Glasgow v. Cole, ED 80360.
| Decision Date | 10 September 2002 |
| Docket Number | No. ED 80360.,ED 80360. |
| Citation | 88 S.W.3d 114 |
| Parties | William GLASGOW, Appellant/Cross-Respondent, v. Margaret A. COLE, Respondent/Cross-Appellant. |
| Court | Missouri Court of Appeals |
Thomas A. Connelly, St. Louis, MO, for Appellant.
Sanford Goffstein, Robert E. Tucker, Goffstein, Raskas, Pomerantz, Kraus & Sherman, L.L.C., St. Louis, MO, for Respondent.
Margaret A. Cole appeals the trial court's judgment granting William Glasgow's motion for summary judgment and denying her motion for summary judgment on Glasgow's claim against her for breach of an insurance contract. In addition, Glasgow appeals the trial court's amended judgment reducing the amount of prejudgment interest to the date the motion for summary judgment was filed.
On appeal, Cole contends that the trial court erred in sustaining Glasgow's motion for summary judgment and denying her motion because the evidence established that any recovery on Glasgow's claim would have been barred in that: 1) the property was unoccupied prior to the fire for a period beyond sixty days and thus subject to a policy exclusion of unoccupied properties; and 2) Glasgow's application contained false statements regarding the occupancy of his property and, therefore, was subject to exclusion. In his cross-appeal, Glasgow contends the trial court did not err in granting summary judgment but did err in amending the judgment by reducing the amount of prejudgment interest to the date the motion for summary judgment was filed, as opposed to the day after the fire. We reverse and remand.
We note that although Cole appeals the denial of her summary judgment motion, such appeal is not subject to appellate review. Estate of Knapp v. Newhouse, 894 S.W.2d 204, 208 (Mo.App. E.D.1995). As such, our review of Cole's point on appeal will focus only on the trial court's sustaining of Glasgow's motion for summary judgment.
Appellate 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). When considering appeals from summary judgments, the Court will review the record in the light most favorable to the party against whom judgment was entered. Id. To prevail on a motion for summary judgment, the movant must establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Id. at 377.
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. ITT at 376. The propriety of summary judgment is purely an issue of law. Id. 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 record, in the light most favorable to the non-movant, reveals that on April 2, 1998, Glasgow, a real estate developer, acquired property located at 2415 Wheaton from Glasgow Enterprises, Inc. for the purposes of rehabbing it and either renting or selling it. On June 24, 1998, Patrick McQuay, a subcontractor for Glasgow, ordered property insurance by phone in the amount of $60,000 for the Wheaton property from Margaret A. Cole, a registered broker for Med James, Inc., a managing agent for Universal Fire & Casualty Insurance Co. (UF & C).
On June 25, 1998, Glasgow signed a UF & C Dwelling Fire Application which provided in pertinent part:
DWELLING FIRE RISK CHARACTERISTICS
* * * * *
8. Dwelling under construction, rehabilitation, or vacant? ... No
* * * * *
RATING INFORMATION
Occupancy: ___ Owner x Tenant ___ Seasonal
If NEW purchase, when to occupy? ... Tenant Occupied
* * * * *
All coverages in our Dwelling Fire Program are subject to exclusions or limitations. We want to bring certain items to your attention. Exact wording of exclusions and limitations can be found in the policy. These are NOT the only exclusions or limitations in our policy. ...
This application will only bind coverage if it conforms with all binding authority guidelines....
I DECLARE the information given on this application is true and exact to the best of my knowledge. I agree that this application shall constitute a part of the policy issued whether attached or not; and any willful concealment or misrepresentation of a material fact or circumstance shall void any policy issued based on the statements provided herein. I have read and understand the above listed policy exclusions and limitations.
Upon receipt of the application, Cole signed on June 25, 1998, as Broker and OF & C Agent. Pursuant to the application and paid premium of $660.00, Glasgow received "Evidence of Property Insurance," signed on June 25, 1998, by Cole, providing in part:
THIS IS EVIDENCE THAT INSURANCE AS IDENTIFIED BELOW HAS BEEN ISSUED, IS IN FORCE, AND CONVEYS ALL THE RIGHTS AND PRIVILEGES AFFORDED UNDER THE POLICY.
The effective dates stated on Evidence of Property Insurance were June 25, 1998 to June 25, 1999. Evidence of Property Insurance also included a cancellation provision which provided, "the policy is subject to the premiums, forms, and rules in effect for each policy period...."
