IN RE MARRIAGE OF BUSCH, No. ED 93255.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtEllen W. Dunne, Blitz Bardgett & Deutsch, L.C., St. Louis, MO, for respondent
Citation310 SW 3d 253
Decision Date27 April 2010
Docket NumberNo. ED 93255.
PartiesIn re the MARRIAGE OF Ann S. BUSCH and Adolphus August Busch, IV Ann S. Busch, Petitioner/Appellant, v. Adolphus August Busch, IV, Respondent/Respondent.

310 SW 3d 253

In re the MARRIAGE OF Ann S. BUSCH and Adolphus August Busch, IV
Ann S. Busch, Petitioner/Appellant,
v.
Adolphus August Busch, IV, Respondent/Respondent.

No. ED 93255.

Missouri Court of Appeals, Eastern District, Division One.

April 27, 2010.


310 SW 3d 258

Allan H. Zerman, Stephanie L. Jones, Joseph J. Kodner, Zerman & Mogerman LLC, Clayton, MO, for appellant.

Ellen W. Dunne, Blitz Bardgett & Deutsch, L.C., St. Louis, MO, for respondent.

KATHIANNE KNAUP CRANE, Presiding Judge.

Wife filed a motion to enforce a dissolution decree. Husband moved to dismiss wife's motion. The trial court granted husband's motion to dismiss, treated it as a motion for judgment on the pleadings, and entered judgment on the pleadings. Wife challenges the entry of judgment on the pleadings, arguing that her motion stated a claim for relief and raised issues of fact that could not be resolved by judgment on the pleadings. We reverse and remand.

On July 7, 2008, wife, Ann S. Busch, filed a motion to compel husband, Adolphus A. Busch, IV, to comply with the parties' dissolution decree. In her motion, wife alleged that the parties had been granted a judgment of legal separation on July 21, 2004 that incorporated the parties' Property Settlement and Separation Agreement (the Property Agreement). She further alleged that on April 7, 2008, the judgment of legal separation was converted by consent to a judgment of dissolution, and the Property Agreement was incorporated therein. As relevant to this appeal, wife alleged that husband had failed to comply with specific provisions of the Property Agreement relating to her awards of one-half of: (1) husband's interest in certain limited liability companies and a limited partnership; (2) husband's interest in the preferred stock of Kinexus Corporation; (3) two promissory notes payable to husband from Eager Road Associates, Inc.; and (4) husband's beneficial interest in one-half of the proceeds of a note receivable from Silver Eagle Distributors, Inc., and husband's obligations on a note payable to Silver Eagle Distributors, Inc. Wife alleged that Paragraph 8.3 of the Property Agreement ordered each party to cooperate in furnishing to the other party all information in his or her respective possession or control as is required by each of them that may be necessary for the timely filing of state and/or federal income tax returns. Wife further alleged that each party agreed in Paragraph 10.4 of the Property Agreement to execute all documents and to do all things necessary to accomplish and give effect to the provisions of the Property Agreement. Wife sought an order compelling husband to provide to her all documentation and information to which she was entitled under the Property Agreement, along with an award of attorney's fees and costs, and such other relief to which she may be entitled.

Husband subsequently moved to dismiss wife's motion to compel. After hearing argument, the trial court entered a judgment in which it granted husband's motion to dismiss, treated it as a motion for judgment on the pleadings, and entered judgment on the pleadings. The trial court subsequently overruled wife's motion to amend the judgment. Wife appeals.

DISCUSSION

On appeal, wife first asserts that the trial court erred in granting judgment on

310 SW 3d 259
the pleadings in husband's favor because her motion to compel stated a claim for relief and raised numerous factual issues, making a judgment on the pleadings inappropriate. Because this point is dispositive, we do not reach wife's remaining point

APPLICABLE LAW

1. Judgment on the Pleadings

The trial court treated the motion to dismiss as a motion for judgment on the pleadings and entered judgment on the pleadings. A motion for judgment on the pleadings is authorized by Rule 55.27(b), which provides:

Motion for Judgment on the Pleadings. After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 74.04.

A motion for judgment on the pleadings is of common law origin, and it is not favored by the courts. McIntosh v. Foulke, 360 Mo. 481, 228 S.W.2d 757, 761 (1950). Such a motion may be sustained only when,

"under the conceded facts, a judgment different from that pronounced could not be rendered notwithstanding any evidence which might be produced. In other words, it cannot be sustained unless, under the admitted facts the moving party is entitled to judgment, without regard to what the findings might be on the facts upon which issue is joined."

