Gladis v. Rooney, ED74742

• Decision Date: 03 August 1999
• Docket Number: ED74742
• Citation: 999 S.W.2d 288
• Parties: This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. George J. Gladis and Mary L. Gladis, Plaintiffs/Appellants, v. Robert J. Rooney and Charlene G. Rooney, et al., Defendants/Respondents. Case Number: 74742 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

George J. Gladis and Mary L. Gladis, Plaintiffs/Appellants v Robert J. Rooney and Charlene G. Rooney, et al., Defendants/Respondents

Case Number: 74742

Missouri Court of Appeals Eastern District

Handdown Date: 08/03/99

Appeal From: Circuit Court of St. Louis County, Hon. Kenneth M. Romines

Counsel for Appellant: William James O'Herin

Counsel for Respondent: Thomas C. Croft

Opinion Summary: Plaintiffs George and Mary Gladis appeal the summary judgment in favor of Defendants Robert and Charlene Rooney in their action seeking a partnership accounting.

REVERSED AND REMANDED.

Division Two holds: Defendants' claims-- that the corporation conducted all transactions and that Defendants never acted in a personal capacity-- are not defenses to Plaintiffs' action seeking a partnership accounting. If the corporation was merely a conduit for the partnership, as Plaintiffs allege, the partnership will still have to account for any profits it received from the corporation.

Opinion Author: Lawrence G. Crahan, Judge

Opinion Vote: REVERSED AND REMANDED. J. Dowd, P.J., and Teitelman, J., concur.

Opinion:

George and Mary Gladis ("Plaintiffs") appeal the summary judgment in favor of Robert and Charlene Rooney ("Defendants") in their action for a partnership accounting. We reverse and remand.

This Court's review of a summary judgment is essentially de novo. ITT Commercial Finance Corp. v. Mid-America 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. 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. The non-movant is accorded the benefit of all reasonable inferences from the record. Id. The facts are reviewed in the light most favorable to the party against whom judgment is entered. Id.

The requirements for motions for summary judgment are set forth in Rule 74.04. The Rule requires the moving party to "state with particularity the grounds" for the motion. Id. at 380. "Insofar as the movant's right to judgment as a matter of law depends upon the presence or absence of certain facts, the movant must also establish by reference to the record when appropriate, that there is no genuine dispute about those material facts." Id.

The facts of this case are difficult to ascertain from the record. The trial court treated Defendants' motion to dismiss as a motion for summary judgment and ordered Plaintiffs to file a response. Rule 55.27(a) provides that the trial court may treat a motion to dismiss for failure to state a claim as a motion for summary judgment under Rule 74.04. Defendants' motion, however, does not comply with Rule 74.04(c) which governs summary judgment. The motion does not reference the record and thus does not identify undisputed facts. Although Rule 55.27(a) does not specifically require it, we urge trial courts acting pursuant to that rule to have the moving party refile the motion in compliance with Rule 74.04(c) and then order the opposing party to follow the requirements of Rule 74.04.

It appears that in 1987 Plaintiffs and Defendants formed a partnership to purchase, develop and sell real estate for profit. Two weeks after signing the partnership agreement, Plaintiffs and Defendants formed a corporation for the same purpose. Defendants put up the initial capital for the partnership. According to the terms of the partnership agreement, Plaintiff George Gladis was to be salaried until the completion of the first development project. The income was to be shared equally after the profits from the first project had been received.

It is not entirely clear whether the corporation was owned by the partnership or by the individual members of the partnership. The corporation held title to the real estate and was the conduit for the business. In 1989, Plaintiffs and Defendants executed an instrument that extended the life of the partnership until November 1997. At some point in 1990, Plaintiffs and Defendants had a falling out and Plaintiffs were excluded from the...