American Drilling Service Co. v. City of Springfield, No. 11889

CourtCourt of Appeal of Missouri (US)
Writing for the CourtFLANIGAN; GREENE, P. J., and TITUS
Citation614 S.W.2d 266
PartiesAMERICAN DRILLING SERVICE COMPANY, Plaintiff-Appellant, v. CITY OF SPRINGFIELD, Missouri, Defendant, and Wilkerson-Maxwell Company, Defendant-Respondent.
Docket NumberNo. 11889
Decision Date02 March 1981

Page 266

614 S.W.2d 266
AMERICAN DRILLING SERVICE COMPANY, Plaintiff-Appellant,
v.
CITY OF SPRINGFIELD, Missouri, Defendant,
and
Wilkerson-Maxwell Company, Defendant-Respondent.
No. 11889.
Missouri Court of Appeals, Southern District, Division One.
March 2, 1981.
Motion for Rehearing or to Transfer Denied March 27, 1981.

Page 268

James G. Wiehl, Richard R. Hardcastle, III, Greensfelder, Hemker, Wiese, Gale & Chappelow, St. Louis, William H. McDonald, David W. Ansley, John E. Price, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for plaintiff-appellant.

Jeffrey B. Rosen, Richard W. Miller, Miller & Glynn, P.C., Kansas City, James L. Bowles, Daniel, Clampett, Rittershouse, Dalton & Powell, Springfield, for defendant-respondent.

FLANIGAN, Judge.

Plaintiff American Drilling Service Company ("American"), brought this action against defendant, City of Springfield, and defendant, Wilkerson-Maxwell Company ("Wilkerson"). Prior to May 24, 1977, the city entered into a contract with Wilkerson under which Wilkerson, a general contractor, was to perform construction work on a project known as the "Reconstruction of Benton Avenue Viaduct" in accordance with plans and specifications prepared by the city. On May 24, 1977, American, as subcontractor, entered into a subcontract with Wilkerson to perform a portion of the work and furnish certain materials in accordance with the general contract and the plans and specifications. American completed its work on November 4, 1977. This action was instituted on December 18, 1978.

The petition involved here is the third one filed by American, its two predecessors having been successfully attacked by a variety of motions. The instant petition is in three counts. Count I is directed against the city. Count II and Count III are directed jointly against the city and Wilkerson. The basic inquiry on this appeal is whether the trial court erred in holding that both Count II and Count III failed "to state a claim upon which relief can be granted," Rule 55.27(a)(6), 1 against Wilkerson.

Wilkerson attacked the instant petition by filing four alternative motions, including a motion to dismiss on the ground that both Count II and Count III failed to state a claim upon which relief can be granted against Wilkerson, and a motion for summary judgment, Rule 74.04. In support of the motion for summary judgment Wilkerson attached an affidavit and other documentary evidence allegedly constituting admissions of American.

On January 29, 1980, in a letter to counsel for all parties, the trial court said: "American, the subcontractor, brings suit against Wilkerson, the contractor, and the city for extra work and labor American contends it is entitled to in this cause. There are two

Page 269

contracts involved: the contract between the city and Wilkerson, and the contract between Wilkerson and American. The contract between Wilkerson and American is subject to the terms and conditions of the contract between the city and Wilkerson. American's contract with Wilkerson makes provision for American to make its claim by suing in the name of Wilkerson. Although given the opportunity, American refuses to specifically allege that it has ever requested Wilkerson to go forth with the litigation if necessary to obtain payment of the amount allegedly owed. There can be no argument but that Wilkerson cannot proceed against the city without the consent of American. As the matter now stands, Wilkerson's hands are tied because American refuses to use the avenue open to it under the contract. The motion of Wilkerson to dismiss will be sustained, effective February 11, 1980." (Emphasis added.)

On February 14, 1980, the trial court made the following entry: "Motion to dismiss filed by defendant Wilkerson is sustained." Plaintiff American appeals from that order. 2 American's claims against the city remain pending in the trial court and are not involved in this appeal.

American's first, and main, point is that the trial court erred in sustaining Wilkerson's motion to dismiss. The basis of the motion was that Count II and Count III failed to state a claim upon which relief can be granted against Wilkerson. The ruling was wrong, argues American, for several reasons including: (a) each count did state a claim upon which relief can be granted against Wilkerson, and (b) Section 11 3 of the American-Wilkerson subcontract, which figured in the trial court's ruling, applies only to the processing of claims against the city and does not apply to American's claims against Wilkerson.

