Karney v. Wohl

Decision Date19 January 1988
Docket NumberNo. 53143,53143
PartiesElaine Suzie KARNEY, Plaintiff-Appellant, v. Mark WOHL and Robert Wohl, Defendants-Respondents.
CourtMissouri Court of Appeals

Sanford Goffstein, St. Louis, for plaintiff-appellant.

Robert G. Brady, Joseph Colagiovanni, St. Louis, for defendants-respondents.

GRIMM, Judge.

Appellant Elaine Suzie Karney asserts that the trial court erred in sustaining a motion for summary judgment filed by respondents Mark Wohl and Robert Wohl. The underlying petition was in three counts, with Count I seeking equitable relief in setting aside a settlement agreement in a dissolution proceeding; Count II seeking damages for the "fraudulent misrepresentations made by Mark Wohl"; and Count III seeking damages from both respondents, alleging that they conspired to defraud appellant. Finding that no appealable order was entered, the appeal is dismissed.

The marriage of appellant and respondent Mark Wohl was dissolved on January 4, 1982. The parties had previously, on November 25, 1981, entered into a written settlement agreement, in part to "adjust, settle and determine all of their respective property rights." In the petition filed April 5, 1985, appellant alleged that Mark Wohl had represented to her that "he had transferred his shares of stock in Premium Associates, Ltd., to Robert Wohl in consideration of the payment of Seventeen Dollars ($17.00)" on February 18, 1980, but in fact he had not transferred his shares and that the transaction was a sham and artifice used to defraud her of her marital rights in the property. Respondents filed a "Motion to Dismiss or for Summary Judgment," asking the court to "dismiss plaintiff's petition and to enter summary judgment" because the petition failed "to state a claim upon which relief can be granted, that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law." The respondents did not file any supporting affidavits as permitted by Rule 74.04, however they did file a memorandum in support of their motion, to which was attached as exhibits excerpts from two depositions and a copy of the settlement agreement.

Appellant filed a memorandum in opposition. No affidavits accompanied it, however attached to the memorandum were exhibits, including some answers to interrogatories; an excerpt from a deposition; a few pages purporting to be from a transcript on appeal in another case involving respondents; purported financial statements of respondents dated September 15, 1980; and purported income tax returns for Premium Associates, Ltd., for the years 1977 through 1980. Thereafter, respondents filed a memorandum in response to appellant's memorandum.

Before reaching the dispositive issue, we reiterate the suggestion in Hill v. Air Shields, Inc., 721 S.W.2d 112, 116 (Mo.App.E.D.1986):

The preferable course for both the moving and opposing parties to follow in a motion for summary judgment would be to enumerate all portions of the transcripts and depositions referred to in the motion and to properly authenticate or certify the documents which they wish the trial court to consider in ruling on the motion. Unless the record reveals that the documents which the parties purportedly relied upon in the trial court were properly made part of the record, we cannot say that they were before the trial court and they are not...

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7 cases
  • Earls v. Farmers Production Credit Ass'n
    • United States
    • Missouri Court of Appeals
    • December 28, 1988
    ...banc 1974). With exceptions not applicable here, a dismissal without prejudice is not an adjudication on the merits, Karney v. Wohl, 747 S.W.2d 214, 216 (Mo.App.1988); Ritter v. Aetna Casualty & Surety Co., 686 S.W.2d 563, 564 (Mo.App.1985), and consequently does not constitute a final judg......
  • Johnson v. Johnson
    • United States
    • Missouri Court of Appeals
    • January 31, 1989
    ...the trial court and they are not now before us.Hill v. Air Shields, Inc., 721 S.W.2d 112, 116 (Mo.App.1986); See e.g. Karney v. Wohl, 747 S.W.2d 214, 215-16 (Mo.App.1988); Schelle v. Mercantile Bancorporation, Inc., 741 S.W.2d 720, 722 (Mo.App.1988).5 Counsel for the mother-in-law synopsize......
  • Karney v. Wohl
    • United States
    • Missouri Court of Appeals
    • January 23, 1990
    ...prejudice, finding the trial court's order was not final because the trial court had dismissed the case without prejudice. Karney v. Wohl, 747 S.W.2d 214 (Mo.App.1988). Thereafter, the parties filed additional affidavits with the trial court and, on December 9, 1988, that court by memorandu......
  • Meadows v. Jeffreys
    • United States
    • Missouri Court of Appeals
    • April 30, 1996
    ...is not a final judgment from which an appeal can be taken. White v. Pruneau, 913 S.W.2d 959, 959 (Mo.App.E.D.1996); Karney v. Wohl, 747 S.W.2d 214, 216 (Mo.App.E.D.1988).There are exceptions to that rule, however. When the effect of the order is to dismiss the action and not merely the plea......
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