Palmore v. City of Pac.
| Decision Date | 19 March 2013 |
| Docket Number | No. ED 98672.,ED 98672. |
| Citation | 393 S.W.3d 657 |
| Parties | Jeffrey PALMORE, et al., Appellants, v. CITY OF PACIFIC, et al., Respondents. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
S. Todd Hamby, Sheila Greenbaum, St. Louis, MO, John E. Batka, Florissant, MO, for appellant.
T. Michael Ward, Teresa M. Young, Samuel John Vincent III, St. Louis, MO, for respondent Alan J. Brun.
David C. Knieriem, Clayton, MO, for respondent R.H. Bruns Vault & Monument.
Evans & Dixon, St. Louis, MO, for respondent City of Pacific.
Appellants/Plaintiffs, Jeffrey Palmore, Bell Funeral Home, and Marvel Mason, Jr., appeal from the trial court's summary judgment in favor of Respondents/Defendants, City of Pacific, Sexton Alan Bruns and R.H. Bruns Vault and Monument Company. For the reasons below, we affirm.
What began as a $225 overcharge claim in small claims court has escalated into a complicated, expensive, and lengthy litigation chronicle. In a quest by Jeffrey Palmore (“Palmore”), Bell Funeral Home, and Marvel Mason, Jr. (“Mason”) (collectively, “Plaintiffs”) to hold local government accountable, the underlying action was commenced to seek recovery of overcharged burial and interment fees from the City of Pacific, Sexton 1 Alan Bruns (“Sexton”) and R.H. Bruns Vault and Monument Company (“Vault Company”) (collectively, “Defendants”).
Bell Funeral Home—owned and operated by Palmore 2—assists individuals in funeral, interment and burial arrangements. Clients of Bell Funeral Home wishing to be buried or have a family member buried in the City of Pacific's municipal cemetery must pay interment and burial fees. These interment and burial fees are prescribed by City of Pacific Ordinances and/or Resolutions. During the times relevant to this case, City of Pacific Ordinances and Resolutions limited charges for interment and burial in a City of Pacific cemetery to a total of $360. Further, during all relevant times, the Sexton and the City of Pacific were under an agreement which provided that $60 of that $360 would be paid to the City of Pacific.
In order to pay these fees for their clients, Palmore, through Bell Funeral Home, would write one check to the City of Pacific for $60 and another check to the Vault Company (Sexton's privately owned burial company) for varying amounts. The Sexton would then deposit these checks into the Vault Company's bank accounts. Palmore and Bell Funeral Home set their fees based, partially, upon the fees charged by the Sexton, the Vault Company and the City of Pacific for burial and interment.
In 2005, Palmore and Bell Funeral Home assisted Laura Brooks Mason—mother of Mason—in securing two separategravesites inside the City of Pacific cemetery. Each gravesite cost Bell Funeral Home $300, for a total of $600, which Bell Funeral Home paid directly to the City of Pacific. Immediately, Sandra Anderson—Laura Brooks Mason's daughter and Mason's sister—was buried in one of those gravesites. In order for Sandra Anderson to be buried, Bell Funeral Home, paid $580 to the Vault Company for the burial fees and $60 to the City of Pacific for interment fees for a total of $640. Thus, Bell Funeral Home paid $280 more than the $360 permitted by City of Pacific Ordinances and Resolutions.
In 2006, Laura Brooks Mason passed away and was buried in the second gravesite purchased by Bell Funeral Home in the previous year. In order to be buried in that gravesite, Bell Funeral Home paid $570 to the Vault Company for the burial fees and $60 to the City of Pacific for interment fees, for a total of $630. Thus, Bell Funeral Home paid $270 more than the $360 permitted by City of Pacific Ordinance and Resolutions.
In 2007, Palmore and Bell Funeral Home assisted Mason in securing a burial plot in the City of Pacific's municipal cemetery for his father. During this burial arrangement process, Bell Funeral Home paid Vault Company $525 for burial fees and paid $60 to the City of Pacific for interment fees for a total of $585. Thus, Bell Funeral Home paid $225 more than the $360 permitted by City of Pacific Ordinances and Resolutions.
Thereafter, Plaintiffs discovered that the City of Pacific Ordinances and Resolutions set the burial and interment fees at $360, in total. Furthermore, Plaintiffs also discovered that the two gravesites purchased for Laura Brooks Mason in 2005 were allegedly already owned by the Mason family. Accordingly, Plaintiffs allege they were overcharged $1,375 for the three Mason burials.
Seeking to recoup their monies, Plaintiffs sought a refund from the Defendants. After the Defendants refused to refund the Plaintiffs, the Plaintiffs sought relief from the administrative bodies of the City of Pacific. The administrative bodies of the City of Pacific continuously delayed resolution of the overage charges, thus, Palmore, commenced a pro se small claims suit in the Small Claims Court of Franklin County (“Small Claims Suit”).
In that Small Claims Suit, Palmore sued all three defendants in connection with the burial of Mason's father. The small claims court entered judgment on July 25, 2008, in favor of Defendants City of Pacific and the Sexton and against Palmore; and in favor of Palmore and against Vault Company for $273.86.