Before American's first point is considered it is necessary to determine the appropriate mode of appellate review. The last sentence of Rule 55.27(a) reads: "If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, 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 material made pertinent to such a motion by Rule 74.04."

It is the position of Wilkerson that the order of dismissal was based, in part, on "matters outside the pleadings" and, pursuant to Rule 55.27(a), must be treated as a summary judgment in favor of Wilkerson and reviewed as such 4 by this court. In support of that position Wilkerson cites five cases. 5 Each of those cases, however, is distinguishable from the instant case in that none of them involved the joint and alternative presentation to the court of a motion to dismiss for failure to state a claim upon which relief can be granted, Rule 55.27(a)(6), and a motion for summary judgment, Rule 74.04.

The counterpart to Rule 55.27 is Rule 12(b) of the Federal Rules of Civil Procedure. The last sentence of said Rule 12(b) is identical to the last sentence of Rule 55.27(a) except that the federal rule makes reference to Rule 56, F.R.C.P., which is the federal rule on summary judgment, and uses the word "pleading" where the last

Page 270

sentence of Rule 55.27(a) uses "pleadings." The last sentence of present Rule 55.27(a) was inserted into that rule in 1973. See Empiregas, Inc. of Noel v. Hoover Ball & Bearing Co., 507 S.W.2d 657, 660 (fn. 4) (Mo.1974).

In the following Missouri cases a motion to dismiss was based on the ground that the petition failed to state a claim upon which relief can be granted, Rule 55.27(a)(6). These cases hold that before the trial court may treat such a motion as a motion for summary judgment, when matters outside the pleadings are presented and not excluded, the trial court must first notify the parties that it is treating the motion as one for summary judgment and give the parties reasonable opportunity to present all material pertinent to a motion for summary judgment. Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 628-629 (Mo.App.1975); Kipper v. Vokolek, 546 S.W.2d 521, 523(3), 524(4) (Mo.App.1977); Stix & Co., Inc. v. First Mo. Bank & Tr. Co., Etc., 564 S.W.2d 67, 69(2) (Mo.App.1978).

In Feinstein v. Edward Livingston & Sons, Inc., 457 S.W.2d 789 (Mo.1970), a motion to dismiss for failure to state a claim upon which relief can be granted was accompanied by an alternative motion for summary judgment. The trial court sustained the motion to dismiss but the motion for summary judgment "was not passed upon by the trial court, but, instead, was merely declared by the trial court as being moot." The supreme court held that the motion for summary judgment was not before it for review and the court reviewed only the ruling on the motion to dismiss, the review being confined to the face of the petition.

It is true that Feinstein was decided before Rule 55.27(a) was amended to include its present last sentence. There are, however, federal authorities, decided after Federal Rule 12(b) attained its present form, which are in accord with the rationale of Feinstein.

The following federal authorities hold that when a trial court grants a motion to dismiss, based on a failure of the pleading to state a claim upon which relief can be granted, and makes no ruling on a motion for summary judgment which was filed jointly with the motion to dismiss, and the motions are accompanied by "matters outside the pleadings," and there is nothing in the record to show that the trial judge took those matters into consideration, and appeal is governed by the rules of appellate review pertaining to the sustensions of motions to dismiss and is not governed by the rules of appellate review pertaining to the grant of a summary judgment. Reid v. Hughes, 578 F.2d 634, 636(2) (fn. 2) (5th Cir. 1978); Dinwiddie v. Brown, 230 F.2d 465, 468(3) (5th Cir. 1956); Moffett v. Commerce Trust Co., 187 F.2d 242, 249(6) (8th Cir. 1951); Contra: S. & S. Logging Co. v. Barker, 366 F.2d 617, 622(4-6) (9th Cir. 1966); Richardson v. Rivers, 335 F.2d 996, 998(1-2) (D.C.Cir.1964).

The issues in this case are complex. The legal file component of the record on appeal, Rule 81.12(a), filed by appellant American, is 77 pages in length. The "supplemental record on appeal." Rule 81.12(e), filed by respondent Wilkerson, is 174 pages in length. There is nothing in the instant record to show that the trial court, in ruling the motion to dismiss, considered anything other than the face of the petition (and its attachments). The court's letter of January 29, 1980, makes it clear that its ruling was based upon the contents of the subcontract, which was attached to the petition. The trial court did not rule on the motion for summary judgment nor did it notify the parties that it was treating the motion to dismiss as a motion for summary judgment.

