Opinion
No. ED95064
July 5, 2011
Appeal from the Circuit Court of Jefferson County Honorable M. Edward Williams.
Robert J. Wulff, St. Louis, MO, for appellant.
Christopher J. Doskocil, Fenton, MO, for plaintiff.
Robert W. Cockerham, St. Louis, MO, for respondent.
Before Gary M. Gaertner, Jr., P.J., Mary K. Hoff, J., and Patricia L. Cohen, J.
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b)
This memorandum is for the information of the parties only and sets forth the reasons for the order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
Introduction
Solid Rock Ministries appeals from the trial court's summary judgment in favor of third-party plaintiff Imperial Youth Association (IYA) on its claim for indemnity from Solid Rock. Solid Rock claims the trial court erred when it determined that Solid Rock and IYA entered an enforceable, oral indemnity agreement and ordered Solid Rock to pay IYA's attorneys' fees and costs. In response, IYA argues that, regardless of whether the parties entered an enforceable oral indemnity agreement, IYA is entitled to reimbursement of its attorneys' fees and costs under a theory of implied indemnity. We affirm.
Factual and Procedural Background
In 2004, Louis Gerleman, a member of Solid Rock and the leader of an unofficial group of young married church members, organized a softball tournament to raise money for Solid Rock. Gerleman sought permission from an IYA official to hold the tournament on ball fields leased by IYA. IYA allowed Solid Rock to use its fields on the condition that IYA would be the sole seller of concessions at the tournament. IYA also required Solid Rock to provide IYA with a certificate of insurance with the understanding that Solid Rock Ministries would be liable for any injuries or property damage that occurred during the softball tournament.
Solid Rock hosted its softball tournament at IYA's ball fields on October 9, 2004. At the tournament, Rex Rieger (Plaintiff) sustained injuries when he ran into an outfield fence. In a letter dated May 3, 2005, IYA informed Solid Rock and Solid Rock's insurer of Plaintiff's potential claim against IYA. On August 8, 2005, Plaintiff filed a personal injury action against IYA seeking damages for his injuries under a theory of premises liability, and on May 2, 2008, IYA filed its first amended third-party petition against Solid Rock for contribution, indemnity, and breach of an oral indemnity agreement.
Although not included in the record, it appears that Plaintiff later amended his petition to include causes of action against Solid Rock.
On April 30, 2008, IYA served Solid Rock with requests for admission. Solid Rock failed to timely respond, and the trial court deemed the requests admitted pursuant to Rule 59.01(a). Based on the admissions, the trial court concluded that "some type of indemnity agreement existed."
Rule 59.01(a) provides that a party admits the matters contained in a request for admissions by failing to respond to it. Solid Rock does not appeal the trial court's decision to deem admitted the matters submitted in IYA's requests for admissions.
On December 14, 2009, Plaintiff settled his claim against Solid Rock for $20,000 and dismissed his causes of action against IYA with prejudice. At a pre-trial conference on that date, the trial court held that, pursuant to the parties' valid indemnification agreement, Solid Rock was required to indemnify IYA. The trial court directed IYA to file a motion for summary judgment "regarding the issue as to whether the indemnity agreement between [IYA] and Solid Rock Ministries included costs and expenses, including but not limited to attorneys' fees."
The trial court held a hearing on IYA's motion for summary judgment, and IYA argued that its oral indemnification agreement with Solid Rock necessarily included costs and attorneys' fees. The trial court granted summary judgment in favor of IYA, finding that Solid Rock "is liable to IYA for attorney's fees and cost [sic] incurred pursuant to their indemnification agreement." At a hearing on June 9, 2010, the trial court determined that Solid Rock was liable to IYA for $83,226.14 in attorneys' fees and costs. Solid Rock appeals.
Solid Rock does not challenge the trial court's determination that an agreement to indemnify covers the attorneys' fees and costs an indemnitee incurs in defending a claim indemnified against. Missouri law is clear that, whether the right to indemnification arises under contract or is implied by law, the indemnitee has the right to recover attorney's fees reasonably incurred in the defense of a claim, provided the indemnitor has notice of the law suit and an opportunity to defend. Monsanto Co. v. Gould Electronics, Inc. 965 S.W.2d 314, 318 (Mo.App. E.D. 1998); see also Palmer v. Hobart Corp., 849 S.W.2d 135, 143-44 (Mo.App.E.D. 1993). Nor does Solid Rock challenge the trial court's calculation of attorneys' fees and costs. Rather, Solid Rock challenges the trial court's finding that the parties entered an enforceable oral indemnity agreement.
Standard of Review
The standard of review when considering an appeal from summary judgment is de novo. 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. Mo. Sup. Court Rule 74.04(c)(6). When reviewing a trial court's grant of summary judgment, we view the record in the light most favorable to the party against whom summary judgment was entered.ITT, 854 S.W.2d at 376. An order of summary judgment may be affirmed under any theory that is supported by the record.Renaissance Leasing, LLC v. Vermeer Mfg. Co. 322 S.W.3d 112, 120 (Mo. banc 2010).
Discussion
On appeal, Solid Rock challenges the trial court's finding that Solid Rock and IYA entered an enforceable oral indemnity agreement and claims that IYA's petition for indemnity and breach of contract failed to state a claim upon which relief may be granted. In response, IYA asserts, inter alia, that that we should uphold summary judgment in its favor because, "in addition to the contractual indemnity agreement, IYA is also entitled to indemnification from Solid Rock under the doctrine of implied indemnity." It is well-settled that summary judgment may be affirmed on any theory that is supported by the record.Purcell v. Cape Girardeau County Comm'n, 322 S.W.3d 522, 524 n. 4 (Mo. banc 2010).
