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Joyce Elaine BOZARTH, Appellant, v. Edgar Foshe BOZARTH, Sr., Respondent.
Ms. Joyce Elaine Bozarth appeals the Jackson County Circuit Court's amended judgment in a breach-of-contract action against Mr. Edgar Foshe Bozarth, Sr. arising from a 2002 separation agreement. In overruling Ms. Bozarth's motion for partial summary judgment, the circuit court found in Mr. Bozarth's favor on the merits then awarded him attorney fees in the amount of $353,581.50; costs in the amount of $5,564.60; and post-judgment interest of 9% per annum. We reverse and remand.1
As part of a division of marital assets attendant to a legal-separation proceeding, Ms. Bozarth agreed in 2002 to award ownership of certain business entities to Mr. Bozarth, but, in the event of their sale or liquidation, she would receive defined percentages of the proceeds. She was also supposed to remain on the board of directors of each entity, to be provided their monthly financial statements, and to have a say in their purchase of additional assets. In a petition filed in the Jackson County Circuit Court in March 2018, Ms. Bozarth alleged that Mr. Bozarth had sold or liquidated these business entities, but failed to pay her the share required under the separation agreement.2 Count I alleged breach of contract, Count II sought an accounting, and Count III sought the appointment of a receiver. Mr. Bozarth filed a motion to dismiss that the circuit court denied, and then asserted various affirmative defenses and a counter-claim for declaratory judgment in answer to the petition. Mr. Bozarth asked the circuit court to declare that the breach-of-contract action was barred under section 516.350 and Missouri's doctrine of abatement.3 Ms. Bozarth filed a motion for partial summary judgment in April 2019, claiming that material facts were not in dispute and seeking judgment in her favor as to Count I. Mr. Bozarth opposed the motion. Both parties submitted uncontroverted facts, documents supporting those facts, and responses to the other party's uncontroverted facts as required under Rule 74.04.4
On the basis of the summary-judgment pleadings, the circuit court found no disputed material facts and issued an order in July 2019 denying the motion for partial summary judgment and also ruling that Mr. Bozarth “did not sell or liquidate any business entities and thus did not breach the Agreement.” The parties filed motions for the award of attorney fees, and the circuit court issued a final judgment in December 2019, noting that Counts II and III were moot because Ms. Bozarth had been appointed to the boards of directors of the relevant business entities and had been provided through discovery all the financial information she sought. Stating that the issues before the circuit court “were ruled on the merits in the July 26, 2019 Order,” the circuit court (1) entered judgment for Mr. Bozarth on Ms. Bozarth's breach-of-contract claim, (2) entered judgment for Ms. Bozarth on Mr. Bozarth's counter-claim for declaratory judgment, and (3) ordered Ms. Bozarth to pay Mr. Bozarth's attorney fees and costs, finding that he was the prevailing party and entitled to fees and costs under the separation agreement. The circuit court issued an amended judgment in January 2020 to award the specific fees, costs, and interest set forth above. Ms. Bozarth appealed both the December 2019 and January 2020 judgments to this Court, and we have consolidated the appeals.
Ms. Bozarth raises three points challenging the circuit court's “grant of summary judgment” to Mr. Bozarth and award of fees to him as the prevailing party, as well as the denial of her motion for partial summary judgment. In the first point, Ms. Bozarth contends that the circuit court erred in granting Mr. Bozarth “summary judgment” on her breach-of-contract claim. According to Ms. Bozarth, Mr. Bozarth did not establish by motion for summary judgment a right to judgment as a matter of law because he did not file a motion for summary judgment. She also argues on the merits that the uncontroverted facts that were part of her motion for partial summary judgment showed that the 2016 transactions, which removed substantially all of the assets from three holding companies, constituted a sale or liquidation of these business entities and required payment to Ms. Bozarth under the separation agreement. Mr. Bozarth had argued in opposition to the motion for partial summary judgment that the “ultimate ‘fact’ that there was a ‘sale/liquidation’ of Defendant's Business entities is vigorously disputed by Defendant.”
