Horwitz v. Horwitz

• Decision Date: 11 January 2000
• Citation: 16 S.W.3d 599
• Parties: (Mo.App. E.D. 2000) Julie Lynn Horwitz, Appellant v. Todd Alexander Horwitz, Respondent Case Number: ED75504 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

16 S.W.3d 599 (Mo.App. E.D. 2000)

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

Julie Lynn Horwitz, Appellant v. Todd Alexander Horwitz, Respondent

Case Number: ED75504

Missouri Court of Appeals Eastern District

Handdown Date: 01/11/2000

Appeal From: Circuit Court of St. Louis County, Hon. Barbara W. Wallace

Counsel for Appellant: Mark G. Arnold

Counsel for Respondent: Dean R. Gallego

Opinion Summary: Julie L. Horwitz("Wife") appeals from the dismissal of her tort claims and claim for necessaries ("Tort Claims") against her ex-husband Todd A. Horwitz, ("Husband"), stemming from the couple's seven-year marriage.

AFFIRMED.

Division Three Holds: (1) The question whether the trial court erred in sequencing Husband's dissolution case prior to Wife's Tort Claims is not preserved for appellate review; (2)the trial court correctly dismissed Wife's breach of fiduciary duty claim; (3)the trial court did not err in dismissing Wife's claim for necessaries, as such claim should have been joined and tried with her counterclaim for dissolution of marriage; and (4) Wife abandoned her arguments regarding her remaining seven tort claims by failing to comply with Rule 84.13(a).

Opinion Author: Lawrence E. Mooney, Judge

Opinion Vote: AFFIRMED.Simon, P.J., and Crane, J., concur.

Opinion:

Julie L. Horwitz, ("Wife") appeals the dismissal of her tort claims and claim for necessaries ("Tort Claims")¹ against her ex-husband Todd A. Horwitz, ("Husband"), stemming from the couple's seven-year marriage.Wife contends that the trial court erred in dismissing her Petition on grounds of res judicata/collateral estoppel because: (1) hearing Husband's dissolution action prior to Wife's Tort Claims deprived Wife of her right to a jury trial; (2) Wife's Tort Claims are not the same causes of action as Husband's dissolution case; and (3) collateral estoppel does not bar Wife's separate Tort Claims in that the trial court's findings in the dissolution case were neither necessary to that judgment nor inconsistent with her Tort Claims.Alternatively, Wife argues that the trial court erred in dismissing her lawsuit for failure to state a claim upon which relief may be granted, because Counts I, III, IV, V, and VIII of her petition allege the essential elements of the respective claims pleaded.We affirm.

Facts

Husband and Wife were married on August 27, 1989, and lived together in St. Louis County, where they raised their two children.During their marriage, Husband attended and completed medical school, becoming a board-certified physician in internal medicine.Wife's parents made substantial monetary gifts to the couple while Husband completed medical school, and such funds were placed in joint bank accounts giving both parties equal access to the monies.In late March 1994, less than one month before Husband filed for divorce, he withdrew $78,121.75 from these accounts and transferred the money to a new joint account under his name and his mother's name.Wife was unaware of this transaction.

Husband filed a Petition for Dissolution of Marriage("Dissolution Petition") on April 7, 1994, alleging the marriage was irretrievably broken and that there was no reasonable likelihood that it could be preserved.However, Husband did not have Wife immediately served with the Dissolution Petition, but instead instructed the clerk and sheriff to hold service.Two months later, during June 1994, Husband informed Wife that he had accepted a cardiologist position in Florida, and the couple argued over the issue of relocation.

According to Wife, at that time Husband informed Wife that he had filed for divorce; Husband moved out of the marital residence on June 17, 1994.

Wife later filed a lawsuit against Husband alleging the following Tort Claims: Count I, breach of confidential or fiduciary relationship by deception and fraud; Count II, battery; Count III, recovery of necessary expenses; Count IV, intentional infliction of emotional distress; and Count, V, negligent infliction of emotional distress.Wife later filed an Amended Petition, adding Count VI, violation of Missouri Wiretap Law; Count VII, violation of Federal Wiretap Act; Count VIII, private nuisance; and Count IX, invasion of privacy.

Approximately fourteen months after initially filing the Dissolution Petition, Wife was served.Wife filed a counterclaim for dissolution of marriage, requesting spousal maintenance, sole physical and legal custody of the couple's two children, and child support from Husband.

Husband sought joinder of the dissolution action with Wife's Tort Claims.Despite Wife's opposition to joinder, the trial court granted Husband's motion to join and conducted a bench trial in the dissolution case.

