Pennell v. Polen

611 S.W.2d 323, 1980 Mo. App. LEXIS 2882

• Court: Missouri Court of Appeals
• Decided: December 30, 1980
• Docket: WD 31231
• Status: Published

Opinions

SHANGLER, Judge.

The plaintiff appeals from a summary judgment under Rule 74.04.

The plaintiff brought an action for breach of contract for the sale of the issued corporation stock. The answer to the petition alleged failure of consideration, illegality, mutual mistake and unconscionability. The defendant elicited discovery by request to the plaintiff for admissions of fact. On the morning of trial, the defendant presented a motion to dismiss the petition for failure to state a cause of action or, alternatively, for summary judgment. The court engaged counsel in discussion on the motion and then entered summary judgment.

We sustain the contention of the plaintiff that the adjudication violates the condition that notice precede summary judgment.

The summary judgment Rule 74.-04(c) provides: “The motion shall be served at least 10 days before the time fixed for the hearing ...” The defendant avoids the onus of temporal restriction by the contention that the petition failed to state a cause of action and so was subject to summary dismissal notwithstanding other formality of procedure. No doubt summary judgment — as well as a motion to dismiss for failure to state a claim—may rest upon pleadings alone. Sam Kraus Company v. State Highway Commission, 416 S.W.2d 639, 641[1] (Mo.1967). But when that summary judgment rests on matters outside the pleadings, the adjudication must conform to the procedure for summary judgment. Ellis v. Jewish Hospital of St. Louis, 581 [1] (Mo.App.1979). That procedure calls for notice.¹ Rule 74.04(c).

The contract in suit had to do with the sale of a corporation. The terms of agreement referred to the transaction both as a sale of the outstanding shares of the corporation and as a transfer of the property of the enterprise as the consideration for the contract and as described in an appendage to the agreement. The contract contained no appendage nor other full description of the inventory and other property subject to transfer. The purchaser undertook to pay for the stock issue and other property from the gross of the monthly income of the enterprise.

The alternative motion, we note again, was presented to the court on the very day of trial, and without prior notice to the adversary litigant. It came as trial was about to commence. The motion alleged for relief, among grounds, that the obligation of the contract was made incomplete by the failure to specify the property to be transferred — and that the petition failed to state a claim because the plaintiff did not plead performance. Without invitation for comment from counsel for plaintiff, the court recessed to determine the merits of the motion. After consultation with a legal authority, the court reconvened and asked the plaintiff to respond to the motion. To one point of the contention the plaintiff argued that the contract was for the sale of the corporate stock so that the equipment and inventory were only incidents of the transaction. To the other point the plaintiff requested, but was denied, opportunity to amend to plead performance. The colloquy which ensued was an unrelieved debate between the court and counsel for plaintiff as to the effect of the contract terms, the significance of legal authorities on the problems perceived by the court to attend the petition as a valid statement of cause of action, and kindred concerns. It put, to all effect, counsel for plaintiff on his mettle for improvised response to the considered presentation of reasons and explicated legal authority given by the defendant in the formal motion.

The procedure adopted by the court antecedent to summary judgment contradicts the rationale of Rule 74.04(c) and Motion on the Judgment Rules 55.27(a) and (b): that all litigants have reasonable opportunity on notice to assemble the evidence and arguments to the court prior to judgment. Advance Concrete & Asphalt Co. v. Ingels, 556 S.W.2d 955, 957[2] (Mo.App.1977). There can be no doubt that the judgment rested on the response to discovery that the contract agreement referred to an exhibit — a matter outside the pleading proper — so that the adjudication was governed by summary judgment notice Rule 74.04(c). Rules 55.27(a) and (b). We need not decide whether Rule 74.04(c) pre-clusively requires that a ten-day notice precede summary judgment. We do say that a summary judgment made and entered on the very day of trial, without other notice to the adversary, or acquiescence, undermines the probity of the procedure and prejudices fairness.² In the terms of Judgment on the Pleadings Rule 55.27(b), such an adjudication denies to the adversary the “reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.”

The summary judgment is reversed and the case is remanded.

WASSERSTROM, C. J., concurs.

MANFORD, J., concurs in separate opinion filed.

1 . The text of Rules 55.27(a) and (b) makes explicit that a dismissal of a petition on the pleadings which rests on matters other than the pleadings proper must conform to the summary judgment procedure of Rule 74.04. [For this purpose, a judgment on the pleadings and a motion to dismiss are equivalents. Kelley v. Schnebelen, 545 S.W.2d 332 (Mo.App.1976); Sherwood Estates Home Association, Inc. v. Watt, 579 S.W.2d 851 (Mo.App.1979).] The posture of the litigation at the time of summary judgment on the pleadings in this case is most aptly governed by Rule 55.27(b):

After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04. [emphasis added]

2 . We question that the trial court procedure sufficed even as an unadorned motion for judgment on the pleadings under Rule 55.27(b). That rule allows the court to act only within such time as not to delay the trial.