Mr. Bozarth contends that Ms. Bozarth did not preserve point one in that it was not presented to the circuit court. He cites case law involving bench-tried cases, wherein the appellate courts have uniformly held that “[a]n issue that was never presented to or decided by the trial court is not preserved for appellate review.” Brown v. Brown, 423 S.W.3d 784, 788 (Mo. banc 2014) (citations omitted). Mr. Bozarth also argues that Ms. Bozarth was required to file a motion to amend the circuit court's order on her motion for partial summary judgment while it was still interlocutory “on the ground that there was no counter-motion.”
After Ms. Bozarth dropped Counts II (for an accounting) and III (for the appointment of a receiver), thus apparently obviating the need for trial, which had been scheduled for September 30, 2019, the circuit court entered judgment on the basis of the July 2019 order.5 Mr. Bozarth argues that if Ms. Bozarth had brought her procedural objection before the circuit court when she dropped the remaining claims, the circuit court could have, if necessary, required him to file a counter-motion on whether he had breached the agreement, which the circuit court “had already answered in the negative.” He contends that the outcome of the proceeding on his counter-motion would have been the same. Mr. Bozarth then discusses at some length how a trial conducted in a separate division on whether he would be required to appear to show cause why he should not be held in contempt for violating the separation agreement constituted trial before the circuit court in which the breach-of-contract action had been filed. In his view, because the transcript from the contempt proceeding had been attached to the summary-judgment pleadings as support for a number of purportedly uncontroverted material facts, trial was therefore before the latter court. As well, in ruling on the motion for partial summary judgment, the circuit court referred to witness testimony from that trial when discussing whether particular material facts were contested.
This Court has previously observed that Rule 74.04 does not require an evidentiary hearing before summary judgment is granted because the purpose of summary judgment “is to expedite the disposition of a case and to conserve judicial resources and the financial resources of the parties.” Dunn v. Dunn, 536 S.W.3d 304, 310 (Mo. App. W.D. 2017); see also Pub. Sch. Ret. Sys. of Mo. v. Taveau, 316 S.W.3d 338, 345 (Mo. App. W.D. 2010) (noting that a trial court is not entitled to judge the credibility of witnesses for purposes of ruling on a motion for summary judgment). So we disagree with Mr. Bozarth's assertion that the circuit court could simply dispose of the matter litigated but not decided in a different division when what the circuit court had before it was Ms. Bozarth's motion for partial summary judgment in a breach-of-contract action.
Ms. Bozarth objects to Mr. Bozarth's attempt to shift to her the burden of preserving compliance with Rule 74.04 and argues that the summary-judgment rule's requirements are mandatory and cannot be waived. Because a reviewing court tests the propriety of summary judgment using the same criteria used by the trial court, she contends that “neither court can waive noncompliance with Rule 74.04, and this Court must apply the law as it should have been applied below.6 It cannot give or affirm any relief that violates Missouri law or Rule 74.04, regardless of whether this error was somehow ‘preserved’ for review.” In this regard, we have stated that “noncompliance with the requirements of Rule 74.04 is not a matter subject to waiver by a party,” despite the general rule that “matters complained of on appeal must be preserved for review by objection.” Crede, 979 S.W.2d at 532.7 Accordingly, Ms. Bozarth did not waive point one.
Still, before we address the matter, we must determine whether (1) the circuit court granted “summary judgment” to Mr. Bozarth by finding in his favor as a matter of law when ruling on Ms. Bozarth's motion for partial summary judgment, (2) the denial of a partial summary-judgment motion is final and appealable, and (3) the circuit court properly made an award on the merits to a non-moving party when denying a partial summary-judgment motion.
