Shafer v. Western Holding Corp., WD

• Decision Date: 26 June 1984
• Docket Number: No. WD,WD
• Citation: Shafer v. Western Holding Corp., 673 S.W.2d 117 (Mo. App. 1984)
• Parties: Charles C. SHAFER, Jr., Trustee, West Terrace Trust, Appellant, v. WESTERN HOLDING CORPORATION, et al., Respondents. 34963.
• Court: Missouri Court of Appeals

Page 117

673 S.W.2d 117

Charles C. SHAFER, Jr., Trustee, West Terrace Trust, Appellant, v. WESTERN HOLDING CORPORATION, et al., Respondents.

No. WD 34963.

Missouri Court of Appeals Western District.

June 26, 1984.

Charles C. Shafer III, Kansas City, for appellant.

Alvin D. Shapiro, Patrick A. Woodley, Kansas City, for respondents.

Before TURNAGE, C.J., and SHANGLER and NUGENT, JJ.

TURNAGE, Chief Judge.

Charles C. Shafer, Jr., as trustee of West Terrace Trust, appeals following the entry of summary judgment against him in a suit he brought for specific performance of a real estate contract. Shafer contends the court erred in converting a motion to dismiss to a motion for summary judgment; in entering summary judgment without giving him the opportunity to show that an oral contract existed; in dismissing his claim founded on tortious interference with a business relationship; and in entering summary judgment although two writings existed to satisfy the statute of frauds. Affirmed.

Shafer alleged that as the trustee of West Terrace Trust he signed a contract to purchase the Casa Loma Apartments in Kansas City which were owned by Western Holding Corporation. Shafer alleged that he made an offer to purchase and signed a contract for purchase which Western had prepared. A copy of the contract was attached to the petition but such contract was not signed by Western. After filing the petition Shafer caused a lis pendens to be filed.

Western and the other defendants, Arthur Fels Company and Clifford Trenton, filed a motion to dismiss and gave notice that they were calling up the motion. At the hearing on the motion, counsel for all defendants argued that the petition did not state a cause of action. Defendants produced neither evidence nor affidavits.

At the conclusion of that argument, Shafer took the witness stand and testified concerning his efforts to purchase Casa Loma Apartments. Shafer stated that he had prepared a contract of sale and submitted it to Western. Western did not sign that contract but instead caused a contract to be drafted and submitted to Shafer. That latter contract was not signed by Western, but Shafer signed it without change and returned it to Western with a check for a down payment in the amount of $30,000. The down payment was paid to McDaniel Title Company.

Shafer testified that after he had signed the contract and sent the down payment to McDaniel he was told by an attorney for Western that the deal was all right except that Western wanted to make a few changes in the wording. Shafer said that was fine. Shafer said he also received a handwritten note from Clifford Trenton, the president of Western, which was a disclosure statement required by the Missouri Real Estate Commission and which disclosed that Trenton was a stockholder of Arthur Fels Company, the owner of all of the stock of Western Holding. That memo made no mention of the sale of Casa Loma.

The motion to dismiss was based on the fact that there was no writing signed by Western as required by the statute of frauds, § 432.010, RSMo 1978.

At the conclusion of Shafer's evidence the court announced that the motion to dismiss filed pursuant to Rule 55.27 would be converted to a motion for summary judgment pursuant to Rule 55.27(a). That rule provides that if matters outside the pleadings are presented and not excluded by the court the motion to dismiss shall be treated as one for summary judgment and disposed of as provided for in Rule 74.04. Rule 74.04 provides that a motion for summary judgment shall be served at least 10 days before the time fixed for a hearing.

Shafer first contends that the court was not authorized to enter summary judgment against him because it failed to notify him that the motion was converted to a motion for summary judgment. Shafer should have known that, under Rule 55.27(a), when he presented evidence beyond the pleadings, the motion was thereby converted into a motion for summary judgment.

Shafer further contends that he was not given a reasonable opportunity to present all of his evidence and that if given the opportunity he could prove the equitable exceptions which exist to avoid the harsh application of the statute of frauds. The court asked Shafer at the conclusion of his evidentiary presentation if he had any further evidence and Shafer indicated he did not. Further, the petition did not plead an exception to the statute of frauds but pleaded the existence of a contract. Therefore the court did not err in entering summary judgment.

Shafer further contends the court should have given him the 10 days notice required by Rule 74.04 that the motion was being converted to a motion for summary judgment. This court is not aware of any Missouri cases on this question. Shafer cites Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625 (Mo.App.1975), in which the court stated that it is important for the trial court to give the parties notice of the changed status of the motion to dismiss and a reasonable opportunity to present all of their material relevant to a motion for summary judgment. Id. at 629[1, 2]. Laclede is not applicable to the facts here because in that case no evidence beyond the pleadings was introduced at the hearing on the motion to dismiss. As already observed, Shafer was placed on notice that the motion was converted when he introduced evidence beyond the pleadings. Also, the court advised the parties at the conclusion of the hearing that it would consider the motion as having been converted.

The requirement of giving the 10 days notice under the circumstances existing here was considered in Dayco Corporation v. Goodyear Tire & Rubber Company, 523 F.2d 389 (6th Cir.1975). In Dayco, affidavits were filed by all parties following a motion to dismiss. Federal Rule 12(b) is identical to Rule 55.27(a) and Federal Rule 56 is identical to Rule 74.04. The court noted in the provision of Rule 12(b) that, after the conversion of a motion to dismiss into a motion for summary judgment, all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56. The court held that the "reasonable opportunity" language is designed to prevent unfair surprise to the parties. The court said that Dayco could not claim surprise because it made no effort to exclude other affidavits filed and in fact filed its own affidavits. The court held that under the circumstances the trial court was required to proceed under Rule 56 and notice to the parties that it was doing so would simply inform them of what they should already have known. Id. at 393. The court in Dayco further stated that whether or not notice of conversion is required depends on the circumstances of the case.

This court agrees with the rationale in Dayco. Shafer had notice that the motion to dismiss was being called for hearing. He went to the hearing obviously prepared to offer evidence and did so. The defendants did not offer any evidence or affidavits. Shafer was allowed to present all of the evidence he desired. He does not contend that he did not have proper notice that the motion to dismiss was going to be heard or that he did not have ample opportunity to present all of the evidence he had to offer.

When Shafer introduced evidence beyond the pleadings he should have known that the motion was converted to a motion for summary judgment. Formal notice given pursuant to Rule 74.04 that the motion to dismiss was converted to a motion for summary judgment would only have informed him of that which he should have known. Under the circumstances of this case Shafer was not surprised by the conversion of the motion. The court was not required to give the 10 days notice in Rule 74.04 and properly acted on the motion as one for summary judgment.

Shafer further contends that by entering summary judgment the court prevented him from amending his petition. After judgment Shafer did not seek to have the judgment set aside nor did he request other relief. Shafer has also failed to demonstrate to this court facts which he wants to insert in an amended pleading. He contends in purely conclusory language that he might have shown equitable estoppel. If...