Jones v. St. Charles County

• Decision Date: 31 January 2006
• Docket Number: No. ED 85652.,ED 85652.
• Citation: 181 S.W.3d 197
• Parties: Steve JONES, Robert Jones, Therese Signaigo, Marycarol Jones, Jennifer Jones, and The Estate of Catherine Jones, Appellants, v. ST. CHARLES COUNTY, Respondent.
• Court: Missouri Supreme Court

181 S.W.3d 197

Steve JONES, Robert Jones, Therese Signaigo, Marycarol Jones, Jennifer Jones, and The Estate of Catherine Jones, Appellants, v. ST. CHARLES COUNTY, Respondent.

No. ED 85652.

Missouri Court of Appeals, Eastern District, Division One.

November 8, 2005.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 22, 2005.

Application for Transfer Denied January 31, 2006.

COPYRIGHT MATERIAL OMITTED

David L. Coffman, St. Louis, MO, for appellant.

Beverly E. Temple, St. Charles, MO, for respondent.

CLIFFORD H. AHRENS, Judge.

Steve Jones, Robert Jones, Therese Signaigo, Marycarol Jones, Jennifer Jones, and Steve Jones as personal representative of the Estate of Catherine Jones (collectively referred to herein as "plaintiffs"), appeal the judgment of the trial court granting summary judgment in favor of St. Charles County ("the county"). Plaintiffs claim the trial court erred in granting summary judgment because genuine issues of material fact exist concerning the county's liability under the Missouri Stock Law and its waiver of sovereign immunity. We affirm in part and reverse and remand in part.

Catherine Jones ("decedent") was driving a vehicle on highway 40 when she struck a horse. Jones died from injuries at the scene of the accident. The horse was owned by Rafter Heart, Inc. ("RHI"), and had been placed in a nearby pasture located on property owned by the county. Pursuant to a concession agreement with the county, RHI operated stables and a riding concession on the property. Plaintiffs filed a wrongful death action against RHI and St. Charles County. In count one of the petition, plaintiffs alleged liability pursuant to the Missouri Stock Law, section 270.010 RSMo (2000)¹. In count two, plaintiffs alleged general negligence. The county moved to dismiss the action, and alternatively moved for summary judgment. The trial court granted the county's motion for summary judgment, finding that there was no joint venture between the county and RHI, and plaintiffs failed to plead the essential elements to invoke the Missouri Stock Law against the county. The court also found that the county did not waive its sovereign immunity. The court found no just reason for delay existed, finalizing the judgment for purposes of appeal². Plaintiffs now appeal.

We review the trial court's decision to grant summary judgment de novo. Missouri Employers Mut. Ins. Co. v. Nichols, 149 S.W.3d 617, 622-23 (Mo.App.2004); (citing ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993)). We do not defer to the trial court. Id. at 623. Whether the decision of the court is proper is purely an issue of law. Id. We will uphold the grant of summary judgment on appeal if no genuine dispute of material fact exists, and the movant is entitled to judgment as a matter of law. Id. We view the evidence in the light most favorable to the party against whom the judgment was entered, and we afford them the benefit of all reasonable inferences from the evidence. Id. The movant's right to judgment differs depending upon whether the movant is a "`defending party.'" Id. A "defending party" may be entitled to summary judgment where it can show facts to negate any element of the plaintiff's claim. Skay v. St. Louis Parking Co., 130 S.W.3d 22, 25 (Mo.App.2004). "`Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper.'" Id.; (quoting ITT Commercial, 854 S.W.2d at 381).

In their first point, plaintiffs claim the trial court erred in granting summary judgment in favor of the county on count one because it was a possessor of the horse that escaped and collided with Jones's vehicle. Plaintiffs argue that while the county did not own the horse, it owned the land upon which the horse was kept, and therefore, could be considered a possessor of the horse for purposes of the Missouri Stock Law.

Pursuant to section 270.010, it is unlawful to allow horses to run at large outside an enclosure, and the owner of the animal is responsible for damages sustained by persons as a result of the animal running at large.

As plaintiffs note, our courts have interpreted the Missouri Stock Law as applying to both owners and possessors of animals. Keefer v. Hartzler, 351 S.W.2d 479, 480 (Mo.App.1961). The trial court found that it believed plaintiffs failed to plead the essential elements to invoke the Stock Law. However, plaintiffs did argue the county's possession of the horse in their response to the county's motion for summary judgment. The trial court addressed plaintiffs' argument and determined that the Stock Law did not apply to the county. The court granted summary judgment in favor of the county.

