Johnson v. Johnson

• Citation: 764 S.W.2d 711
• Decision Date: 31 January 1989
• Docket Number: No. 53687,53687
• Parties: In re the Marriage of Sharon Ann JOHNSON, Petitioner/Appellant, v. Peter David JOHNSON, Respondent/Respondent, and Vernedda Johnson, Third-Party Respondent/Respondent.
• Court: Court of Appeal of Missouri (US)

Page 711

764 S.W.2d 711

In re the Marriage of Sharon Ann JOHNSON, Petitioner/Appellant, v. Peter David JOHNSON, Respondent/Respondent, and Vernedda Johnson, Third-Party Respondent/Respondent.

No. 53687.

Missouri Court of Appeals,

Eastern District,

Southern Division.

Jan. 31, 1989.

David P. Senkel, Hillsboro, for petitioner/appellant.

Kevan L. Karraker, Farmington, for Vernedda Johnson.

Randall S. Parker, St. Louis, for Peter D. Johnson.

SATZ, Judge.

This is a dissolution action. The wife's mother-in-law claims ownership of the stock and assets of a corporation which, the wife alleges, are marital property. The wife joined the mother-in-law as a "third-party respondent". The trial court granted the mother-in-law's motion for summary judgment and made its order final for purposes of appeal. The wife appeals. We reverse and remand.

The procedural history of this action begins in June, 1985, with the wife filing a petition for legal separation. There then followed the husband's cross-petition for dissolution, the wife's amended petition for dissolution, additional amended petitions and amended cross-petitions, extensive discovery, including three sets of interrogatories, four depositions, two motions to produce, requests for admissions, as well as motions to make more definite and certain, to dismiss and for summary judgment, all reflected in more than sixty-five docket entries. We acknowledge the vigor of counsel and salute the patience of the trial court. We focus, however, only on that part of the process relevant to this appeal.

In the wife's first amended petition for dissolution, she alleges that her mother-in-law claims an interest in the stock and assets of the St. Francois Securities Corporation, which, the wife alleges, are marital property. The wife joined the mother-in-law as a "third-party respondent." In response, the mother-in-law filed a motion for summary judgment, with her supporting affidavit, seeking a judgment that she is the owner of all the stock of the corporation. Subsequently, the wife filed a second amended petition for dissolution, and, in response, the mother-in-law filed an answer and affirmative defenses. Meanwhile, the husband set his own agenda by filing a cross-petition and amended cross-petition for dissolution in addition to his responsive pleadings to the wife's petitions. Thus, at the time of trial in July 1987, the wife's second amended petition for dissolution was pending along with the mother-in-law's motion for summary judgment and the husband's first amended cross-petition for dissolution.

With meticulous concern for her procedural rights, the wife moved for a default judgment against the husband, contending he failed to file a timely answer to her second amended petition. With equal concern about his rights, the husband moved that the wife's second amended petition be stricken, contending the petition was unverified and filed after the date for filing granted by the trial court. With an even hand, the trial court granted both motions, which, for our purposes here, left in issue the mother-in-law's motion for summary judgment filed in response to the wife's first amended petition. The court then granted the motion for summary judgment. ¹

On appeal, the wife first attacks the striking of her second amended petition as an abuse of discretion. On August 13, 1986, in response to the wife's first amended petition, the mother-in-law filed, among other pleadings, a motion to make more definite and certain. On May 26, 1987, the trial court granted this motion and granted the wife until June 12, 1987 to file her second amended petition. The wife filed this petition four days late. Given the long procedural history of this case and the wife's insistence that the court strictly enforce her procedural rights against the husband, the trial court was well within its discretion in striking the wife's second amended petition at the husband's request. ² See e.g., Cento v. Cento, 703 S.W.2d 595, 596 (Mo.App.1986).

The wife also attacks the court's grant of the mother-in-law's motion for summary judgment. The wife contends that she properly raised genuine issues of material fact which made the grant of summary judgment improper. We agree.

At the outset, we find it necessary to discuss the record made by the parties in supporting and opposing the motion for summary judgment. The mother-in-law did file an affidavit in support of her summary judgment. She did not, however, confine her arguments to the trial court solely to her affidavit. She referred generally to the depositions of both the wife and the husband and also referred to the deposition of an attorney who had worked with mother-in-law regarding a transfer of the stock. In opposition, the wife did not file a counter affidavit. Instead she relied on specific parts of the depositions of the husband and mother-in-law as well as on specific parts of husband's property statement and of his verified pleadings. ³ These references were read into the record without objection.

This is not the first time this Court has been faced with an imprecise record when reviewing a ruling on a motion for summary judgment. Repeatedly, attorneys have elected to live dangerously by relying on this type of record. ⁴ Here, none of the parties objected to the specific references read into the record. Those specific matters, thus, were before the trial court and must be considered in determining if there is a genuine issue of fact concerning the ownership of the shares of stock in issue.

The mother-in-law contends the wife's failure to file a counter affidavit causes the facts in the mother-in-law's affidavit to be deemed admitted. The cases cited by the mother-in-law do not support this argument. See Barks v. Bi-State Dev. Agency, 727 S.W.2d 464, 466 (Mo.App.1987); Morley v. Ward, 726 S.W.2d 799, 801 (Mo.App.1987); Southard Constr. Co. v. Structural Systems, 715 S.W.2d 560, 562-63 (Mo.App.1986). These cases, as others, either state or hold the obvious. The facts in an affidavit filed in support of a motion for summary judgment are deemed admitted, absent a verified, relevant response. Thus, it is often said, the response must be "by affidavit or as otherwise provided by rule," Barks v. Bi-State Dev. Agency, supra. 727 S.W.2d at 466, and Rule 74.04(e) specifically provides:

The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.

Considering the relationship of the parties here, the wife used the most appropriate verified statements available to her to counter the mother-in-law's affidavit.

In her affidavit, the mother-in-law said she is "the absolute owner of all the shares of the corporation" and has been "the shareholder of 98 shares ... from the time of said corporation's incorporation." She also said she "discussed the transfer of some of [her] shares ... to [the husband] for estate planning purposes but no such transfers have been completed", and she neither "sold [nor] agreed to sell any of [her] shares of or interest in the corporation." Finally, she stated she has "not made statements to [the wife] that [the wife] or [the husband] were the owners of the corporation, could purchase [her] shares of or interest in the corporation, or that [she] would give either or both of them [her] shares of or interest in the corporation in exchange for operating or managing the corporation." In addition, counsel for the mother-in-law read from the deposition of an attorney the mother-in-law had contacted regarding a transfer of the stock. He said he was never directed to transfer any of the stock jointly to wife and husband. ⁵

To controvert the mother-in-law's evidence, the wife relied on the husband's verified cross-petition, his verified statement of property, as well as the deposition testimony of the mother-in-law, of the husband and of the attorney who was asked for advice about the stock transfer. In his original verified cross-petition and his verified property statement, the husband stated he had an interest in ninety-seven shares of the St. Francois Securities Corp. He received those shares, he stated, as gifts, from 1970 to 1980. In those same documents, he claimed an interest in the house, land, airplane, and cars used by the wife and...