Austin v. Trotters Corp.

• Decision Date: 20 September 1991
• Docket Number: No. 17199,17199
• Citation: 815 S.W.2d 951
• Parties: Joy C. Lansdown AUSTIN and Ransford A. Austin, Plaintiffs-Appellants, v. TROTTER'S CORPORATION, Great Central Insurance Company, GAB Business Services, Inc., Donald M. Johnson and Mark P. Lucas, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 951

815 S.W.2d 951

Joy C. Lansdown AUSTIN and Ransford A. Austin, Plaintiffs-Appellants, v. TROTTER'S CORPORATION, Great Central Insurance Company, GAB

Business Services, Inc., Donald M. Johnson and

Mark P. Lucas, Defendants-Respondents.

No. 17199.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 20, 1991.

David F. Sullivan, Schmidt, Kirby & Sullivan, P.C., Springfield, for plaintiffs-appellants.

Raymond E. Whiteaker, Janis L. Prewitt, Woolsey, Fisher, Whiteaker & McDonald, Rae L. Nickell, Springfield, for defendants-respondents.

FLANIGAN, Chief Judge.

Plaintiffs Joy Austin ("Joy"), and Ransford Austin, her husband, filed this action against defendant Trotter's Corporation ("Trotter's"). The petition alleged that on December 18, 1987, Joy was an invitee in defendant Trotter's restaurant in Springfield and sustained a fall as a result of Trotter's negligence. Joy sought damages for personal injuries and losses she sustained as a result of the fall. Ransford sought recovery on his claim for loss of services of his spouse.

While the action was pending on the original petition, the trial court entered its order sustaining Trotter's motion for summary judgment with respect to the claim of Joy. Trotter's motion was based on a release executed by Joy in favor of Trotter's on February 15, 1988.

Thereafter, the plaintiffs filed an amended petition and added these four defendants: Great Central Insurance Company ("Great Central"), GAB Business Services, Inc. ("GAB"), Donald M. Johnson, and Mark P. Lucas. Count III of the amended petition was filed by both plaintiffs and directed against Great Central, GAB, and Johnson. The trial court sustained Great Central's motion to dismiss Count III and a separate motion to dismiss Count III filed by GAB and Johnson. Count IV of the amended petition was filed by Joy against Great Central and Mark Lucas. The trial court sustained Great Central's motion to dismiss Count IV and a separate motion of Mark Lucas to dismiss Count IV for lack of personal jurisdiction.

With respect to its rulings on Counts III and IV, and its sustention of Trotter's motion for summary judgment with respect to Joy, the trial court entered a determination that there was no just reason for delay and designated each of those rulings final for purposes of appeal. Plaintiffs appeal.

Plaintiffs' first point is that the trial court erred in sustaining Trotter's motion for summary judgment with respect to the claim of Joy because there were genuine issues of material facts concerning the release, in that Joy "contested (sic) that the release was not intended to be a full and final release of all claims, was not supported by consideration, and/or was obtained by means of misrepresentation, fraud, and/or mistake."

Trotter's motion for summary judgment, with respect to the claim of Joy, was based on a release. The motion was supported by the affidavit of Donald Johnson, responses of plaintiffs to requests for admissions, the release itself, and the draft issued to Joy for the release.

According to the affidavit of Johnson, based on his personal knowledge as an adjuster for Trotter's insurer, Johnson mailed the release and a "medical proof of loss" to Joy. After retaining the documents in her possession for several days, Joy returned the documents to Johnson. The documents were "signed, witnessed, and notarized." While Joy had the release in her possession, she telephoned Johnson and "inquired as to exactly what the nature of the document was that she was signing." Johnson informed Joy that she was signing a release. Trotter's insurer, Great Central, issued a check to Joy in the amount of $291.49 for medical payments, and issued a check ¹ in the amount of $180 to Joy as consideration for the release.

Plaintiffs admitted that Joy signed the release on February 15, 1988, that Joy was paid the sum of $180 by Great Central, and that Joy delivered the release to Johnson.

The release was signed by Joy on February 15, 1988, and witnessed by Mary L. Willard. By its terms, Joy, "for and in consideration of the sum of One Hundred Eighty ($180) Dollars, the receipt and sufficiency of which is hereby acknowledged," released Trotter's from all claims and causes of action arising out of the occurrence of December 18, 1988 (sic) ² at "Trotter's Restaurant--Springfield, Mo."

