Firestone v. Vanholt, WD 64523.

• Decision Date: 20 December 2005
• Docket Number: No. WD 64523.,WD 64523.
• Citation: 186 S.W.3d 319
• Parties: Cindy FIRESTONE, Appellant, v. Anthony VANHOLT, Diane VanHolt, and Susan VanHolt, Defendants, Matthew VanHolt and Jim Akers, Respondents.
• Court: Missouri Court of Appeals

186 S.W.3d 319

Cindy FIRESTONE, Appellant, v. Anthony VANHOLT, Diane VanHolt, and Susan VanHolt, Defendants Matthew VanHolt and Jim Akers, Respondents.

No. WD 64523.

Missouri Court of Appeals, Western District.

December 20, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 31, 2006.

Application for Transfer Denied April 11, 2006.

COPYRIGHT MATERIAL OMITTED

Jeffery T. Adams, Clinton, MO, for Appellant.

James C. Johns, Clinton, MO, for Respondent VanHolt.

Michael X. Edgett and Audara L. Charlton, Clinton, MO, for Respondent Akers.

Before EDWIN H. SMITH, C.J., and LOWENSTEIN and ULRICH, JJ.

EDWIN H. SMITH, Chief Judge.

Cindy Firestone appeals the summary judgments of the Circuit Court of Henry County for respondents, Matthew VanHolt (M. VanHolt)¹ and Jim Akers (Akers),² on the appellant's first amended wrongful death petition filed against them, seeking to hold them vicariously liable in damages for the death of her husband, Paul Firestone (P. Firestone). He died from injuries he sustained when the motor vehicle he was driving was struck from behind by a motor vehicle being driven by Anthony VanHolt (A. VanHolt), M. VanHolt's brother. At the time of the accident, A. VanHolt, who owned Tony's Roofing, was traveling to a roofing job at the Greyhound Apartments in Windsor, Missouri. The job was secured by Akers, d.b.a. Akers Home Improvement, pursuant to a competitive bid. The appellant alleged in Count III of her first amended petition that M. VanHolt was vicariously liable for the wrongful death damages caused by Anthony's negligence based upon a joint venture or partnership theory with respect to the Greyhound Apartments roofing job. She alleged in Count IV that Akers was vicariously liable for her alleged wrongful death damages based upon a joint venture or agency theory with respect to the roofing job. M. VanHolt and Akers filed separate motions for summary judgment. In their motions, they alleged that they were entitled to summary judgment on the appellant's claims against them because the undisputed facts alleged in their motions negated one or more of the essential proof elements of the appellant's claim against them on any theory pled.

The appellant raises two points on appeal. In Point I, she claims that the trial court erred in granting Akers' motion for summary judgment on Count IV of her amended petition, as to both theories of her claim, joint venture and agency, on the basis that the undisputed facts alleged by Akers in his motion: (1) negated the essential proof element of the appellant's claim, pled on a joint venture theory, that Akers had an equal right of control with respect to the shingling job; and (2) negated the essential proof element of her claim, pled on an agency theory, that Akers had the right to control the shingling job, because the summary judgment record supports inferences other than the inferences on which Akers relied for summary judgment, as to both theories of the appellant's claim pled. In Point II, she claims that the trial court erred in granting M. VanHolt's motion for summary judgment on Count III of her amended petition, as to both theories of her claim, joint venture and partnership, on the basis that the undisputed facts alleged in M. VanHolt's motion negated each of the essential proof elements of the appellant's claim, pled on a joint venture or partnership theory, because there is a genuine dispute as to the material facts on which M. VanHolt relied to negate the proof elements of the appellant's claim, on either theory pled, entitling him to summary judgment.

We reverse and remand.

Facts

On January 14, 2002, A. VanHolt was traveling, in his pickup truck, north on Missouri 13 Highway in St. Clair County, Missouri, to a roofing job at the Greyhound Apartments in Windsor, Missouri. A. VanHolt was doing business as Tony's Roofing. Traveling with him was Lynn Christensen, who had been hired by A. VanHolt to work on the roofing job. Christensen was riding in the front passenger seat and was repairing an air hose for A. VanHolt's nail gun. When Christensen returned the hose to the back seat, A. VanHolt turned to make sure that he did not place it on top of his bow and arrow. By the time he returned his attention to the road, it was too late to prevent his vehicle from colliding with the rear end of a vehicle being driven by the appellant's husband, Paul Firestone. As a result of the collision, Firestone suffered injuries resulting in his death on January 16, 2002.

