Civil Practice and Procedure

John S. Sandberg, Esquire

Third party plaintiffs do not need to plead fault to sustain a claim against third party defendant. Travelers Property Casualty Company of American and Jacobsmeyer-Mauldin Construction Company v. The Manitowoc Company, Inc. v. United States Steel Corporation, as Successor-in-Interest to Lonestar Technologies, Inc., a/k/a Lonestar Steel, No. 92429 (Mo. banc, January 29, 2013), Stith, J.           

The Supreme Court granted transfer after the appellate court issued its opinion. The issue on appeal in the Supreme Court was whether a defendant third-party plaintiff must admit its own fault in its third-party petition against an alleged joint tort-feasor. The Supreme Court reversed the appellate court and trial court and held that an admission of fault is not required in a third-party petition. It is sufficient for the third-party plaintiff to allege that it is entitled to relief in the event that it is found liable to the plaintiff.

Defendant must have actual knowledge of defect to support punitive damages. Susan Delacroix, et al. v. Doncasters, Inc., No. 97375 (Mo. App. E.D., January 15, 2013), Norton, J.

Doncasters appealed the judgment after jury verdicts awarded five sets of plaintiffs $4 million each for the wrongful death of their relatives arising out of the crash of an airplane during a skydiving expedition. Plaintiffs were also awarded $28 million in punitive damages. The trial judge granted the judgment notwithstanding the verdict as to the punitive damages which plaintiff appealed.

Held: Both decisions affirmed.
As to the appeal by Doncasters, amongst other issues was the issue of whether Doncasters was entitled to a reduction of the judgment because of settlements with tortfeasors. The trial court had refused to reduce the judgment, which was affirmed. Doncasters raised an affirmative defense that generally asked for any judgment against it to be reduced by settlements but the court noted that Doncasters failed to allege any facts regarding the settlements. Furthermore, Doncasters failed to prove the defense at trial. Nothing in the record showed the facts of the settlements, and it was too late to raise it in a post-trial motion. Accordingly, a defendant wanting a reduction of the judgment against it for a settlement by joint tortfeasors must present during trial either a stipulation as to the settlement or evidence of same.

The key issue on the cross-appeal about the punitive damages was whether the plaintiffs had proved by clear and convincing evidence that the defendant had actual knowledge of the alleged defect. The plaintiff produced several experts who opined that the defendant should have known of the defect based on the evidence. However, even if the defendant should have known of the defect, that evidence does not support an inference of actual knowledge based on the standard of clear and convincing evidence. The dissent brought out the testimony that the experts had opined that the defendant had actual knowledge of the defective condition based on the documents and records but the opinion majority held that this was insufficient to prove actual knowledge.

GAL's fee for drafting appellate briefs not authorized pursuant to § 452.423. Brown v. Brown, No. 98353 (Mo. App. E.D., December 26, 2012), Odenwald, J.

Father appealed from the trial court’s judgment in this dissolution action which included the issues of custody and child support. The guardian ad litem (GAL) asked the trial court to order the parents to pay her fees for drafting an appellate brief in connection with the father’s appeal. The trial court granted the motion. After the appeal, the trial court ordered the payment of the GAL fees. Father appealed the judgment about fees.

Held: Reversed.
The GAL was appointed under § 452.423. That section does not provide authority for the GAL to represent the interests of the children on appeal. They noted also the minor children are not parties to the divorce, custody proceedings, or the appeal. The court went on to note that § 453.025 and § 211.462 dealing with the termination of parental rights and adoption proceedings provide that the GAL’s work covers the appeal. The court had no authority to allow the GAL to participate in the appeal or require either party to pay her fees.