Opinion
No. ED75983.
FILED: March 14, 2000.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, HON. ROBERT H. DIERKER, JR., JUDGE.
Richard W. Fischer, Mary Margaret Creamer, Fischer, Creamer Ahlquist, 7751 Carondelet Ave., Suite 600, Clayton, MO 63105, for appellant.
Larry D. Hale, Andrew T. Pickens, IV, The Hale Law Firm, 1221 Locust Street, Suite 310, St. Louis, MO 63103-2364, for respondent.
Elizabeth Eisenberg, appellant, appeals a grant of summary judgment in favor of Barnett M. McKee and Brad Goss, respondents, on her claim for professional negligence. For a review of the facts giving rise to her claim, see Estate of Strick, 934 S.W.2d 312 (Mo.App.E.D. 1996).
In her only point on appeal, appellant contends the trial court erred in granting summary judgment in that: (A) the Agreement and Mutual Release did not release any actions which accrued after June 15, 1994 and her cause of action accrued after that date; (B) Goss was not released because he was not associated with the law firm of Husch and Eppenberger at the time the release was signed and was not named in the release; and (C) McKee was not released because he was neither an employee nor a partner of Husch and Eppenberger, but was "Of Counsel," was not named in the release and did not have the authority to bind Husch and Eppenberger. We affirm.
Appellate review of the grant of summary judgment is de novo.ITT Commercial Finance Corp., et al. v. Mid-America Marine Supply, 854 S.W.2d 371, 376 (Mo.banc 1993). The record is viewed in the light most favorable to the non-moving party, according that party all reasonable inferences that may be drawn from the record. Id. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true, unless contradicted by the non-moving party's response to the summary judgment motion. Id. at 376.
Summary judgment will be upheld on appeal if the movant is entitled to judgment as a matter of law and no genuine issues of material fact exist. Id. at 377. A defending party may establish a right to judgment as a matter of law by showing that there is no genuine dispute as to the existence of each of the facts necessary to support the defendant's properly pleaded affirmative defense. Id. at 380.
The record reveals that respondents were, at all relevant times, attorneys licensed in Missouri. It is not disputed by the record and the briefs that Husch and Eppenberger (Husch) was a partnership, that McKee was "Of Counsel" to the law firm and that Goss was a partner in the firm until April 15, 1994. Appellant retained Husch to represent her in reviewing "[her] interest in trusts established by [her] father." Pursuant to a letter of engagement, Husch represented appellant during part of 1992, 1993, and 1994, concluding its representation on February 22, 1994.
For its legal services, Husch sent appellant a bill for fifteen thousand, six hundred seventy-two dollars and seven cents ($15,672.07). Appellant disputed the bill, contending it was excessive. To resolve the dispute, Husch and appellant entered into an Agreement and Mutual Release (Release) on June 15, 1994, which provided in pertinent part:
1. [Appellant] shall forthwith pay to [Husch] the sum of $12,000.00 as full and final payment of any and all amounts due from her with respect to work performed by [Husch] concerning the Florence Strick estate as well as any other matters on which [Husch] may have represented [appellant] up to the date of this Agreement and Mutual Release.
2. The Law Firm and Elizabeth Eisenberg hereby fully and forever release, acquit, and discharge the other and all of the other's successors and assigns from any and all actions, causes of action, claims and demands of whatsoever nature or kind arising out of any rights accruing to either of the parties hereto by virtue of the law firm's representation of Elizabeth Eisenberg at any time prior to the date of this Agreement.
Appellant's counsel from another law firm drafted the Release.
On February 20, 1998, appellant filed a petition against respondents, alleging that respondents were negligent in failing to: (1) obtain a copy of the codicil prior to advising her to sign the affidavit; (2) advise her to return the jewelry; (3) obtain written assurances from Charles Redd that the failure to return the jewelry would not disinherit her; (4) change the affidavit to take out any reference to any items other than documents; and (5) inform Charles Redd that she had the jewelry.