Id. (quoting 41 AM.JUR. Pleading § 336). Judgment on the pleadings is only appropriate when the question before the court is strictly one of law. Eaton v. Mallinckrodt, Inc., 224 S.W.3d 596, 599 (Mo. banc 2007). "`The question presented by a motion for judgment on the pleadings is whether the moving party is entitled to judgment as a matter of law on the face of the pleadings.'" Id. (quoting RGB2, Inc. v. Chestnut Plaza, Inc., 103 S.W.3d 420, 424 (Mo.App.2003)). A trial court should not sustain a motion for judgment on the pleadings if a material issue of fact exists. Madison Block Pharmacy v. U.S. Fidelity, 620 S.W.2d 343, 345 (Mo. banc 1981).

A right to judgment on the pleadings must be established by the allegations in the opposing party's pleadings. Matters quoted in, attached to, or incorporated by reference into the pleadings may be considered. McIntosh, 228 S.W.2d at 761; Messner v. American Union Ins. Co., 119 S.W.3d 642, 648 (Mo.App.2003). However, matters not properly incorporated into the pleadings may not be considered. Messner, 119 S.W.3d at 648-49. A trial court may not consider unpleaded matters by taking judicial notice of them. Ralph D'Oench Co. v. St. Louis County Cleaning & Dye. Co., 358 Mo. 1072, 218 S.W.2d 609, 611-12 (1949).

The party that moves for judgment on the pleadings admits, for purposes of the motion, the truth of all well-pleaded facts in the opposing party's pleadings. Eaton, 224 S.W.3d at 599; State ex rel. Nixon v. American Tobacco Co., 34 S.W.3d 122, 134 (Mo. banc 2000); Madison Block, 620 S.W.2d at 345. The motion admits only the well-pleaded facts, not the pleader's conclusions or construction of the subject matter. Hunter v. Delta Realty Co., 350 Mo. 1123, 169 S.W.2d 936, 938 (1943); Grove v. Sutliffe, 916 S.W.2d 825, 828 (Mo.App.1995); Helmkamp v. American

310 SW 3d 260
Family Mutual Insurance Co., 407 S.W.2d 559, 565-66 (Mo.App.1966)

A motion for judgment on the pleadings shares similarities with a motion to dismiss for failure to state a claim, but it is also distinct. A defending party who makes a motion for judgment on the pleadings is in the same position as a defending party who makes a motion to dismiss for failure to state a claim. In both situations, the defending party's position is that even if all of plaintiff's well-pleaded facts are true, they are insufficient as a matter of law. Nixon, 34 S.W.3d at 134. However, a motion to dismiss is made before the filing of an answer; whereas a motion for judgment on the pleadings is not made until the pleadings are closed. Further, if a court sustains a motion to dismiss, it "shall freely grant leave to amend." Rule 67.06. See Costa v. Allen, 274 S.W.3d 461, 463-64 (Mo. banc 2008). However, a motion for judgment on the pleadings contemplates a final judgment on the merits. Essen v. Adams, 342 Mo. 1196, 119 S.W.2d 773, 777 (1938).

When the defending party is the moving party for judgment on the pleadings, the allegations of the opposing party's petition or motion seeking relief are admitted for the purposes of the defending party's motion. Nixon, 34 S.W.3d at 134; RGB2, Inc., 103 S.W.3d at 424. The facts pleaded in the defending party's responsive pleading are not admitted and are not self-proving. RGB2, Inc., 103 S.W.3d at 424. It is error for a trial court to grant judgment on the pleadings based on a factual allegation in the responsive pleading. Id. at 424-25.

In this case, wife filed the motion to compel, and husband filed the motion to dismiss that the trial court treated as a motion for judgment on the pleadings. Therefore, wife's factual allegations are deemed admitted, and husband's factual allegations are deemed denied for the purposes of determining whether husband is entitled to judgment on the pleadings. See id. We treat the Property Agreement as incorporated by reference into wife's motion because it was part of the trial court file and pleaded in the motion. See Twehous Excavating v. L.L. Lewis, 295 S.W.3d 542, 546 (Mo.App.2009).

We will affirm a judgment on the pleadings only "if the facts pleaded by the petitioner, together with the benefit of all reasonable inferences drawn therefrom, show that petitioner could not prevail under any legal theory." Messner, 119 S.W.3d at 644. See also Lynch v. Missouri Dept. of Corrections, 267 S.W.3d 796, 798 (Mo.App.2008). Conversely, we will reverse if, on the face of the pleadings, an issue of fact exists, see McGuire v. Director of Revenue, 174 S.W.3d 87, 89 (Mo.App.2005), or if the allegations in the non-movant's pleadings show that the non-movant could prevail under some legal theory. See Lone Star Industries, Inc. v. Howell Trucking, Inc., 199 S.W.3d 900, 906-07 (Mo.App.2006); Messner, 119 S.W.3d at 646-47.

2. Enforcement and Interpretation of Settlement Agreements

The Property Agreement sought to be enforced was part of a settlement and separation agreement incorporated into a dissolution decree. Parties to a settlement agreement incorporated into a dissolution decree may bind themselves to obligations that the dissolution...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT