Case summaries for Jan. 1 - 7, 2021
Each week, The Missouri Bar provides links to all hand downs published online during the past seven days by the Supreme Court of Missouri and the Missouri Court of Appeals. The Missouri Bar has created headings and summaries for each case. Summaries are not part of the opinions of the Court. They have been prepared for the convenience of the reader and should not be quoted or cited.
Summary Judgment Must Stand on Summary Judgment Record
A motion to dismiss for failure to state a claim addresses the petition only on the petition’s face, and if the motion includes matters outside the pleadings, the motion is one for summary judgment. Summary judgment stands on the record made on summary judgment alone, which consists solely of the allegations in the numbered paragraphs of the motion, with support in evidence cited in the motion and response. Matters outside those bounds, even if on the record, do not support a ruling on the motion. Circuit court erred in disposing of an action on a motion to dismiss by relying on matters outside the pleadings and outside the motions.
In The Matter Of: Margie E. Summers; Lisa Summers vs. Margie Summers and Bonnie Nims
Missouri Court of Appeals, Western District - WD83124
Attorney Fees in Partition Discussed
In an action for partition, when the parties had paid expenses from a single account in which they commingled their separate funds for 20 years, circuit court did not err in denying appellant an award of amounts for repairs and taxes that appellant did not prove on the record. “Evidence of each tenant’s contribution is often unobtainable and cannot be reconstructed over time, under such a circumstance, any division other than even is unfair.” As to the amounts for repairs and taxes that the record does show, circuit court did not err in awarding them to respondent, though the award should come out of partition proceeds rather than a judgment against appellant. Generally, circuit court properly allocated each party their own attorney fees on all relevant factors. Statute and rule allow an award of attorney fees in a partition action, but both parties gain from the partition proceeds, so courts limit the award to the amount needed if the action were uncontested; an award of all fees against appellant was an abuse of discretion, and Court of Appeals remands for a determination of how much is due, with credit for how much has already been paid, with the award coming from partition proceeds. And circuit court did not abuse its discretion when it awarded fees for guardian ad litem, whose appointment appellant sought, to appellant.
Dawn Calabrese, Respondent, vs. Kelly Dwyer, Appellant.
Missouri Court of Appeals, Eastern District - ED108057