The appellant filed a petition in St. Clair County for damages for the wrongful death of her husband. On September 27, 2002, after a change of venue, the appellant filed a first amended petition in the Circuit Court of Henry County. In Count I of her petition, she sought damages from A. VanHolt, alleging that his negligence caused the accident that caused her husband's death. In Count II, she sought damages from A. VanHolt's wife, Diane, alleging that she was a partner with her husband in Tony's Roofing and, therefore, was vicariously liable for his negligent acts in causing the death of the appellant's husband, because they were done in the ordinary course of business of Tony's Roofing. In Count III, she sought damages from M. VanHolt and his wife, Susan VanHolt, alleging that, as partners in the roofing business, they were vicariously liable for A. VanHolt's negligent acts in causing the death of the appellant's husband, because they were done in the ordinary course of business of either a joint venture or partnership entered into with A. VanHolt to complete the Greyhound Apartments roofing job. In Count IV, she sought damages from Akers, alleging that he was vicariously liable for A. VanHolt's negligent acts in causing the death of the appellant's husband, because they were done in the ordinary course of business of either a joint venture or an agency agreement with Akers to complete the Greyhound Apartments roofing job.

On May 7, 2003, Akers filed a motion for partial summary judgment. In the motion, he alleged uncontroverted facts which he claimed negated one or more of the proof elements of the appellant's claim pled against him, in Count IV, on either a joint venture or agency theory. On November 18, 2003, M. VanHolt and his wife filed a motion for summary judgment. In their motion, they alleged uncontroverted facts which they claimed negated one or more of the proof elements of the appellant's claim against them, in Count III, pled on either a joint venture or partnership theory.

On February 10, 2004, the trial court entered summary judgment in favor of Akers, M. VanHolt, and Susan VanHolt, which was amended on August 20, 2004. Both judgments were certified for early appeal, the court stating, "there is no just reason for delay pursuant to Rule 74.01(b) and states such Judgment shall be final and subject to appeal."

This appeal follows.

Summary Judgment Standard of Review

In reviewing the grant of a summary judgment, we review de novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

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. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.

Id. (citations omitted). Summary judgment will be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 380.

When considering appeals from summary judgments, the [c]ourt will review the record in the light most favorable to the party against whom judgment was entered. 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. We accord the non-movant the benefit of all reasonable inferences from the record.

Id. at 376 (citations omitted).

I.

In Point I, the appellant claims that the trial court erred in granting Akers' motion for summary judgment on Count IV of her amended petition, as to both theories of her claim, joint venture and agency, on the basis that the undisputed facts alleged by Akers in his motion: (1) negated the essential proof element of the appellant's claim, pled on a joint venture theory, that Akers had an equal right to control the Greyhound Apartments roofing job; and (2) negated the essential proof element of her claim, pled on an agency theory, that Akers had the right to control the Greyhound Apartments roofing job, because the summary judgment record supports inferences other than the inferences on which Akers relied for summary judgment, as to both theories pled as to the appellant's claim. We agree.

Pursuant to Rule 74.04, to be entitled to summary judgment, the movant must show that: (1) there is no genuine dispute as to the material facts on which the movant is relying for summary judgment; and (2) based on those undisputed facts, the movant is entitled to judgment as a matter of law. Rule 74.04; ITT Commercial Fin. Corp., at 380; Childress Painting & Assocs., Inc. v. John Q. Hammons Hotels Two L.P., 106 S.W.3d 558, 561 (Mo.App. 2003).

If the movant is a defending party, . . . a prima facie case for summary judgment can be established by employing one or more of three means: (1) showing undisputed facts that negate any one of the plaintiff's required proof elements; (2) showing that the plaintiff, after an adequate period of discovery, has not produced and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of one or more of the plaintiff's proof elements; or (3) showing that there is no genuine dispute as to the existence of...