McCarthy v. Community Fire Protection Dist. of St. Louis County, 64513

• Decision Date: 29 March 1994
• Docket Number: No. 64513,64513
• Parties: Vincent J. McCARTHY, Plaintiff-Appellant, v. COMMUNITY FIRE PROTECTION DISTRICT OF ST. LOUIS COUNTY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 700

876 S.W.2d 700

Vincent J. McCARTHY, Plaintiff-Appellant, v. COMMUNITY FIRE PROTECTION DISTRICT OF ST. LOUIS COUNTY Defendant-Respondent.

No. 64513.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 29, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 28, 1994.

Application to Transfer Denied June 21, 1994.

Stephen M. Schoenbeck, Schoenbeck, Schoenbeck & Associates, St. Louis, for appellant.

A. David McMahon, McMahon Legal Services, St. Louis, for respondent.

KAROHL, Judge.

Vincent J. McCarthy sued Community Fire Protection District (District) of St. Louis County for payment of past accounting services rendered. The trial court granted summary judgment in favor of District. McCarthy appeals claiming the trial court erred in entering summary judgment because District's motion failed to state with particularity the grounds upon which it was based. McCarthy further claims the constitutional and statutory grounds stated in District's supporting memorandum were inapplicable or not proved. McCarthy's cause of action fails as a matter of law. We affirm.

McCarthy provided accounting services for District from 1974 through 1987. During the early 1980's, McCarthy alleges District was experiencing financial difficulties and was unable to pay on a current basis for all of the accounting services it required. McCarthy alleges he agreed, at the request of District's former directors, to perform additional necessary accounting services and to defer his billing for such services until the financial situation of District improved. He did not allege provisions concerning if or when financial improvement was expected to occur.

In 1987, following a membership change of District's board of directors, McCarthy was informed his services were no longer required. McCarthy was informed by letter his replacement would begin October 7, 1987, and his assistance during the transition period should be invoiced to District. McCarthy subsequently submitted invoices to District for both his current services involved in facilitating the transition to a new accountant and for past "special" services.

McCarthy filed this lawsuit on July 15, 1992, alleging:

That at the direct request and authorization of the defendant certain professional accounting services were rendered to the defendant by the plaintiff, for which defendant agreed to pay the reasonable value; that after allowing just credits due it, there still remains due and unpaid the sum of Thirty Thousand Two Hundred Ninety Dollars ($30,290.00); that demand has been made on the defendant for the payment thereof on October 17, 1987, but notwithstanding said demand defendant has refused to pay said sum; that statements for service rendered are attached hereto and made a part hereof.

McCarthy's attachment to his petition shows a total charge of $30,290 for services associated with three different funds, all "past due" for the period from 1981 to 1987.

After answering, District moved for summary judgment. The parties filed suggestions in support of or in opposition to the motion, respectively. Following a hearing, the trial court found District was entitled to judgment as a matter of law as to all allegations contained in McCarthy's petition.

District initially asserts this appeal must be dismissed as premature because the trial court did not dispose of all the issues and therefore the judgment is not final and appealable. In its answer, District stated, "Further answering, affirmatively, Defendant states that entire arrangement, if any, proven between the Plaintiff and Defendant is ultra vires and Defendant is entitled under the recoupment doctrine to any and all previous sums proven to have been received by Plaintiff." In the trial court's order granting summary judgment, it stated, "The court makes no ruling with respect to defendant's affirmative defense in defendant's answer, seeking recoupment of all sums proven to have been received by plaintiff." A judgment must be final to be appealable. There is no undisposed of claim here. We have jurisdiction.

Counterclaims must be designated as such. Rule 55.01. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court may treat the pleadings as if there had been a proper designation. Rule 55.08. An affirmative defense attempts to defeat or avoid the other party's cause of action. Terre Du Lac Property Owners' Ass'n, Inc. v. Wideman, 655 S.W.2d 803, 806 (Mo.App.1983). Whether a pleading is a "counterclaim" or an "affirmative defense" often depends on the intent of the pleader. McDowell v. Schuette, 610 S.W.2d 29, 36 (Mo.App.1980). "Recoupment" is a purely defensive matter growing out of a transaction constituting plaintiff's cause of action and is available only to reduce or satisfy plaintiff's claim and permits no affirmative judgment. Schroeder v. Prince Charles, Inc., 427 S.W.2d 414, 419 (Mo.1968).

District did not plead or submit a counterclaim. District's "affirmative defense" was not a claim for money damages. The order sustaining District's motion for summary judgment in the present case is final and appealable.

McCarthy's first point on appeal is the trial court erred in granting summary judgment for District because its motion failed to state the grounds upon which it was based with particularity as required by Rule 74.04(c). The complete text of District's motion for summary judgment is as follows: "The pleadings, answers, and affidavits on file, if any, show that there is no genuine issue as to any material fact and that the Defendant is now entitled to a judgment as a matter of law." District attached suggestions in support of its motion wherein it argued that both Article VI, § 26(a) of the Missouri Constitution and § 432.070 RSMo 1986 bar McCarthy from recovering. The constitution section referenced prevents a political subdivision such as District from becoming indebted in any amount exceeding in any year the income and revenue provided for such year plus any unencumbered balances from previous years. Similarly, the statutory section referenced bars any claim in contract against District as a municipal corporation unless in writing, and McCarthy alleges the contract is oral. McCarthy responded by filing suggestions in opposition to District's motion. He fully responded to the merits of its arguments and did not attack the sufficiency of the motion until this appeal.

Rule 74.04(c) provides that a motion for summary judgment "shall state with particularity the grounds therefor." ¹ District's motion is patently defective in this respect. The Southern District of this court has repeatedly reversed judgments sustaining defective motions for summary judgment. Partney v. Reed, 839 S.W.2d 694 (Mo.App.1992); Johns v. Continental Western Ins. Co., 802 S.W.2d 196 (Mo.App.1991); Mercantile Bank of Sikeston v. Moore, 792 S.W.2d 653 (Mo.App.1990).

The purpose of Rule 74.04(c)'s particularity requirement is to apprise the opposing party and the trial court of the specific basis on which the movant claims it is entitled to summary judgment. With the issues focused, the opposing party may prepare a defense to the motion and the trial court may make an informed ruling. Barkley v. Carter County State Bank, 791 S.W.2d 906, 915 (Mo.App.1990). Neither counsel, the trial court, nor an appellate court should be required to sift through pleadings, affidavits and other portions of the record to attempt to determine the basis for the motion. Commerce Bank of Joplin, N.A. v. Willis, 785 S.W.2d 787, 789 (Mo.App.1990). Because the motion for summary judgment did not comply with Rule 74.04(c), the trial court would have been justified in determining that summary judgment based on it was improper. However, as in Willis, the record is uncomplicated. The basis for the judgment was obvious to counsel, the trial court, and it is clear to this court. Even though McCarthy raised the issue of the sufficiency of the motion with this court, he failed to raise it with the trial court. That was the place to make such a challenge because the rule's purpose is to give notice to the party...