Respondents filed a Motion for Summary Judgment and Memorandum in support of the motion including supporting affidavits, the Release and the letter of engagement between Husch and appellant, which were signed by McKee and appellant. In their motion, respondents contend that the Release released appellant's cause of action against them. McKee's affidavit averred that he was "Of Counsel" at Husch and that he executed the Release "on behalf of the law firm." The affidavit of Joseph P. Conran, a partner of Husch, affirmed that Goss was a partner of the law firm from January 1, 1991 to April 15, 1994. The letter of engagement dated January 1993 was drafted on Husch letterhead and was signed by appellant and by McKee on behalf of Husch. The letter of engagement provided that the work would be supervised by a partner but may be assigned to an attorney with the experience level to competently accomplish the work. Further, the letter of engagement provided the billing rate for partners, associates and legal assistants. Appellant filed a response and memorandum in opposition to the motion without any supporting affidavits or documents, arguing that there were undetermined questions of law regarding when her cause of action accrued, but did not raise an issue as to any material fact. Respondents then filed a reply to appellant's memorandum, and appellant countered by filing a response to respondents' reply. Last, respondents filed a supplemental reply to appellant's response. After a hearing on respondents' motion, the trial court granted summary judgment in favor of respondents.
In part A of her point on appeal, appellant contends that the trial court erred in granting summary judgment because the Release did not release any actions that accrued after June 15, 1994 and hers accrued after that date. Essentially, the dispute over the release revolves around the interpretation of the language "at any time prior to the date of this agreement" and "arising out of any rights accruing to either of the parties hereto." Appellant argues that the former phrase modifies the latter and therefore, the release only encompasses claims that accrued prior to June 15, 1994, the date of the Release. She further argues that her claim did not fully accrue prior to the date of the Release because her damages were not ascertainable until October 8, 1996, the date of the hand down of the opinion in Estate of Strick. Respondents reject this contention and argue that the Release releases all claims arising from Husch's representation of appellant, whether or not they fully accrued prior to the date of the release.
The interpretation of a release or settlement agreement is governed by the same principles applicable to any other contractual agreement, and the primary rule of construction is that the intention of the parties shall govern. Andes v. Albano, 853 S.W.2d 936, 941 (Mo.banc 1993). Any question regarding the scope and extent of the release is to be resolved according to what may fairly be said to have been within the contemplation of the parties at the time the release was given.Id. This, in turn, is to be resolved in light of all the surrounding facts and circumstances under which the parties acted. Id. Further, language that is plain and unambiguous on its face will be given full effect within the context of the agreement as a whole unless the release is based on fraud, accident, misrepresentation, mistake, or unfair dealings. Id.
Appellant relies on Delp v. Doe, 895 S.W.2d 91 (Mo.App.E.D. 1995) and Wallace v. Helbig, 963 S.W.2d 360 (Mo.App.E.D. 1998) for her contention that her claim did not accrue until her damages were ascertainable on October 8, 1996. However, Delp and Wallace are distinguishable. In those cases, it was important to determine when the claim accrued for the purpose of determining "when the damage resulting therefrom [wrong is done or breach of contract or duty occurs] is sustained and capable of ascertainment" pursuant to section 516.100 RSMo 1994 (all further references shall be to RSMo 1994 unless otherwise noted). Here, the question is not when the statute of limitations began to run, but when the wrong was done or the breach of contract or duty occurred and appellant's claim arose and whether the parties intended to release the claim.
