Jerry and Kimberly Norman, Individually and as Husband and Wife, and Jerry Norman, as Plaintiff Ad Litem for Kenneth Norman, a deceased minor, Plaintiffs/Appellants v. Andy J. Wright, M.D., Defendant/Respondent

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: Jerry and Kimberly Norman, Individually and as Husband and Wife, and Jerry Norman, as Plaintiff Ad Litem for Kenneth Norman, a deceased minor, Plaintiffs/Appellants v. Andy J. Wright, M.D., Defendant/Respondent Case Number: 25818 Handdown Date: 05/26/2004 Appeal From: Circuit Court of Greene County, Hon. J. Miles Sweeney, Counsel for Appellant: David W. Ransin Counsel for Respondent: Bruce E. Hunt, Glenn A. Burkart, Joel A. Block Opinion Summary: None Citation: Opinion Author: John E. Parrish, Judge Opinion Vote: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS. Shrum, J., and Rahmeyer, C.J., concur Opinion: Kimberly Norman and Jerry Norman (plaintiffs) appeal the trial court's reduction of damages against Andy J. Wright, M.D., (defendant) in an action they brought for wrongful death of their son. The child died from brain damage suffered during birth. The trial court reduced a $308,855.35 verdict for plaintiffs by the amount of a $100,000 settlement plaintiffs previously reached with other defendants. This court affirms in part, reverses in part, and remands with directions. The facts on which this case was brought are set forth in Norman v. Wright, 100 S.W.3d 783 (Mo. banc 2003) (Norman I ). Norman I is a previous appeal of this case. A week following the jury trial in this case, defendant requested the trial court to reduce the verdict by the amount of the pre-trial settlement that had been reached with the other defendants. Defendant relied on Section 537.060 (FN1) as the basis for his request. It provides, as applicable here: Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and

all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the agreement so provide; however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater. . . . The issue appealed in Norman I was whether the trial court erroneously declared the law in ruling that defendant was entitled to have the verdict reduced by the amount of the prior settlement "as a matter of law pursuant to Sec. 537.060 R.S.Mo." 100 S.W.3d at 785. Plaintiffs asserted in Norman I that defendant's motion to reduce the verdict was untimely because he did not plead the reduction as an affirmative defense. Id. at 785. The court held that the right to reduce plaintiffs' claim by the amount of the earlier settlement was required to be pleaded as an affirmative defense; that defendant did not plead that right. The court concluded, "The trial court should not have reduced the judgment, because [defendant] failed to plead and prove the affirmative defense of reduction under section 537.060." Id. at 786. Norman I reversed the judgment and remanded the case. Following remand, defendant moved to file an amended answer to include the affirmative defense of reduction in the amount of the pre-trial settlement pursuant to Section 537.060. Leave was granted and an amended answer filed. The amended answer stated as an affirmative defense: In accordance with Section 537.060 R.S.Mo. defendant requests that he receive a reduction/credit/offset in the amount of $100,000 against any award of damages by the trier of fact in accordance with the settlement between plaintiffs and former defendants St John's Regional Health Center and Joseph C. Johnson, Jr., M.D. The trial court thereafter entered judgment that found defendant "pleaded in [his amended answer] his rights in accordance with Section 537.060, R.S.Mo., to receive a reduction/credit/offset in the amount of $100,000.00 . . . representing the amount of the settlement between plaintiffs and former Defendants St. John's Regional Health Center and Joseph C. Johnson, Jr., M.D." The trial court judicially noticed that settlement had been reached as asserted by defendant. Judgment was rendered as follows: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED: The amount of the verdict is reduced by the sum of $100,000.00, representing the amount of the aforesaid court- approved wrongful death settlement, defendant having pleaded and proved his rights to receive a reduction/credit/offset of said funds in accordance with Section 537.060, R.S.Mo. Accordingly, a full and final judgment is hereby entered in favor of

