Rudisill v. Lewis

796 S.W.2d 124, 1990 Mo. App. LEXIS 1429, 1990 WL 138879
CourtMissouri Court of Appeals
DecidedSeptember 25, 1990
DocketWD 42519
StatusPublished
Cited by14 cases

This text of 796 S.W.2d 124 (Rudisill v. Lewis) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rudisill v. Lewis, 796 S.W.2d 124, 1990 Mo. App. LEXIS 1429, 1990 WL 138879 (Mo. Ct. App. 1990).

Opinion

GAITAN, Judge.

Plaintiffs-appellants, Luther W. and Mary Rudisill sought damages from defendants, Logston and Lewis. Prior to trial, the appellants executed a release as a result of negotiations with Logston. Respondent, Lewis, asserts this release also released him and moved for a summary judgment. The trial court granted summary judgment. We affirm.

On October 13, 1987, an accident occurred at the intersection of Barry Road and North Oak Trafficway in Kansas City, Missouri. As a result of this collision, plaintiffs Luther Rudisill and his wife, Mary Rudisill, filed suit against the defendants, Thomas Logston and Jeffrey Lewis. Logston and Lewis had no relationship with each other and were operating separate automobiles at the time of the accident.

Subsequent to the filing of plaintiffs’ petition, each plaintiff executed a release agreement with defendant Logston and his insurance carrier. In addition to releasing Logston and American Standard Insurance Company, the terms of the agreement purported to release “all other persons and organizations who are or might be liable, from all claims for all damages” sustained as a result of the accident. Further, the releases stated that plaintiffs “intend and agree that this release applies to all my claims arising from said accident, present and future....”

Before trial, each plaintiff executed a document entitled “Corrected Release” which materially altered the terms of the original releases. These “corrected” releases sought to reserve “all rights and *126 causes of action ... against any other person ... excepting only the persons herein released, ... all as provided to him under Section 537.060 RSMo.”

At trial, defendant Lewis moved for summary judgment claiming that the original release agreements were general in nature and served to fully satisfy all claims thus releasing all actual or potential tortfeasors from liability for damages resulting from the accident. The trial court granted defendant’s motion for summary judgment and dismissed plaintiffs’ cause of action with prejudice. It is from the grant of summary judgment that the plaintiffs appeal.

In reviewing the grant of summary judgment, the court will examine the record and the pleadings in the light most favorable to the non-moving party, giving them every benefit of the doubt. Lambing v. Southland Corp., 739 S.W.2d 717 (Mo. banc 1987). Summary judgment is only proper when the “pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 74.04(c). “Unassailable proof is no longer required.” Collins v. West-lake Hardware Co. of Macon, Inc., 783 S.W.2d 172, 172-73 (Mo.App.1990) (citing Hayes v. Hatfield, 758 S.W.2d 470, 472 (Mo.App.1988)). To survive summary judgment, however, the party asserting that a settlement is invalid has the burden of proof as to the invalidity of the agreement. Sheppard v. Traveler’s Protective Association of America, 233 Mo.App. 602, 124 S.W.2d 528, 530 (1939). In this case, appellants are asserting that the release agreements were invalid as to the respondent. Therefore, appellants must show some issue of material fact that the original releases were not effective as to the respondent if they are to be successful in this appeal.

It is important to note initially that the “Corrected Release” executed by the appellants is of no consequence to this appeal. By failing to assert the validity of the “corrected” releases in their point relied on or their argument, the appellants have abandoned any claim that the “Corrected Release” has legal force or effect in its own right which can be asserted against the respondent. See Black v. Cowan Const. Co., 738 S.W.2d 617, 619 (Mo.App.1987) (in applying Rule 84.04(d) which mandates that the point relied on contain the action or ruling of the court sought to be reviewed, the Court stated that violations of Rule 84.04(d) can cause abandonment of an argument on appeal); see also Cox v. Crider, 721 S.W.2d 220, 225 (Mo.App.1986), (holding that a failure to argue a point of error on appeal or produce supportive authority or state that there is no supporting authority acts as abandonment). Further, the original release executed by the plaintiffs was an effective general release, see Liberty v. J.A. Tobin Construction, 512 S.W.2d 886, 890 (Mo.App.1974); Clark v. Booth, 660 S.W.2d 316, 317-18 (Mo.App.1983), and thus makes subsequent “releases” nullities. Liberty v. J.A. Tobin Construction Co., Inc., 512 S.W.2d at 891-92; Swope v. General Motors Corp., 445 F.Supp. 1222, 1229 (W.D.Mo.1978). Finally, the “corrected” releases are inadmissible as evidence of the parties’ intent in the original releases because the plain language of the original releases manifests their intent and cannot be modified or varied by parol or extrinsic evidence. Ellis v. Reisenbichler, 712 S.W.2d 468, 469 (Mo.App.1986). Thus, the “corrected” releases signed by the appellants are not a relevant factor in evaluating the trial court’s grant of summary judgment.

The respondent sought, and was granted, summary judgment based on the original releases executed between the appellants and defendant Thomas Logston and American Standard Insurance Company. Both releases state:

FOR THE SOLE CONSIDERATION of Twenty five thousand and no/100 Dollars ($25,000.00) receipt of which I, acknowledge, I fully and forever release and discharge Thomas P. Logston and American Standard Insurance Company their heirs, administrators, executors, successors and assigns, and all other persons *127 and organizations who are or might be liable, from all claims for all damages which I sustained as the result of an accident which occurred on or about October 13, 1987, at or near the intersection of North Oak and Barry Road ... By executing this release, I intend and agree that this release applies to all of my claims arising from said accident, present and future, including, but not limited to, damage to or destruction of property; claims for known or unknown injuries, developments, consequences and permanency of those injuries; and there is no misunderstanding in this regard.

That this is a general release is clear. See Ellis, 712 S.W.2d at 469 (citing Liberty v. J.A. Tobin Const. Co., Inc., 512 S.W.2d 886 (Mo.App.1974); Clark v. Booth,

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Bluebook (online)
796 S.W.2d 124, 1990 Mo. App. LEXIS 1429, 1990 WL 138879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rudisill-v-lewis-moctapp-1990.