Hartford Acc. and Indem. Co. v. M.J. Smith Sawmill, Inc.

• Decision Date: 31 August 1994
• Docket Number: No. 19029,19029
• Citation: 883 S.W.2d 91
• Parties: HARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff-Respondent, v. M.J. SMITH SAWMILL, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 91

883 S.W.2d 91

HARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff-Respondent, v. M.J. SMITH SAWMILL, INC., Defendant-Appellant.

No. 19029.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 31, 1994.

Jerry Kenter, John B. Boyd, Connaughton, Boyd & Kenter, P.C., Kansas City, for appellant.

Douglas S. Evans, Evans & Green, Springfield, for respondent.

FLANIGAN, Judge.

Plaintiff Hartford Accident and Indemnity Company brought this action against defendant M.J. Smith Sawmill, Inc. Count I of the four-count petition sought recovery for unpaid premiums on a workers' compensation insurance policy issued by plaintiff to defendant. The amount sought was the difference between the initial deposit, or estimated premium, paid by defendant and the amount of the premium earned for the period January 12, 1988, to January 12, 1989. Count II sought similar relief for the period January 12, 1990, to September 7, 1990. Count III sought similar relief on a separate policy for the period September 7, 1990, to September 7, 1991, and Count IV sought recovery on the separate policy for the period September 7, 1991, to September 7, 1992.

Defendant filed an answer which denied certain allegations of each count and alleged some affirmative defenses. Defendant also filed a seven-count counterclaim.

On July 22, 1993, plaintiff filed a document, directed to the counterclaim, entitled "Motion to Dismiss or in the Alternative for Partial Summary Judgment." The motion sought dismissal on the ground that each count of the counterclaim failed to state a claim upon which relief can be granted. The motion also stated: "Plaintiff is entitled to partial summary judgment on defendant's counterclaim and amendments thereto as a matter of law." On August 19, 1993, the trial court entered an order sustaining both prongs of plaintiff's motion and, pursuant to Rule 74.01(b), ¹ made an express determination "that there is no just reason for delay." Defendant appeals.

Defendant asserts that the trial court erred in sustaining both prongs of plaintiff's motion. For the reasons which follow, this court holds that the portion of plaintiff's motion which sought summary judgment was defective and that plaintiff was not entitled to dismissal of the counterclaim on the ground that it failed to state a claim upon which relief can be granted.

Rule 74.04, dealing with summary judgment procedure, was amended effective January 1, 1994. Rule 74.04(c)(1) prescribes the form for a motion for summary judgment. Plaintiff's motion for summary judgment did not comply with Rule 74.04(c)(1), in its pre-1994 form, which was in effect at the time of the proceedings below, and required a motion for summary judgment to "state with particularity the grounds therefor." ² In Johns v. Continental Western Ins. Co., 802 S.W.2d 196, 197 (Mo.App.1991), this court, referring to that provision, said:

"The plain purpose of that requirement is to apprise the opposing party and the trial court (and in turn the appellate court) of the specific basis on which the movant claims he is entitled to summary judgment. With the issues so focused, the opposing party may prepare his defense to the motion and the trial court may make an informed ruling. If the motion is sustained and the opposing party appeals, the issues are clear-cut. The appellate court need not speculate concerning the grounds on which summary judgment was granted. All this serves to expedite the disposition of the case. A motion for summary judgment which fails to meet the requirement is defective."

The reason for the "particularity" requirement is obvious in this case. The legal file, filed by defendant, is 548 pages long and includes the pleadings, several depositions, and several sets of interrogatories and answers to interrogatories. Plaintiff, as respondent here, has filed a supplemental legal file which is 71 pages long.

Plaintiff's motion did not "state with particularity the grounds" on which it sought summary judgment with respect to the counterclaim. The motion stated that its "basis" was set forth in attached suggestions. The suggestions are 18 pages long. They do not state, "with particularity," the grounds on which summary judgment was sought. The portion of plaintiff's motion which sought summary judgment is defective.

It is not the function of this court to comb the voluminous record to determine whether a properly drafted motion for summary judgment directed to the counterclaim would be meritorious. Since plaintiff's motion for summary judgment was defective, that portion of the trial court's judgment sustaining it is erroneous and is reversed. On remand, plaintiff, if so advised, may renew its attempt to obtain a summary judgment.

The remaining inquiry is whether the trial court erred, as defendant asserts, in dismissing the counterclaim on the ground that it failed to state a claim upon which relief can be granted.

"A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader claims to be entitled." Rule 55.05. The sufficiency of a counterclaim to state a claim for relief is determined by the same test which is used to determine the sufficiency of a petition.

When a petition is attacked by motion to dismiss for failure to state a claim, the mere conclusions of the pleader are not admitted. The facts alleged, however, are taken to be true and the pleader is entitled to all inferences fairly deducible therefrom. If such facts and inferences, viewed most favorably from plaintiff's standpoint, show any ground for relief, the petition should not be dismissed. A petition is sufficient when its allegations invoke principles of substantive law which may entitle plaintiff to relief. Boyd v. Lane, 869 S.W.2d 305, 306 (Mo.App.1994). If the words "counterclaim" and "defendant" are substituted respectively for "petition" and "plaintiff," the foregoing principles apply here.

A party may set forth two or more statements of a claim, alternatively or hypothetically, either in one count or in separate counts. Rule 55.10. When two or more statements are made in the alternative and if one of them independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may state as many separate claims as he has, regardless of consistency and whether based on legal or equitable grounds. Id. All pleadings shall be so construed as to do substantial justice. Rule 55.24.

"A petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Euge v. Golden, 551 S.W.2d 928, 931 (Mo.App.1977). 'The ruling [on a motion to dismiss] is ordinarily confined to the face of the petition which is construed in a light favorable to plaintiff.' " American Drilling v. City of Springfield, 614 S.W.2d 266, 271 (Mo.App.1981).

Each count of the counterclaim contains a caption which purports to label the claim being asserted. ³ It is unnecessary to summarize all of the counts. If facts are stated showing any ground for relief, the trial court's ruling was erroneous.

The counterclaim contains 33...