On August 4, 2008, Vault Company, without an attorney, filed an application for a trial de novo (“Trial De Novo Suit”). The Trial De Novo Suit proceeded to the circuit court of Franklin County, whereupon Palmore filed an Amended Petition.3 During the Trial De Novo Suit both the Vault Company (now represented by an attorney) and the City of Pacific filed separate motions for summary judgment. On March 9, 2009, Palmore voluntarily dismissed the Amended Petition. On March 17, 2009, the Trial De Novo court dismissed the Vault Company's application for trial de novo because an attorney did not file the application for trial de novo, and, thus, the application was void. However, on April 6, 2009, Palmore requested the Trial De Novo court to reconsider and vacate the dismissal of Vault Company's application. On August 12, 2009, the Trial De Novo court vacated the March 17 application dismissal and entered Plaintiff's voluntary dismissal of the Amended Petition.
On May 29, 2009, Palmore, Bell Funeral Home and Mason filed this action (“Present Suit”) against the Sexton, the City of Pacific and the Vault Company in the Circuit Court of Franklin County. The three-count petition alleged the Defendants were unjustly enriched by the monies received in connection with the burial and interment of the Masons' three family members and that the Defendants violated the Missouri Merchandising Practices Act, Sections 407.010 et seq.
All three Defendants filed separate motions for summary judgment. Without written opinions, the trial court granted all three motions for summary judgment. This appeal follows.
Plaintiffs raise ten points on appeal. Because the trial court chose not to state the reasons it granted summary judgment in favor of each Defendant, most of Plaintiffs' points relied on address each argument set forth in Defendants' separate motions for summary judgment.4 A recitation of each point relied on is unnecessary for a full understanding of this Court's disposition.
Appellate review of summary judgment is de novo. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria on appeal for testing the propriety of summary judgment are the same as the criteria applied by the trial court to test the propriety of summary judgment. Id. This Court reviews the record in the light most favorable to the party against whom summary judgment is entered and accords the non-movant “the benefit of all reasonable inferences from the record.” Id. Summary judgment is appropriate where the moving party has demonstrated, on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law. E. Mo. Coal. of Police, Fraternal Order of Police, Lodge 15 v. City of Chesterfield, 386 S.W.3d 755, 757 (Mo. banc 2012); see also Rule 74.04(c)(6).
Germane to this appeal, a defendant may establish his or her right to summary judgment by demonstrating: (1) facts negating any element of the plaintiff's cause of action; (2) the plaintiff has presented insufficient evidence to allow the finding of the existence of any one of the elements of the plaintiff's action; or (3) there is no genuine dispute as to the existence of each of the facts necessary to support a properly pled affirmative defense. Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50, 58–59 (Mo. banc 2005). “Once the movant has established a right to judgment as a matter of law, the non-movant must demonstrate that one or more of the material facts asserted by the movant as not in dispute is, in fact, genuinely disputed.” Meramec Valley R–III Sch. Dist. v. City of Eureka, 281 S.W.3d 827, 835 (Mo.App. E.D.2009).
As in the case at bar, if the trial court does not identify its reasons for sustaining a defendant's motion for summary judgment, the trial court is presumed to have based its decision on the grounds specified in the defendant's motion for summary judgment. Comp & Soft, Inc. v. AT & T Corp., 252 S.W.3d 189, 194 (Mo.App. E.D.2008). Thus, this Court is confined to the documents set out with specificity in a motion for summary judgment and the responses thereto. See Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 85 (Mo.App. E.D.1999) (). However, “[i]f the trial court's judgment is sustainable on any ground as a matter of law, even one different than that posited in the motion for summary judgment, the judgment should be sustained.” Tonkovich v. Crown Life Ins. Co., 165 S.W.3d 210, 215 (Mo.App. E.D.2005).
To continue reading
Request your trial
-
Morgan v. Morgan
...in this regard, violates the “simple and mandatory” Rule 84.04(d), in that Mother fuses two distinct points. Palmore v. City of Pacific, 393 S.W.3d 657, 662 n. 4 (Mo.App.E.D.2013) ; see alsoRule 84.04(d). Solely because Father elected not to file a Respondent's brief, we will review both of......
-
Naylor Senior Citizens Hous., LP v. Sides Constr. Co.
...had cause to address it. The court of appeals, on the other hand, is well-schooled in its application. See, e.g., Palmore v. City of Pac., 393 S.W.3d 657, 664 (Mo.App.2013) (because “application for trial de novo was not filed by an attorney, its application was void ab initio ”); 6226 Nort......
-
Jeschke AG Serv., LLC v. Bell
..., which "bars a litigant from asserting claims that should have been asserted in previous litigation." See Palmore v. City of Pacific , 393 S.W.3d 657, 666 & n.6 (Mo. App. E.D. 2013) ("This aspect of res judicata is commonly referred to as claim splitting."); see also Shores v. Express Lend......
-
Cooper v. Bank of Am., N.A.
...sued for" there via her counterclaims, is identical to the thing sued for here in her complaint. See, e.g., Palmore v. City of Pacific, 393 S.W.3d 657, 666 (Mo.App. E.D. 2013) (finding this element "satisfied because 'the thing sued for' in both actions was monetary damages arising out of t......