FRICKLETON ROBERTSON & GORNY PC, et al., Respondent; The Hershewe Law Firm, Appellant.

OPINION TEXT STARTS HERE

Application for Transfer Denied

Dec. 20, 2011.

Christopher Wright, Respondent Pro Se.

Susan Ford Robertson and J. Zachary Bickel, Kansas City, MO, for appellant The Hershewe Law Firm.

James P. Frickleton and Kip Robertson, Leawood, KS, for respondent Bartimus, Frickleton, Robertson & Gorney, P.C.

Before Division Two: THOMAS H. NEWTON, Presiding Judge, CYNTHIA L. MARTIN, Judge and GARY D. WITT, Judge.

CYNTHIA L. MARTIN, Judge.

The Hershewe Law Firm (“HLF”) appeals from the trial court's grant of summary judgment in favor of Bartimus, Frickleton, Robertson & Gorney (BFRG). The trial court ruled that a declaratory judgment action addressing an attorney's lien asserted by HLF was barred by the doctrine of res judicata because the validity and amount of HLF's lien had already been determined in the personal injury action where the lien arose. HLF contends that the trial court erred because HLF was not a party to the personal injury action, there is no identity of parties between the personal injury action and the declaratory judgment action, and the court in the personal injury action lacked personal jurisdiction over HLF. We reverse.

Factual and Procedural History

The factual and procedural history is not disputed in any material manner. On August 25, 2005, BFRG filed a personal injury action on behalf of Amber Marshall, a minor child (“the Marshall Case) in Jasper County against a Jasper County hospital and medical group. BFRG affiliated with Christopher Wright (Wright), then employed as an associate at HLF, to serve as co-counsel in the case. HLF appeared on the pleadings with BFRG. Wright worked on the Marshall Case until August 2007, when he left his employment with HLF.

On November 6, 2007, HLF wrote BFRG as follows:

I have not had an opportunity to look over Amber Marshall's case, but I would be honored to serve as local counsel. However, I am not in a position where I would want to be lead counsel or even second chair the case. If you and [Wright] decide it would be best for you to run with the case together, that is fine with me.

On December 18, 2007, BFRG wrote HLF and advised it had decided to affiliate with Wright as co-counsel, as was suggested in HLF's November 6, 2007 letter. BFRG also advised HLF it would cover the litigation expenses HLF had incurred to that point. Wright and BFRG then entered into a new fee sharing agreement as co-counsel on the Marshall Case. Wright made the necessary arrangements to secure HLF's Marshall Case file. HLF performed no further services in the Marshall Case.

In April 2009, the parties in the Marshall Case reached a settlement. Because Amber Marshall was a minor, the settlement required court approval pursuant to section 507.184.3.1 On May 15, 2009, HLF sent a letter to defense counsel asserting a lien for expenses of $56,716.88 and for reasonable attorney's fees in an unspecified amount. HLF's letter requested notification “of the date, time, and location of the settlement hearing so that this matter can be heard.” (Emphasis added.) HLF did not file its letter with the court in the Marshall Case.

With the consent of the defendants, BFRG dismissed the Marshall Case on file in Jasper County without prejudice on May 26, 2009, and re-filed the case in Jackson County on May 27, 2009.2 On May 27, 2009, BFRG also filed motions seeking approval of the confidential settlement reached in the Marshall Case and to determine the validity and amount of HLF's attorney's lien.

A hearing on BFRG's motion to approve the minor settlement was conducted on June 8, 2009, before the Honorable W. Stephen Nixon (the “Settlement Court). A hearing on BFRG's motion to determine the validity and amount of HLF's attorney's lien was scheduled for June 22, 2009, before the Settlement Court. On June 4, 2009, BFRG sent HLF a letter by federal express enclosing a copy of the motion to determine the validity and amount of the HLF lien, along with a notice setting the motion for hearing on June 22, 2009. HLF contemporaneously received BFRG's letter and these pleadings.

On the morning of the June 22, 2009 hearing, HLF sent the Settlement Court a letter by facsimile requesting that the issue of the validity of the HLF lien not be addressed because HLF was not a party in the Marshall Case and thus (according to HLF's assertion) could not call any witnesses, testify, present any evidence, or participate in discovery. HLF also complained about the dismissal of the Marshall Case and its subsequent re-filing in Jackson County. The Settlement Court proceeded with the scheduled hearing. HLF did not attend or otherwise participate in the hearing.