On the night of June 28, 1998, the Wheaton property was damaged by fire. Subsequently, Glasgow filed a report of loss with Cole, who faxed a Report of Loss to Med James, Inc. on July 1, 1998, which was received on July 2, 1998. However, Med James, Inc. did not receive Glasgow's application until July 6, 1998. Immediately upon receipt, Med James, Inc. sent a letter to Cole rejecting the application for the following reasons: 1) required front and rear photos were not submitted with Glasgow's application; and 2) the application was not postmarked within three days of the requested effective date.
On June 2, 2001, Glasgow filed a breach of contract action against Cole. In his petition, Glasgow asserted that Evidence of Property Insurance was effective as of June 25, 1998, insuring against fire loss in the sum of $60,000 and that Cole refused payment. Cole filed her answer denying virtually all of Glasgow's allegations and setting forth affirmative defenses including: 1) breach of Glasgow's obligations and conditions purported in the contract; 2) void policy due to material misrepresentations on the application; and 3) ineligibility of coverage due to the Wheaton property's vacancy at the time of application.
On July 3, 2001, Glasgow filed a motion for summary judgment, generally setting forth facts in which there was no material issue. However, he alleged certain facts stating in pertinent part:
* * * * *
17. Since the loss, the Wheaton property has been repaired at a cost of $58,508.51 (Exh. 8 attached hereto).
18. On 23 June 1998, a residential lease was executed between Plaintiff and tenants Rosemary Brown arid Yolanda Rickmon (Tenants) at the monthly rent of $500.00 per month (Glasgow Aff'd., par. 6; Exh. 11 attached hereto).
19. Brown and Rickmon (the Tenants) began moving into the property on either 24 or 25 June 1998 and had moved in furniture and appliances including, a stove and refrigerator, prior to 28 June 1998 .
20. After the fire, the Tenant's property including furniture, the stove refrigerator, clothing and toys were observed in the burned premise . For example, there was a refrigerator in the kitchen, a couch in the front room, a bed in the first bedroom, a bed in the second bedroom and boxes of "stuff" in the third bedroom. There was a dresser in the second bedroom and there were a "lot of clothes" and "lot of kids' toys" .
21. The tenants took possession and had commenced moving their possessions into the property on 24 or 25 June 1998 (Glasgow Aff'd. par. 7; Exh. 10: McQuay depo. pg. 32, Ins. 307; Exh. 11: Harris depo. pg. 17, 18).
* * * * *
In support of his motion for summary judgment, Glasgow attached Exhibit 8, filed copies of receipts and checks of Glasgow Enterprises, Inc., showing the costs of repairing the Wheaton property. However, Exhibit 8, which contained a total of more than $58,508.51, does not set forth the checks and bills in an order that it can be ascertained without significant effort if the checks are for payment of the attached bills or for payment of bills or debts that are not attached. Further, on some bills the amounts are not clearly legible.
Glasgow also filed his affidavit stating that a residential lease was executed on June 23, 1998, and that on either June 24 or 25 the tenants began moving their furniture and appliances including their own stove and refrigerator into the Wheaton property. He further filed the deposition testimony of Patrick McQuay, who testified that he witnessed the tenants moving belongings into the Wheaton property approximately one week before the fire. In addition, Glasgow included the deposition testimony of Flarzell Harris, who...
To continue reading
Request your trial
-
Mika v. Central Bank of Kansas City
...submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment. Id. Glasgow v. Cole, 88 S.W.3d 114, 115 (Mo. App. E.D.2002). Respondents claimed in their motions for summary judgment that Appellants' claims were barred by the credit agreement s......
-
Holzhausen v. Bi-State Dev. Agency
...to admit or deny a fact does not raise an issue of material fact, and therefore, the fact is deemed admitted. Glasgow v. Cole, 88 S.W.3d 114, 117 (Mo.App.2002). Further, a denial must be supported “with specific references to the discovery, exhibits or affidavits that demonstrate specific f......
-
Holzhausen v. BI-State Dev. Agency
...to admit or deny a fact does not raise an issue of material fact, and therefore, the fact is deemed admitted. Glasgow v. Cole, 88 S.W.3d 114, 117 (Mo.App. 2002). Further, a denial must be supported "with specific references to the discovery, exhibits or affidavits that demonstrate specific ......
-
Glasgow v. Cole
...this Court on appeal. In the first appeal, we reversed the trial court's grant of summary judgment in favor of Glasgow. Glasgow v. Cole, 88 S.W.3d 114 (Mo.App. E.D.2002). 2. Cole requested a new trial on all issues. She was aggrieved by the court's grant of a new trial on damages only. Stit......