Bratt v. Cohn, WD

• Citation: 969 S.W.2d 277
• Decision Date: 02 June 1998
• Docket Number: No. WD,WD
• Parties: Anne BRATT, Personal Representative For The Estate Of Aleck Bratt, et al., Appellant, v. Leslie COHN, et al., Respondent. 54265.
• Court: Missouri Court of Appeals

Page 277

969 S.W.2d 277

Anne BRATT, Personal Representative For The Estate Of Aleck

Bratt, et al., Appellant, v. Leslie COHN, et al., Respondent.

No. WD 54265.

Missouri Court of Appeals,

Western District.

Submitted Feb. 19, 1998.

Decided June 2, 1998.

Clem W. Fairchild, Kansas City, for appellant.

Joel K. Goldman, Kansas City, for respondent.

Before EDWIN H. SMITH, P.J., and SMART and ELLIS, JJ.

SMART, Judge.

This appeal involves the issue of whether a cemetery operated by a Jewish synagogue since 1907, which has never elected to be governed by the Cemetery Endowed Care Fund Law of Missouri, is subject to regulation as an endowed care cemetery because it established a fund for perpetual care.

Aleck Bratt, the deceased husband of Appellant Anne Bratt, filed suit against the officers, trustees and directors of Sheffield Cemetery, ¹ the congregation of Beth Israel Abraham and Voliner ("BIAV") and the Attorney General of Missouri, alleging that cemetery and synagogue officers were guilty of violations of § 214.270, et seq., the Cemetery Endowed Care Fund Law. Aleck Bratt purported to be suing in his own behalf as a relative of persons buried in the cemetery, and also as a representative of all owners of rights of interment and perpetual care. The trial court granted the defendants' motion for summary judgment on Counts II and III and dismissed Counts I and IV. The trial court denied plaintiff's request to file a second amended petition. Plaintiff-appellant contends that the trial court erred in finding that Sheffield Cemetery was not a cemetery governed by § 214.270, RSMo Supp.1997, and in denying them relief on their claims for relief, including their claim for an accounting. Appellant also challenges the trial court's denial of his motion to file a second amended petition.

Factual Background

BIAV is an orthodox Jewish synagogue that owns and operates Sheffield Cemetery. Sheffield has been in existence since 1907 and, although it has not limited its sales to members of BIAV, it does restrict the sale of its burial plots to persons born of a Jewish mother, who agree to have their remains ritualistically washed and enshrouded and to have a closed casket ceremony. Sheffield is the only cemetery in the Kansas City area that exclusively provides these ritualistic orthodox Jewish burials. Aleck Bratt was, at various times from 1966 through 1993, the President of BIAV, a Board member of BIAV, and the Chairman of the Cemetery Committee.

Sheffield Cemetery offers perpetual maintenance. However, until 1994 no trust fund for the specific purpose of perpetual maintenance existed, although the appellant claims that the Constitution of BIAV provides for a perpetual maintenance fund, effective January 1, 1975. The appellant bases his claim on a provision in the "Constitution and By-laws" of BIAV. That provision states:

A Perpetual Maintenance Fund for the sole purpose of maintaining the cemetery after its closing shall consist of a hundred thousand ($100,000) dollars plus a hundred ($100.00) dollars for each new burial and any other amount therein designated by the Board of Directors and approved by the congregation to be deposited into this fund and accrued interest or dividends effective January 1, 1975.

This fund shall be managed by the Finance and Cemetery Committees meeting jointly. The joint committees, whose chairman shall be the President of the Congregation, shall direct the Treasurer as to which financial institution or financial assets this fund be placed, except if the Treasurer be directed otherwise by the Board of Directors as to the appropriate placement of this fund.

The trust created in 1994, the "Sheffield Perpetual Maintenance Trust" was created pursuant to § 352.010, § 352.020 and § 352.060 and was approved by the circuit court.

The Litigation

Aleck Bratt filed suit against the respondents in his capacity as an individual and as representative of all owners of rights of interment and perpetual care and all those entitled to have their dead buried in the cemetery or who already have friends or relatives buried in Sheffield Cemetery. Plaintiff claimed in his petition that the synagogue diverted funds from the cemetery fund for operating costs of BIAV. Plaintiff alleged, inter alia, that (1) Aleck Bratt's relatives are buried in Sheffield and accordingly he is a beneficiary of the Sheffield Cemetery Perpetual Maintenance Fund and Trust, and has standing to sue; (2) the trust fund consists of $700,000.00 but should have been endowed with more funds when initially established; (3) the individual respondents caused monies from the Trust to be used for the synagogue; (4) Sheffield Cemetery was not properly maintained; (5) the Trust is not maintained by a state or federally chartered banking institution; and (6) respondents are in violation of the Cemetery Endowed Care Fund Law.