The trial court issued a judgment/decree of dissolution in December 1996, making detailed findings of facts regarding the couple's marriage.Husband then filed a motion to dismiss Wife's Tort Claims on the grounds of res judicata, collateral estoppel and failure to state a claim upon which relief may be granted.The trial court, taking judicial notice of the record and judgment in the dissolution, granted Husband's motion and dismissed Wife's Tort Claims.Wife appealed, but this court dismissed that appeal because the trial court had not entered a final appealable judgment in that the order was not denominated a judgment in compliance with Rule 74.01(a).T.A.H. v. J.L.H., 969 S.W.2d 338(Mo.App. E.D.1998).

On remand, Husband again filed a motion to dismiss, asking the court to take judicial notice of the findings in the dissolution case.The trial court did so and issued an order denominated "Judgment" sustaining Husband's motion to dismiss without specifying the grounds for its ruling.Wife subsequently filed this timely appeal.

Analysis

In his motion to dismiss, Husband requested the trial court take judicial notice of the record and its findings of facts and conclusions in the dissolution matter, and the trial court expressly stated in its judgment on Husband's motion to dismiss that it would do so.Therefore, we will treat the trial court's grant of Husband's motion to dismiss as a motion for summary judgment as the trial court considered matters outside the pleadings when rendering its judgment on the matter.Rule 55.27;Wehmeier v. Triplett and Kaller, 741 S.W.2d 734(Mo.App. E.D.1987).

Appellate review of the propriety of summary judgment is de novo.Easy Returns Midwest, Inc. v. Schultz, 964 S.W.2d 450, 453(Mo.App. E.D.1998).Summary judgment will be affirmed if the reviewing court determines that no genuine issue of material fact exists and the movant has a right to judgment as a matter of law.Gladis v. Rooney, 999 S.W.2d 288, 289(Mo.App. E.D.1999).Viewing the record in the light most favorable to Wife, we now turn to her allegations of error on appeal.

Wife's first complaint is that the trial court erred in hearing Husband's dissolution case before her Tort Claims, in that such sequencing deprived Wife of her right to a jury trial.

However, our review of the legal file fails to disclose any record of the trial court being explicitly asked to rule on Wife's sequencing argument.While Wife may have objected to the sequencing of the two trials in her Memorandum in Opposition to Defendant's Motion to Join, the record fails to disclose evidence of an express ruling by the trial court on this issue.Allegations of error that have not been presented to or expressly decided by the trial court shall not be considered on appeal.Section512.160 RSMo.(1994).Therefore, the issue presented is not properly preserved for appellate review.

Wife next argues, in separate points relied on, that the trial court erred in dismissing her Tort Claims because neither res judicata nor collateral estoppel bars her causes of action, nor does she fail to state a claim upon which relief could be granted.Again, the trial court dismissed Wife's Tort Claims without specifying the grounds on which it was doing so.When the trial court fails to specify its reasons for dismissing a petition, we presume the trial court acted for one of the reasons stated in the motion to dismiss.Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 125(Mo.App. E.D.1999)."In addition, we will affirm the order of dismissal if any ground supports the motion, regardless of whether the trial court relied on that ground."Id., quotingCity of Chesterfield v. Deshetler Homes, Inc., 938 S.W.2d 671, 673(Mo.App. E.D.1997).

Because Husband argued in his motion to dismiss that Wife's Tort Claims are barred by res judicata, collateral estoppel or failure to state a claim, we will affirm the trial court's judgment if Wife's claims should have been dismissed for any reason.Accordingly, we must examine each claim in turn to determine whether it is barred for any reason.

Breach of Fiduciary Duty

In order to state a claim for breach of fiduciary duty, both the existence of a confidential or fiduciary relationship between husband and wife and a breach of such relationship must be shown.Mahler v. Tieman, 550 S.W.2d 623, 628(Mo.App. E.D.1977);Bogert on Trusts, section498, p. 268-269.A confidential or fiduciary relationship exists when a special confidence is reposed in one party and there is resulting domination of or influence on the other party.Fix v. Fix, 847 S.W.2d 762, 765(Mo. banc 1993).A confidential, or fiduciary, relationship is not proven merely by a showing that the persons have ties of blood or family.Misskelly v. Rogers, 721 S.W.2d 170, 172(Mo.App. W.D.1986).Under Missouri law, the primary question is whether one family member has dominion over the other family member in regard to the transaction involved.Fix, 847 S.W.2d at 766, citingMisskelly, 721 S.W.2d at 172.

Wife alleges that Husband owed her a fiduciary duty in two respects, one arising from the marital relationship and his failure to disclose the...