These concerns are raised under the authority of Betts-Lucas v. Hanson, 31 S.W.3d 484, 485 (Mo. App. W.D. 2000), where this Court stated that “[t]he denial of a summary judgment motion is not an appealable order,” and, to the extent that a party appeals the denial of its summary-judgment motion, “we will not review this claim.” We declined to address the summary-judgment denial in Betts-Lucas. Id. An exception to the rule that the “overruling of a motion for summary judgment generally is not subject to appellate review” was articulated in Bob DeGeorge Associates, Inc. v. Hawthorn Bank, 377 S.W.3d 592 (Mo. banc 2012). There, the court stated that “the overruling of a party's motion for summary judgment can be reviewed when its merits are intertwined completely with a grant of summary judgment in favor of an opposing party.” Id. at 596-97. Thus, to the extent that the circuit court's decision that Mr. Bozarth did not breach the separation agreement was a grant of summary judgment in his favor, Ms. Bozarth's claim relating to the overruling of her motion for partial summary judgment would be reviewable as its merits were intertwined completely with the “grant.”
Of relevance here, however, we raised an additional “problem” in Betts-Lucas, i.e., “that the circuit court entered summary judgment for Hanson and Holden even though Hanson and Holden did not file a cross-motion for summary judgment.” Betts-Lucas, 31 S.W.3d at 485. Citing that part of Rule 74.04 which “emphasizes that judgment should be entered if the moving party is entitled to a judgment as a matter of law,” we reversed the circuit court's grant of summary judgment in favor of Hanson and Holden. Id. at 486 (emphasis added).
Here, Ms. Bozarth contends that, by ruling in Mr. Bozarth's favor on the merits of the underlying claim, the circuit court improperly issued summary judgment in his favor. And, because the denial of her motion was intertwined completely with the “summary-judgment grant” in Mr. Bozarth's favor, the issues raised by the denial of her motion may be reviewed under Bob DeGeorge Associates. As noted above, Mr. Bozarth contends to the contrary that because the court did not state that it granted him summary judgment, and, claiming that the circuit court based its order on the trial record from another division, then the circuit court properly ruled in his favor on the merits after trial, thus properly disposing of the dispute. He states, “The Trial Court issued a bench decision, not a summary judgment, in favor of [Mr. Bozarth].” Mr. Bozarth asserts that, because the questions before two different divisions in two separate cases were identical and Ms. Bozarth could not have filed for summary adjudication in the contempt proceeding, in that it had been tried, the circuit court here “just picked up where [the other] Division ․ left off.”
The circuit court that issued the ruling from which this appeal has been taken did not try the dispute, as a trial would have involved hearing and observing the witnesses testify and making credibility determinations.8 The court that heard and observed the witnesses did not issue a ruling as to whether Mr. Bozarth was in contempt, so neither res judicata nor collateral estoppel is at issue. The circuit court here entered an order on the basis of a partial summary-judgment motion that Ms. Bozarth filed and all of its attendant statements, exhibits, and filings. That ruling found no material facts in dispute but ruled in Mr. Bozarth's favor as a matter of law. We can only conclude that this constituted a “summary judgment” ruling in Mr. Bozarth's favor. The circuit court could not do this under Betts-Lucas, because Mr. Bozarth had not filed a cross-motion for summary judgment.9 The denial of a summary-judgment motion is based on the summary-judgment record and decides only whether there is a genuine dispute as to material facts and if the movant is entitled to judgment as a matter of law. Rule 74.04(c)(6). Where a movant is not entitled to judgment as a matter of law on the basis of the summary-judgment record, the non-movant is not then entitled to judgment as a matter of law. The denial of a summary-judgment motion means that the case cannot be summarily dismissed, but may proceed to trial. Stacy v. Bar Plan Mut. Ins. Co., 522 S.W.3d 914, 918 (Mo. App. E.D. 2017) (“[U]pon a ruling denying a motion for summary judgment, the issues raised by the pleadings are still in the case ․ to be tried.” (citations omitted)). See also Jones v. Union Pac. R.R. Co., 508 S.W.3d 159, 161 (Mo. App. S.D. 2016) (“Courts determine and review summary judgment based on th[e] Rule 74.04(c) record, not the whole trial court record.”). That is why the denial of a summary-judgment motion is considered an interlocutory order, generally not subject to appeal.