[plaintiffs] and against [defendant] in the sum of $208,855.35, plus all taxable court costs are assessed against [defendant] in the total amount of $12,963.21 for a total judgment of $221,818.56, which shall accrue lawful post-judgment interest at the rate of nine (9) percentum [sic] per annum until satisfied. Plaintiffs present three points on appeal. Each asserts different reasons why plaintiffs contend the trial court erred in allowing defendant to amend his pleadings after the decision rendered in Norman I. The first asserts the trial court erred in that it failed to balance and weigh factors relative to the effect of the amendment on the respective parties. The second claims error because the action the trial court took occurred after the trial was complete and the jury discharged; that a request to amend pleadings to assert an affirmative defense of partial satisfaction pursuant to Section 537.060 made prior to Norman I was not pursued by defendant in the first appeal and was, therefore, not preserved for further review. The third contends defendant's exclusive remedy for apportionment as a "health care provider" was that permitted by Section 538.230; that he cannot now seek relief under Section 537.060. This court finds Point II determinative. Norman I observed that the trial court denied a post-trial motion by defendant for leave to amend his pleadings to include a request for a reduction under Section 537.060. 100 S.W.3d at 786 n.2. Defendant acknowledged this in his respondent's brief filed in this appeal. Plaintiffs' Point II includes the contention that defendant could have asserted the trial court's ruling as error in the proceedings before the court in Norman I ; that defendant's failure to do so denied him the right to seek the same relief following remand to the trial court. Defendant's response to Point II is two-fold. Defendant first contends plaintiffs' appellants' brief "does not support their point relied on" ;; that it is "not supported by argument in the argument portion of the brief." Defendant suggests, for that reason, it presents nothing for appellate review. The argument section of plaintiffs' appellants' brief includes statements directed to the defendant's lateness in asserting that the trial court's denial of his request to amend his answer to assert Section 537.060 as a defense was error. Plaintiffs' brief suggests defendant's failure to assert the need to plead the statute "was either unknown or overlooked in his various pleadings during all the years preceding trial, nor in the more than two years during the appeals process." Plaintiffs' brief argues that nothing in Section 537.060 makes the rights it gives a litigant self-enforcing. Arguably, these arguments support the claim of error plaintiffs raise in Point II. Regardless, appellate courts prefer not to base a decision in a case on faulty briefing procedures so long as the perceived shortcoming does not otherwise impede disposition of the case. Twelve Oaks Motor Inn, Inc. v. Strahan, 110 S.W.3d 404, 407 n.3 (Mo.App. 2003); Daniel v. Indiana Mills & Mfg., Inc., 103 S.W.3d 302, 312 (Mo.App. 2003); Keeney v. Missouri Highway and Transp. Com'n, 70 S.W.3d 597, 598 n.1 (Mo.App. 2002). The issue of whether defendant's

failure to address the trial court's denial of his request to amend his answer to assert the rights provided by Section 537.060 in the first appeal of this case is sufficiently identified in plaintiffs' brief to afford notice to this court and to defendant of the issue raised. The second part of defendant's response to plaintiffs' claim is that defendant was not entitled to appeal the trial court's denial of his first request to amend his answer prior to the appeal in Norman I because the trial court granted his request for offset without amendment of defendant's pleadings; thus, he was not an aggrieved party. Defendant's argument fails to recognize that respondents may take cross-appeals seeking alternative relief in the event an appellant prevails. Nusbaum v. City of Kansas City, 100 S.W.3d 101, 102 (Mo. banc 2003) ("Dunn provisionally cross- appeals . . ."); Sanders v. Hartville Milling Co., 14 S.W.3d 188, 215 (Mo.App. 2000) ("Plaintiffs' appeal, however, is pursued only if this court did not 'uphold the judgment based on the jury verdict.'"); Shady Valley Park & Pool v. Weber, Inc., 913 S.W.2d 28, 37 (Mo.App. 1995) (involved a "cross appeal regarding an alternate theory of recovery based upon breach of a third party beneficiary contract.") "A former adjudication is the law of the case as to all questions directly raised and passed upon and on matters that arose before the first appeal that might have been raised but were not." M & H Enterprises v. Tri-State Delta Chemicals, Inc., 35 S.W.3d 899, 905 (Mo.App. 2001). The trial court denied defendant's motion to amend his pleadings to assert an affirmative defense on the basis of Section 537.060 prior to the first appeal in this case. Defendant could have raised the trial court's adverse ruling in that appeal. He did not. The ruling is deemed correct as the law of the case. Point II is granted in that defendant may not now raise an issue on appeal that could have been raised previously but was not.(FN2) The trial court's reduction of damages by the amount of the prior settlement is reversed. All other aspects of the judgment are affirmed. The case is remanded with directions that the trial court enter judgment consistent with this opinion.

Footnotes: FN1. References to statutes are to RSMo 2000. FN2. Here, as in Norman I, this opinion does not address how late a trial court may permit amendment of pleadings in order to request reduction of damages under Section 537.060. 100 S.W.3d at 786 n.2. Separate Opinion: None

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.