Plaintiffs rely on King v. Furry, 317 S.W.2d 690 (Mo.App.1958), to argue that the county, as possessor of the horse, was subject to liability under section 270.010. The trial court distinguished King.

In King, there was a collision between a vehicle and cattle. The plaintiff brought an action against three defendants under the Missouri Stock Law and for general negligence. The cause was submitted to the jury only on the Stock Law claim, and a verdict was returned in favor of plaintiff against all three defendants. The defendants appealed, arguing that the trial court erred in entering judgment against two of the defendants, because there was no proof of the ownership or control of the cattle by those two defendants. The court of appeals found that in view of the pleadings, the admissions of defendants, and the evidence, the verdict against all three defendants and the court's entry of judgment against them was proper. Id. at 696.

The court in the present case placed significant weight upon the fact that in King, the defendants admitted they were partners in the operation of the auction barn from which the cattle escaped. The court noted that here, the county and RHI were not partners. We agree that the facts of King are distinguishable from the present case.

In King, the defendant who owned the cattle involved in the collision testified that he and the remaining two defendants were partners. The defendants admitted that they owned and operated a sales barn together with stock pens on the property for the purpose of selling the stock at the auction barn to the public. In the present case, plaintiffs alleged that the county owned the property upon which the riding stables and pastures were located. However, there was no evidence of a partnership between the county and RHI to establish the county's possession or ownership of the horses kept on the property. The county did not admit to owning the horses or the riding concession, nor did it admit to being involved in a partnership with RHI.

The evidence in the record before us shows that the county asserted some control over the operation of the riding concession, pursuant to its agreement with RHI. The county could enter the areas used by RHI and inspect the property, and agreed to perform some maintenance and operation services. The county reserved the right to provide marketing and advertising services for the concession, and reserved the right to review the records of the concession. However, this general oversight of the operation did not constitute control such that the county became a "possessor" of the horse subject to liability under the Missouri Stock Law. Instead, it is clear that the horse involved in the collision in the instant case was owned solely by RHI. Based upon the undisputed facts, as a matter of law the county did not own or possess the horse involved in the collision. Point denied.

In their second point on appeal, Plaintiffs claim the trial court improperly granted summary judgment in favor of the County on count one because the record established a disputed issue of material fact as to whether the County was engaged in a joint venture with RHI to operate the stables, and thus owned the horse as a joint venturer.

"A joint venture is essentially `an association of two or more persons to carry out a single business enterprise for profit.'" Ritter v. BJC Barnes Jewish Christian Health Systems, 987 S.W.2d 377, 387 (Mo.App.1999); (quoting Eads v. Kinstler Agency, Inc., 929 S.W.2d 289, 292 (Mo.App.1996)). The elements of a joint venture are: (1) an express or implied agreement among the members; (2) a common purpose; (3) a community of pecuniary interest; and (4) equality in determining the direction of the enterprise. Id. "Indications of a joint venture include: actively participating and sharing in the profits, all parties having joint and several control, and having a duty to share the losses." Id.

If a movant for summary judgment is a defendant, as the county is in the present case, summary judgment will be proper where the defendant shows undisputed facts that negate any one of the required elements of the cause of action. Williams v. Missouri Highway and Transp. Com'n, 16 S.W.3d 605, 610 (Mo.App.2000).

In the present case, the trial court premised its judgment upon the grounds that pursuant to the concessionaire agreement, the county was only to share in a percentage of the gross receipts. The trial court found that this did not call for the county to share in any profits or losses, only gross receipts, and therefore, as a matter of law, a joint venture did not exist.

The concession agreement entered into between the county and RHI provided that the county would receive nine percent of the gross receipts each month. According to the agreement, this amount included anything of value received by RHI in its operation of the business on the premises. The record does not support a finding of a community of pecuniary interest simply because both parties share an economic interest in the operation of the concession. Hatch v. V.P. Fair Foundation, Inc., 990 S.W.2d 126, 138 (Mo.App.1999). "The community of pecuniary interest requires that the parties have a right to share in the profits and a duty...