In opposition to Trotter's motion for summary judgment, Joy filed an affidavit which, omitting its formal portions, reads: "The release which Trotter's Corporation has raised as a defense in this case is not supported by good and valuable consideration, and this plaintiff denies that any consideration was given for said release. In addition, representations were made by defendant's insurance carrier that the release presented for signature by this plaintiff was not a full and total release of all claims. Therefore, said release was obtained by misrepresentation, fraud or, at least, through mistake."

"Summary judgment is an extreme, drastic remedy and may be employed only where there are no genuine issues of fact and where the moving party is entitled to judgment as a matter of law...." Zueck v. Oppenheimer Gateway Properties, 809 S.W.2d 384, 385-386 (Mo. banc 1991). On review, the appellate court examines the record in the light most favorable to the party against whom a summary judgment was rendered. Id., at 385-386. The burden is on the party moving for summary judgment to demonstrate that there is no genuine issue of fact. A genuine issue of fact exists when there is the slightest doubt about a fact. Mahurin v. St. Luke's Hosp., 809 S.W.2d 418, 421 (Mo.App.1991).

Rule 74.04(e), ³ which deals with the form of affidavits supporting or opposing a motion for summary judgment, reads, in pertinent part:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... When a motion for summary judgment is made and supported as provided in this Rule 74.04, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." (Emphasis added.)

An affidavit which fails to aver specific facts and relies only upon mere doubt and speculation fails to raise any issue of material fact. St. Charles County v. Dardenne Realty Co., 771 S.W.2d 828, 830 (Mo. banc 1989). Conclusory allegations are not sufficient to raise a question of fact in summary judgment proceedings. Missouri Ins. Guar. Ass'n v. Wal-Mart, 811 S.W.2d 28, 34 (Mo.App.1991). Conclusions of law in affidavits are of no effect. Stoffel v. Mayfair-Lennox Hotels, Inc., 387 S.W.2d 188, 192 (Mo.App.1965).

Joy admitted signing the release and thus she had "the burden of proving its invalidity." Gast v. Ebert, 739 S.W.2d 545, 547 (Mo. banc 1987). See also Landmark N. Cty. Bank v. Nat. Cable Tr., 738 S.W.2d 886, 890 (Mo.App.1987).

"The burden of proving consideration is upon the party relying on the agreement.... That burden is met by the introduction in evidence of the written agreement which recites consideration. 'The recitation of consideration in an agreement is prima facie evidence that consideration to support the agreement was present; it creates a presumption that the recitals are true, which presumption continues unless overcome by evidence to the contrary.' "

Id. at 891.

In Sanger v. Yellow Cab Company, Inc., 486 S.W.2d 477, 481-482 (Mo. banc 1972), the court said:

"Releasees do not make settlement and take general releases merely to pay the releasor the first installment on what he should have, leaving the matter open for the releasor to come back for more if his injuries prove serious. On the contrary, a settlement is made and a general release taken for the purpose of foreclosing further claims. The releasee does not stand in a fiduciary relation to the releasor. The injured party is not required to make a settlement, and the general rule of freedom of contract includes the freedom to make a bad bargain."

In Sanger the issue was whether the release was procured by mutual mistake. There was no claim of fraud.

In Higgins v. American Car Co., 324 Mo. 189, 22 S.W.2d 1043 (1929), plaintiff signed a general release for a personal injury claim but testified that the releasee's claim agent said the release "was only a receipt for wages lost." Plaintiff asserted that the release was procured by fraud. In Higgins, the court said, 22 S.W.2d at 1044:

"The rule is that the one who signs a paper without reading it, if he is able to read and understand, is guilty of such negligence in failing to inform himself of its nature that he cannot be relieved from the obligation contained in the paper thus signed, unless there was something more than mere reliance upon the statements of another as to its contents." (Emphasis added.)

The foregoing language in Higgins was quoted with approval in Sanger, 486 S.W.2d at 481.

In Poe v. Illinois Cent. R. Co., 339 Mo. 1025, 99 S.W.2d 82 (1936), the court discussed many Missouri cases dealing with releases which were attacked as having been obtained by fraud. The court said, 99 S.W.2d at 88:

"An analysis of the cases reveals that they turn on the nature of the transaction involved, the representations made by the representor, the relation existing between the parties--whether one of trust, or confidence, or friendship, or close acquaintance, or that of strangers dealing at arm's length--or the trick or artifice, if any, employed."

99 S.W.2d at 89-90 the court said:

"While the law affords every one reasonable protection against fraud, it does not go to the romantic length of establishing the relation of...