American's brief as appellant proceeds on the assumption that the rules governing appellate review of the trial court's order are those applicable to the granting of motions to dismiss based on failure...

To continue reading

Request your trial
17 practice notes
  • Koch v. Construction Technology, Inc.
    • United States
    • Supreme Court of Tennessee
    • 20 Mayo 1996
    ...(1978); Mrozik Constr., Inc. v. Lovering Assoc., 461 N.W.2d 49 (Minn.App.1990); American Drilling Service Co. v. City of Springfield, 614 S.W.2d 266 (Mo.App.1981); D.K. Meyer Corp. v. Bevco, Inc., 206 Neb. 318, 292 N.W.2d 773 (1980); Action Interiors, Inc. v. Component Assembly Systems, Inc......
  • Capitol Steel Fabricators, Inc. v. Mega Construction Co., No. B095849
    • United States
    • California Court of Appeals
    • 28 Octubre 1997
    ...Mrozik Const. v. Lovering Associates (Minn.App.1990) 461 N.W.2d 49, 51-52; American Drilling v. City of Springfield (Mo.App.1981) 614 S.W.2d 266, 273; D.K. Meyer Corp. v. Bevco, Inc. (1980) 206 Neb. 318, 292 N.W.2d 773, 775-777; Action Interiors v. Component Assembly (1988) 144 A.D.2d 606, ......
  • Counts v. Morrison-Knudsen, Inc., MORRISON-KNUDSE
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Diciembre 1983
    ...confined to the face of the petition which is construed in a light favorable to plaintiff. American Drilling v. City of Springfield, 614 S.W.2d 266, 271[2-4] (Mo.App.1981) (citing authorities). The petition must be accorded a liberal construction. Matthews v. Pratt, 367 S.W.2d 632, 634 (Mo.......
  • Murphy v. City of Springfield, No. 16080
    • United States
    • Court of Appeal of Missouri (US)
    • 31 Julio 1990
    ...F. 21 The judgment is affirmed. HOGAN, C.J., and FLANIGAN, P.J., concur. --------------- 1 American Drilling v. City of Springfield, 614 S.W.2d 266 (Mo.App.1981); Murphy v. City of Springfield, 738 S.W.2d 521 (Mo.App.1987). The background facts in this case are essentially identical to the ......
  • Request a trial to view additional results
17 cases
  • Koch v. Construction Technology, Inc.
    • United States
    • Supreme Court of Tennessee
    • 20 Mayo 1996
    ...(1978); Mrozik Constr., Inc. v. Lovering Assoc., 461 N.W.2d 49 (Minn.App.1990); American Drilling Service Co. v. City of Springfield, 614 S.W.2d 266 (Mo.App.1981); D.K. Meyer Corp. v. Bevco, Inc., 206 Neb. 318, 292 N.W.2d 773 (1980); Action Interiors, Inc. v. Component Assembly Systems, Inc......
  • Capitol Steel Fabricators, Inc. v. Mega Construction Co., No. B095849
    • United States
    • California Court of Appeals
    • 28 Octubre 1997
    ...Mrozik Const. v. Lovering Associates (Minn.App.1990) 461 N.W.2d 49, 51-52; American Drilling v. City of Springfield (Mo.App.1981) 614 S.W.2d 266, 273; D.K. Meyer Corp. v. Bevco, Inc. (1980) 206 Neb. 318, 292 N.W.2d 773, 775-777; Action Interiors v. Component Assembly (1988) 144 A.D.2d 606, ......
  • Counts v. Morrison-Knudsen, Inc., MORRISON-KNUDSE
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Diciembre 1983
    ...confined to the face of the petition which is construed in a light favorable to plaintiff. American Drilling v. City of Springfield, 614 S.W.2d 266, 271[2-4] (Mo.App.1981) (citing authorities). The petition must be accorded a liberal construction. Matthews v. Pratt, 367 S.W.2d 632, 634 (Mo.......
  • Murphy v. City of Springfield, No. 16080
    • United States
    • Court of Appeal of Missouri (US)
    • 31 Julio 1990
    ...F. 21 The judgment is affirmed. HOGAN, C.J., and FLANIGAN, P.J., concur. --------------- 1 American Drilling v. City of Springfield, 614 S.W.2d 266 (Mo.App.1981); Murphy v. City of Springfield, 738 S.W.2d 521 (Mo.App.1987). The background facts in this case are essentially identical to the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT