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Norman v. Wright3/18/2003
n fault under section 538.230, section 537.060 applies. See Vincent, 833 S.W.2d at 863.
According to the Normans, a reduction under section 537.060 must be affirmatively pleaded. A reduction under section 537.060 is a satisfaction of an amount owed. Walihan v. St. Louis-Clayton Orthopedic Group, Inc. , 849 S.W.2d 177, 180 (Mo. App. 1993), citing State ex rel. Normandy Orthopedics v. Crandall , 581 S.W.2d 829, 834 (Mo. banc 1979); see also Titan Construction Co. v. Mark Twain Kansas City Bank , 887 S.W.2d 454, 457-58 (Mo. App. 1994). Satisfaction is an affirmative defense. Rule 55.08 . Affirmative defenses must be pleaded and proved. Rule 55.01 ; Brizendine v. Conrad, 71 S.W.3d 587, 592-93 (Mo. banc 2002).
Dr. Wright argues that the Titan case does not apply because it was a contract action. By its terms, section 537.060 states that tort defendants are subject to "all other consequences of such [tort] judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract." A reduction under section 537.060 must be pleaded and proved as an affirmative defense. Walihan, 849 S.W.2d at 180.
Dr. Wright invokes Julien v. St. Louis University , 10 S.W.3d 150, 152 (Mo. App. 1999), for the proposition that a reduction under section 537.060 "may be filed, considered and ruled at any time after the entry of judgment." Julien does not specifically address the pleading requirement for a reduction under section 537.060. To the extent inconsistent with this opinion, Julien should no longer be followed.
Here, the issue of reduction under section 537.060 was not raised by the pleadings. "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Rule 55.33(b) . In this case, there was no express consent. Dr. Wright argues implied consent, emphasizing that in both the release of and stipulation with the two other defendants, the Normans reference section 537.060. In context, the Normans reference section 537.060 in order to retain all claims against Dr. Wright. The Normans did not consent to try the issue of reduction under section 537.060. See American Samax Co. v. Cliff Packer Chevrolet, Inc. , 588 S.W.2d 529, 531-32 (Mo. App. 1979).
Pleadings present, define, and isolate the issues, so that the trial court and all parties have notice of the issues. Walker v. Kansas City Star Co. , 406 S.W.2d 44, 54 (Mo. 1966); see also Weber v. Weber , 908 S.W.2d 356, 359 (Mo. banc 1995); Hesse v. Wagner , 475 S.W.2d 55, 61 (Mo. 1971); Gerber v. Schutte Inv. Co. , 194 S.W.2d 25, 28 (Mo. 1946). The relief awarded in a judgment is limited to that sought by the pleadings. Brown v. Wilson , 155 S.W.2d 176, 180 (Mo. banc 1941); Sveum v. J. Mess Plumbing, Inc. , 965 S.W.2d 924, 927 (Mo. App. 1998). The trial court should not have reduced the judgment, because Dr. Wright failed to plead and prove the affirmative defense of reduction under section 537.060. III. The judgment is reversed and the case remanded.
All concur.
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