On June 23, 2009, the Settlement Court entered an order (June 23, 2009 Order”) finding that it had the authority to determine the validity of HLF's attorney's lien as an issue ancillary to approval of the settlement of the Marshall Case. The Order directed BFRG to pay HLF $56,716.88 for expenses and $5,250 as a quantum meruit award for the reasonable value of attorney's fees for services rendered by HLF prior to November 6, 2007. A copy of the June 23, 2009 Order was mailed to HLF by the Settlement Court.

BFRG thereafter paid, and HLF accepted, $56,716.88 for reimbursement of HLF's expenses. However, HLF rejected BFRG's tendered payment of $5,250 for HLF's attorney's fees. The Marshall Case was dismissed with prejudice on July 28, 2009. HLF did not appeal the Settlement Court's June 23, 2009 Order.

In the meantime, on June 2, 2009, Wright filed a petition seeking a declaratory judgment in Jackson County naming HLF and BFRG as defendants (the “Declaratory Judgment Action”). The Declaratory Judgment Action sought to determine the validity and amount of HLF's lien, the same relief being sought by BFRG's motion to determine the HLF lien filed in the Settlement Court. 3

Wright filed a second amended petition in the Declaratory Judgment Action in August 2009, following entry of the June 23, 2009 Order. In the second amended petition, Wright abandoned the request for a declaration about the validity and amount of the HLF lien and instead sought a declaration that the validity and amount of the HLF lien had been conclusively determined by the Settlement Court's June 23, 2009 Order.4 HLF filed an answer to the second amended petition, asserting as an affirmative defense that it was not bound by the June 23, 2009 Order because it was not a party to the Marshall Case, and because the Settlement Court thus lacked jurisdiction over HLF. HLF did not separately request a declaration as to the validity or amount of its attorney's lien.

In February 2010, BFRG filed a motion for summary judgment claiming the Declaratory Judgment Action was barred by res judicata because the validity and amount of HLF's lien had been conclusively determined by the Settlement Court. Wright conceded BFRG's motion for summary judgment. HLF opposed the motion on the basis that it was not a party to the Marshall Case and was thus not bound by the Settlement Court's June 23, 2009 Order.

The trial court granted BFRG's motion for summary judgment finding that the Declaratory Judgment Action was barred by the doctrine of res judicata. The trial court found that it would not “act as an ‘appellate’ court to either affirm or reverse” the Settlement Court's June 23, 2009 Order. The trial court concluded that HLF's recourse to contest the June 23, 2009 Order would have been to appeal from the Order, which HLF did not do.

HLF appeals.

Standard of Review

“The standard of review when considering an appeal from the grant of summary judgment is essentially de novo. Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 119 (Mo. banc 2010) (citing ITT Commercial Finance Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). “Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id. at 119–20 (citing Larabee v. Eichler, 271 S.W.3d 542, 545 (Mo. banc 2008); Rule 74.04(c)(6)). “The court accords the non-moving party the benefit of all reasonable inferences in the record.” Id. at 120 (citing ITT, 854 S.W.2d at 376). [The entry] of summary judgment may be affirmed under any theory that is supported by the record.” Id. (citing Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc 2010)).

Analysis

In its sole point on appeal, HLF claims that the trial court in the Declaratory Judgment Action erred in relying on the doctrine of res judicata to grant summary judgment in favor of BFRG.5

HLF claims that the trial court erroneously applied the doctrine of res judicata because HLF was not a party to the Marshall Case and because there was no identity of parties between the Marshall Case and the Declaratory Judgment Action. HLF relies on Spath v. Norris, which holds that the application of res judicata requires proof of four elements: (1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of the persons or parties to the action; and (4) identity of the quality or status of the person for or against whom the claim is made.’ 281 S.W.3d 346, 350 (Mo.App. W.D.2009) (citation omitted).

HLF has correctly identified the elements of res judicata when that term is used by Missouri courts in its more limited sense to refer only to claim preclusion which “operates as a bar to the reassertion of a cause of action which has previously been adjudicated in a proceeding between the same parties or those in privity with the parties.” State ex rel. Shea v. Bossola, 827 S.W.2d 722, 723 (Mo.App. E.D.1992). However, the trial court used the term res judicata in its equally applicable broader sense.

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