Accordingly, and without expressing any opinion on the merits, we have determined that the judgment in Mr. Bozarth's favor must be reversed and remanded. Without a summary-judgment grant, we cannot review Ms. Bozarth's appeal from the denial of her motion for partial summary judgment, regardless of how completely entwined it is with the “summary judgment” we have reversed. Nor can we address the attorney fee issue as no one has yet prevailed in the underlying litigation.
Finding that the circuit court erred in ruling in Mr. Bozarth's favor as a matter of law when considering and overruling Ms. Bozarth's motion for partial summary judgment, we reverse and remand for further proceedings consistent with this opinion.
1. Both parties filed motions for attorney fees and costs on appeal, and we took the motions with the case. In light of our disposition of this appeal, neither party has prevailed, so we deny both motions.
2. This was apparently the third proceeding between the Bozarths involving the sale or liquidation of the business entities subject to the separation agreement. Mr. Bozarth filed for marital dissolution against Ms. Bozarth in 2017, and she filed for contempt as part of that action, alleging that he had willfully violated the separation agreement by selling the entities without sharing the proceeds with her. Ms. Bozarth also filed a motion to overturn the 2002 judgment of separation, claiming extrinsic fraud. The application for contempt citation was tried before the dissolution court and generated a transcript that the parties attached to the summary-judgment pleadings in the proceeding at issue in this appeal. The dissolution court declined to rule on the motion, finding that the issues relating to the separation agreement would be determined in the pending contract action.
3. Statutory references are to RSMo. (2016), unless otherwise indicated.
4. Rule references are to the Mo. R. Civ. P. (2019), unless otherwise indicated.
5. Recall that the July 2019 order denied the motion for partial summary judgment, finding no material disputed facts and that Mr. Bozarth did not breach the agreement.
6. See Iverson v. Wyatt, 969 S.W.2d 797, 799 (Mo. App. W.D. 1998) (“The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially.” (citation omitted)).
7. But see Premier Golf Mo., LLC v. Staley Land Co, LLC, 282 S.W.3d 866, 872 (Mo. App. W.D. 2009) (stating that “[w]here the issues are clear, the material facts are not disputed, and the question posed is one of law, procedural deficiencies will not preclude addressing a motion for summary judgment on the merits.” (citation omitted)). Premier Golf, it should be noted, did not involve a cross-motion missing in its entirety. Rather, “the issues and the documents in support of the motion [were] clear to the litigants, the trial court, and the appellate court” thus making failure to comply with Rule 74.04 not a per se preclusion of a summary-judgment grant or affirmance. Id.
8. We also observe that the dissolution court conducting the contempt proceeding limited the hearing to testimony and evidence that would show whether “there's sufficient evidence to essentially issue a summons to Mr. Bozarth requiring him to defend against the allegations of [Ms. Bozarth.]” According to the court, “the only issue being heard today is whether to issue an order to show cause requiring [Mr. Bozarth] to appear in the future to show cause why he should not be held in contempt for willfully violating the 2002 judgment.” The court stated that it would, at a subsequent hearing, “hear evidence of why he should or shouldn't be held in contempt and why he contends that there weren't willful violations or whether they've been cured and what remedies are available. We're not discussing that today.”
9. We review the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “The record is viewed in the light most favorable to the party against whom summary judgment was entered, and that party is afforded all reasonable inferences that may be drawn from the evidence.” Crede v. City of Oak Grove, 979 S.W.2d 529, 531 (Mo. App. W.D. 1998). “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. This standard reinforces our view that the circuit court erred in finding in Mr. Bozarth's favor as a matter of law when ruling on Ms. Bozarth's motion for partial summary judgment. We have only the facts and inferences raised by Ms. Bozarth's motion on which to base a review of the evidence in the light most favorable to her as the “non-moving party” vis-à-vis Mr. Bozarth's non-existent cross-motion for summary judgment. And we have only Mr. Bozarth's response to Ms. Bozarth's motion on which to measure which facts to take as true. This defies common sense.
Thomas H. Newton, Judge
Lisa White Hardwick, P.J. and Karen King Mitchell, J. concur.
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Docket No: WD 83493 consolidated with WD 83650
Decided: November 24, 2020
Court: Missouri Court of Appeals, Western District.
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