Because we conclude that IYA is entitled to indemnification under the doctrine of implied indemnity, we do not address Solid Rock's points on appeal challenging the trial court's finding that IYA and Solid Rock entered an enforceable indemnity contract.
Missouri recognizes both contractual indemnity, in which parties agree that one party will protect the other party against liability or loss, and implied indemnity, also referred to as non-contractual or equitable indemnity. Beeler v. Martin, 306 S.W.3d 108, 110-11 (Mo.App.W.D. 2010). "The right to implied indemnity depends upon the principle that everyone is responsible for the consequences of his own wrong, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer they may recover from him." City of St. Joseph v. Kaw Valley Tunneling, Inc., 660 S.W.2d 26, 30 (Mo.App.W.D. 1983). Accordingly, "when a person, who without any fault on his part is exposed to liability and compelled to pay damages on account of the negligence of another, that person has a right of action against the active tortfeasor on the theory of an implied contract of indemnity." SSM Health Care St. Louis v. Radiologic Imaging Consultants, LLP, 128 S.W.3d 534, 540 (Mo.App.E.D. 2004),citing Campbell v. Preston, 379 S.W.2d 557, 559 (Mo. 1964). To prevail on a theory of implied indemnity, a plaintiff must show that: (1) the plaintiff discharged an obligation; (2) the obligation discharged by the plaintiff is identical to or co-extensive with an obligation owed by the defendant; and (3) if the defendant does not reimburse the plaintiff to the extent that the defendant's liability was discharged, the defendant will be unjustly enriched.Beeler, 306 S.W.3d at 111 (quotation omitted); see also State ex rel. Manchester Ins. Indem. Co. v. Moss, 522 S.W.2d 772, 774 (Mo. banc 1975).
IYA demonstrated its right to implied indemnity from Solid Rock through the pleadings, requests for admissions, and Gerleman's deposition. The following facts are undisputed: Solid Rock hosted a softball tournament on IYA's ball fields; Gerleman, acting with Solid Rock's permission and authority, planned the softball tournament and sought IYA's permission to use its fields; an IYA representative informed Gerleman that the ball fields were normally used by children and "were too small to be played on by adults"; Solid Rock provided IYA with a certificate of insurance "with the understanding Solid Rock Ministries would be liable for any injuries or property damage that occurred during" the softball tournament; IYA's ball fields were in a safe condition; and Plaintiff was injured while participating in the softball tournament. Additionally, Solid Rock admitted that Solid Rock, and not IYA, is liable to Plaintiff for his injuries.
Based on the facts as admitted by Solid Rock, IYA is entitled to implied indemnity. Without any fault of its own and as a result of Solid Rock's negligence and subsequent failure to defend against Plaintiff's claims, IYA was exposed to liability and compelled to incur the cost of defending Plaintiff's lawsuit. See,e.g., SSM Health Care, 128 S.W.3d at 540. The record establishes that IYA was not liable for Plaintiff's injuries. IYA was involved in Plaintiff's personal injury action, not because of any negligence on its part, but because of its relationship to Solid Rock, the actual wrongdoer. See, e.g., id. IYA timely gave Solid Rock notice of Plaintiff's claim and an opportunity to defend against it, but Solid Rock refused to defend Plaintiff's claims. See, e.g., Palmer v. Hobart Corp., 849 S.W.2d 135, 144 (Mo.App.E.D. 1993). As a result, IYA was forced to defend against Plaintiff's personal injury action.
Solid Rock also argues that the trial court erred in entering summary judgment in favor of IYA because IYA's "petition for indemnity and breach of contract fails to state a claim upon which relief may be granted." Solid Rock correctly asserts that the defense of failure to state a claim upon which relief may be granted can be raised on appeal. Mo. Sup. Court Rule 55.27(g)(2). "However, when a challenge to a pleading for failure to state a claim is brought for the first time on appeal, the pleading will be more liberally construed than if the challenge was made via a motion to dismiss."Lone Star Indus., Inc. v. Howell Trucking, Inc., 199 S.W.3d 900, 905 (Mo.App.E.D. 2006).
"A petition is sufficient if it invokes principles of substantive law which entitle the plaintiff to relief and informs the defendant of what the plaintiff will attempt to establish at trial."Empiregas, Inc. of Rolla v. Whitson, 902 S.W.2d 347, 348 (Mo.App.S.D. 1995). In Counts II and III of its petition, IYA pleaded that: a representative of Solid Rock requested IYA's permission to use its ball fields for a softball tournament; as a condition to using its fields, IYA required Solid Rock to provide a certificate of insurance; the certificate of insurance "purported to provide coverage for general liability . . . for injuries to players participating in the softball tournament"; and IYA was entitled to indemnity from Solid Rock for any injuries resulting from Solid Rock's negligence. We conclude that IYA's petition for indemnity and breach of contract is sufficient. Point denied.
Conclusion
The judgment of the trial court is affirmed.
ORDER
Solid Rock Ministries appeals from the trial court's summary judgment in favor of third-party plaintiff Imperial Youth Association (IYA) on its claim for indemnity from Solid Rock. Solid Rock claims the trial court erred when it determined that Solid Rock and IYA entered an enforceable, oral indemnity agreement and ordered Solid Rock to pay IYA's attorneys' fees and costs. In response, IYA argues that, regardless of whether the parties entered an enforceable oral indemnity agreement, IYA is entitled to reimbursement of its attorneys' fees and costs under a theory of implied indemnity.
We have reviewed the briefs of the parties and the record on appeal and find no error in any of the respects alleged. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. We have, however, provided a memorandum for the use of the parties only setting forth the reasons for our decision.
We affirm the judgment pursuant to Rule 84.16(b).