Eagle Star Group, Inc. v. Marcus
2010 Mo. App. LEXIS 1682
| Mo. Ct. App. | 2010Background
- Eagle Star was defaulted in a 2002 personal injury action after service defects alleged; a $369,000 judgment was entered against Eagle Star.
- Eagle Star hired Berkowitz Oliver to set aside the default; the motion was denied and McElroy later pursued collection efforts.
- Effertz and McElroy proposed a settlement plan against Eagle Star's insurance agencies, with McElroy to receive any recovery as satisfaction of her judgment.
- Second Addendum authorized Eagle Star to allow McElroy to file a legal malpractice claim in Eagle Star's name; McElroy agreed not to pursue the default judgment regardless of outcome.
- Larson filed the legal malpractice action in Eagle Star’s name alleging failure to raise a defective service return; Berkowitz Oliver defended on the theory the return could have been amended under Rule 54.22(a).
- Jury returned a verdict for Berkowitz Oliver; circuit court entered judgment consistent with the verdict; Eagle Star appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the circuit court erred in evidentiary rulings on amendment of the return of service | Eagle Star contends the court limited evidence on amendment and allowed argument that amendment would occur | Berkowitz Oliver argues the return could be amended under Rule 54.22(a) and the issue was properly treated as a court decision | No reversible error; amendment of return was permissible and court would have granted it |
| Whether the original Agreement to Retain Counsel was admissible against Eagle Star for damages | Eagle Star argues the original agreement was superseded and not relevant to damages | Berkowitz Oliver asserts the original agreement remains relevant to damages and admissible | Admissible; probative on damages and not unduly prejudicial |
| Whether admission of the original Agreement to Retain Counsel violated settlement-communication rules | Original agreement is a settlement-related document and should be excluded | Exception applies because it bears on damages and not directly to settlement efficacy | No error; not excluded as its relevance to damages outweighed prejudice |
Key Cases Cited
- Kirlin v. Daclo, Inc., 719 S.W.2d 516 (Mo. App. 1986) (service on corporate officer required; defective return may affect jurisdiction)
- Bauch v. Weber Flour Mills Co., 238 S.W. 581 (Mo. App. 1922) (returns may be amended to conform to facts)
- Gershman Inv. Corp. v. Danforth, 517 S.W.2d 33 (Mo. banc 1974) (law is for court to declare and apply; jury decides facts)
- Adams By and Through Adams v. Children's Mercy Hosp., 832 S.W.2d 898 (Mo. banc 1992) (law and facts division; issues for court vs. jury)
- Giddens v. Kansas City S. Ry. Co., 937 S.W.2d 300 (Mo. App. 1996) (closing arguments; wide latitude for evidence and inferences)
- Gomez v. Constr. Design, Inc., 126 S.W.3d 366 (Mo. banc 2004) (timely objections required for appellate review; court may rely on legal standards)
- Oldaker v. Peters, 817 S.W.2d 245 (Mo. banc 1991) (standard for admissibility and relevance of evidence)
- O'Neal v. Pipes Enters., Inc., 930 S.W.2d 416 (Mo. App. 1995) (settlement evidence generally inadmissible; exceptions noted)