Count I of the petition requests an accounting by respondents Cohn, Goldberg, Dimbert, Shoham and Wurzburger in their individual capacities and a judgment against them and against BIAV if they were found to have misapplied funds. Count II requests an accounting against the respondents in their capacity as trustees. Count III requests a declaratory judgment that Sheffield Cemetery Perpetual Maintenance Trust violates § 214.270. As relief, appellant asks that the Trust be declared null and void, that the trustees be removed, that the court appoint a successor trustee and order an accounting. Count IV requests an injunction enjoining individual defendants from violating § 214.340.

The respondents moved for partial summary judgment on Counts II and III on the grounds that the statute does not apply to Sheffield, arguing that Sheffield is not a cemetery governed by the statute (because it meets the qualification for exemption as a "religious" cemetery) and that BIAV never elected to make Sheffield an endowed care cemetery. The trial court granted the respondents' motion, determining that because of the religious nature of qualifications for burial of Sheffield, the cemetery is not a "cemetery" within the meaning of § 214.270(3), RSMo 1994.

The respondents filed a motion to dismiss Counts I and IV. The trial court granted this motion, determining that plaintiff had not met the requirements for pleading the case as a derivative action, citing, Rule 52.09 and McLeese v. J.C. Nichols Co., 842 S.W.2d 115 (Mo.App.1992). The court also decided that, even if the action had been properly brought as a derivative action, the claims were still subject to dismissal since the statute had been determined to be inapplicable.

The plaintiff filed a motion for leave to file a second amended petition. The trial court denied the motion, finding that the proposed amendment was also premised upon § 214.270, which the court had already ruled to be inapplicable to the case. The court also ruled that the proposed amended petition failed to state a claim because it failed to properly plead a derivative action. Appellant appeals from the trial court's grant of summary judgment on Counts II and III, from the dismissal of Counts I and IV, and from the denial of their motion to file a second amended petition. Aleck Bratt died after the appeal was taken in this case. Anne Bratt, the surviving spouse and personal representative of his estate, was substituted as a party in his stead.

Request For Dismissal of Appeal

The defendants claim that the appellant's brief violates Rule 84.04 because its jurisdictional statement and statement of facts are inadequate. They ask that the appeal be dismissed. Although both the jurisdictional statement and statement of facts are not in strict compliance with the rule, the deficiencies are not sufficient to cause dismissal of the appeal. We prefer, when departure from the rules is not substantial, to decide a case on its merits rather than on the minor deficiencies of the brief. Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997). Therefore, we deny the request for outright dismissal of the appeal.

Standard of Review--Summary Judgments

An appellate court's review of summary judgments is basically a de novo review. Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo. banc 1996). We view the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The party moving for summary judgment has the burden of proving that it is entitled to the judgment as a matter of law. Id. at 382. Evidence in the record presenting a genuine issue of material fact will defeat a movant's right to summary judgment. Id. A genuine issue is defined as one that "implies that the issue, or dispute, must be a real and substantial one--one consisting not merely of conjecture, theory and possibilities." Id. at 378. The dispute must not be simply argumentative, frivolous or imaginary. Id. at 382. If the trial court's grant of summary judgment is sustainable on any theory as a matter of law, we will not set it aside on review. City of Washington v. Warren County, 899 S.W.2d 863, 868 (Mo. banc 1995). "The theory need not be one raised or argued by either party and may be raised sua sponte by the appellate court, provided the court incorporates principles raised in the petitions." Id. Here, there is no substantial disagreement about the facts material to whether the endowed care fund statutory provisions apply. Rather, the issue is simply a matter of law--one of statutory construction.

The Cemetery Endowed Care Fund Law

The Cemetery Endowed Care Fund Law, §§ 214.270-410, was adopted in 1961, and has undergone several amendments. A thorough reading of the statute suggests that the primary purpose of the statute is consumer protection. The statute provides that all cemeteries may elect to register and operate as "endowed care cemeteries" in compliance with the provisions of the statute § 214.280.1, RSMo Supp.1997. Alternatively, at the...