Despite appellant's contention that the phrase "at any time prior to the date of the agreement" modifies the phrase "arising out of any rights accruing to either of the parties hereto," it is clear that "at any time prior to the date of this agreement" specifically modifies "representation," which is part of the preceding phrase "of the law firm's representation of appellant." Also, the phrase "accruing to either of the parties hereto" clearly modifies the word "rights," which is part of the phrase "arising out of any rights." Further, paragraph A of the Release states that "[Husch] has represented [appellant] . . . during part of 1992, 1993 and part of 1994. This representation ended on or about February 22, 1994." Paragraph one states that appellant shall pay Husch $12,000.00 for amounts due from her "with respect to work performed by [Husch] . . . up to the date of this Agreement and Mutual Release." In this context, it is evident that the parties framed the Release within the period of time that Husch represented appellant and intended to release those claims "arising" from that representation, regardless of when the claim fully accrued. Moreover, while appellant's claim may not have accrued for statute of limitations purposes until October 8, 1996, the record clearly reveals that it arose prior to the date of the Release, when the alleged negligence occurred and, therefore, falls within the purview of the Release.
In part B of her point, appellant contends that the trial court erred in granting summary judgment because Goss was not a partner of Husch at the time the Release was signed and was not named in the Release and therefore was not released. As a result, she contends that Goss remains liable pursuant to section 537.060, which essentially provides that the release of one joint tort-feasor does not release other joint tort-feasors unless the terms of the release so provides.
It is not disputed that Goss was partner of Husch until April 15, 1994. Pursuant to Section 358.090 and 358.150 partners are jointly and severally liable. Further, a law firm is not a legal entity separate from the individual partners. Kelley v. DeKalb Energy Co., 865 S.W.2d 670, 671 (Mo.banc 1993). Moreover, an action cannot be brought against a partnership in the firm name, but rather must be brought against the individual partners.Terre Du Lac Ass'n, Inc. v. Terre Du Lac, Inc., 737 S.W.2d 206, 217 (Mo.App.E.D. 1987). Therefore, a release of the "law firm," a partnership, necessarily releases the partners. In her brief appellant concedes that "she released any claims to [Husch] and any partners to [Husch] regarding the monetary obligations between the parties as of the date of the signing of the [R]elease." However, the focus of appellant's point is that Goss was not released since he left the partnership prior to the execution of the release and pursuant to section 537.060 an action may be maintained against him individually.
The plain language of the release stated that it released "all actions, causes of action, claims and demands . . . arising out of any rights accruing to either of the parties hereto by virtue of the law firm's representation of [appellant] at any time prior to the date of the release." As previously discussed in our disposition of part A of appellant's point, the Release was framed within the period during which Husch represented appellant. Further, the language of the Release clearly indicates that the parties intended to release those claims "arising" from that representation. Therefore, it follows that the parties intended to release those lawyers who were partners or members of Husch during that time period. Goss was a partner for the duration of the representation, was one of the attorneys who advised appellant and was therefore released. As a result, section 537.060 does not apply to him.
In part C of her point, appellant contends that McKee was not released because he was neither an employee nor a partner of Husch, but was "Of Counsel," not named in the release and did not have the authority to bind Husch and that section 537.060 applies to him.
An agent's authority may be express, implied or apparent. Express authority may be created by knowing acquiescence of the principal in the conduct of his agent. Rosenblum v. Jacks or Better of America West Inc., 745 S.W.2d 754, 760 (Mo.App.E.D. 1988).
The record reveals that the letter of engagement, by which appellant retained Husch, was drafted on Husch letterhead, was signed by McKee on behalf of Husch and recited the billing rates for partners, associates and legal assistants. The law firm represented appellant pursuant to the letter of engagement and billed appellant for its representation. Further, McKee signed the Release on behalf of Husch, which his affidavit affirmed. Husch acknowledged McKee's authority to bind it by accepting the engagement to represent appellant and accepting the reduction in the their bill for legal services in return for the Release settling the dispute. McKee was an attorney of the law firm and clearly was an agent of the firm with the express authority to bind it.
Further, the plain language of the Release releases the "law firm," a partnership, which does not exist as an entity separate from the partners. McKee was an agent of the partnership and was identified as such by his signature on the letter of engagement and the Release. McKee signed the release on behalf of the firm and it is clear the parties intended to release him. Therefore, section 537.060 does not apply as to McKee. Point denied.
Judgment affirmed.
Gary M. Gaertner, P.J. and James R. Dowd, J., concur.