Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Boone County, Missouri The
Honorable Jon E. Beetem, Judge
Karen King Mitchell, Presiding Judge, and Victor C. Howard
and Gary D. Witt, Judges.
King Mitchell, Presiding Judge.
Sherman appeals from the trial court's grant of Missouri
Professionals Mutual-Physicians Professional Indemnity
Association's (Insurer's) motion for judgment on the
pleadings in her garnishment action under §
379.200. Because the abatement doctrine required
the trial court to either stay or dismiss the matter without
prejudice, we reverse the entry of judgment on the pleadings
and remand for further proceedings consistent with this
obtained a tort judgment against Dr. Michael Kaplan for $500,
000, pursuant to a settlement agreement under § 537.065.
After that judgment became final, Sherman filed a separate
garnishment action under § 379.200 against Insurer, who
had issued a professional liability policy to Dr. Kaplan with
a liability limit of $500, 000. After being served with the
garnishment action, Insurer filed a motion to intervene in
the underlying tort suit and set aside the $500, 000 judgment
against Dr. Kaplan. Insurer's motions were granted, and
the underlying tort judgment was set aside. Insurer then
filed a motion for judgment on the pleadings, or in the
alternative to dismiss, in the garnishment action, asking the
court to take judicial notice of the underlying tort file and
the court's ruling setting aside the tort judgment. The
garnishment court took judicial notice as requested and
offered to stay the matter, but Sherman opposed a stay,
seeking instead the opportunity to appeal. The garnishment
court then granted judgment on the pleadings in favor of
Insurer due to the lack of a valid, underlying judgment.
raises a single point on appeal; she argues that the trial
court erred in granting Insurer's motion for judgment on
the pleadings because she had a valid judgment insofar as the
trial court in the underlying tort action lacked jurisdiction
to allow Insurer to intervene and to set aside the original
underlying tort action, after granting Insurer's motion
to intervene and in determining whether to grant
Insurer's motion to set aside the original tort judgment,
the trial court necessarily had to determine the validity of
the underlying tort judgment. In seeking a judgment on the
pleadings in the garnishment action, Insurer was injecting
into the garnishment case the issue of the validity of the
underlying tort judgment. As the garnishment action then
involved "the same subject matter and parties as a
previously filed action so that the same facts and issues
[we]re presented, " the issue came squarely within the
abatement or "pending action" doctrine.
Golden Valley Disposal, LLC v. Jenkins Diesel
Power, Inc., 183 S.W.3d 635, 641 (Mo. App. S.D. 2006).
also known as the 'pending action doctrine, ' holds
that where a claim involves the same subject matter and
parties as a previously filed action so that the same facts
and issues are presented, resolution should occur through the
prior action and the second suit should be dismissed."
U.S. Bank, N.A. v. Coverdell, 483 S.W.3d 390, 401
(Mo. App. S.D. 2015) (quoting HTH Cos., Inc. v. Mo.
Dep't of Labor & Indus. Relations, 154 S.W.3d
358, 361 (Mo. App. E.D. 2004)). "The 'pendency of a
prior action is not ground for dismissal with prejudice, but
ground only to stay or abate the later action.'"
Id. (quoting Hubbard v. Mercantile Bank of
Kansas City, 773 S.W.2d 517, 519 (Mo. App. W.D. 1989)).
To permit both suits to continue "would cause unseemly
clashes of authority between courts of equal dignity and
jurisdiction, and would permit one, in the midst of a lawful
exercise of jurisdiction first obtained by the other, to step
in and overthrow the proceedings thus rightfully instituted
and lawfully carried out by the other. It seems clear this
should not be allowed. . . ."
In re Moreau, 161 S.W.3d 402, 407 (Mo. App. S.D.
2005) (quoting State ex rel. Coffield v. Buckner,
200 S.W. 94, 96 (Mo. App. 1917)). Accordingly, once the issue
in the garnishment proceeding evolved into the determination
of the validity of the underlying tort judgment and propriety
of the decision of the court in the underlying tort suit to
set aside its own judgment, the garnishment court was left
with only two options-either stay the garnishment proceedings
pending the outcome of the underlying tort suit or dismiss
the garnishment proceedings without prejudice.
though the trial court apparently offered to stay the
proceedings, Sherman was opposed. In response, the trial
court granted Insurer's request for judgment on the
pleadings, rather than take the only other option
available-dismissal without prejudice-under the pending
action doctrine. As a result, we are faced with the same
issue (validity of the September 28, 2015 judgment and the
judgment allowing intervention and setting aside the
September 28, 2015 judgment) in two separate appeals. We do
not allow parties to litigate the same claim against the same
opponent in simultaneous appeals because doing so could
result in either wasteful duplication or inconsistent
judgments. In re KCP & L Greater Mo. Operations
Co., 408 S.W.3d 175, 188 n.17 (Mo. App. W.D. 2013),
as modified (June 25, 2013). And "[t]he goal of
avoiding inconsistent judgments is not flexible."
the court in the underlying tort suit set aside its original
judgment, Sherman appealed both that ruling and the trial
court's ruling allowing Insurer to intervene. In case
number WD79718, Sherman v. Kaplan, also handed down
this date, we held that the trial court lacked jurisdiction
to grant Insurer's motion to intervene and, therefore,
erred in setting aside the underlying tort judgment on
Insurer's motion. If the garnishment court's grant of
judgment on the pleadings were allowed to stand in this
appeal, the result would be inconsistent judgments.
Accordingly, because the trial court erred under the
"pending action doctrine, " in granting judgment on
the pleadings, ...