Weems v. Montgomery

• Decision Date: 17 February 2004
• Docket Number: No. WD 62761.,WD 62761.
• Citation: 126 S.W.3d 479
• Parties: Douglas M. WEEMS, et al., Appellants, v. Mary J. MONTGOMERY, et al., Respondents.
• Court: Missouri Court of Appeals

126 S.W.3d 479

Douglas M. WEEMS, et al., Appellants, v. Mary J. MONTGOMERY, et al., Respondents.

No. WD 62761.

Missouri Court of Appeals, Western District.

February 17, 2004.

Douglas M. Weems and Dennis J. Owens, Kansas City, MO, for Appellants.

Kevin E. Glynn, Kansas City, MO, for Respondents.

Before LISA WHITE HARDWICK, P.J., PAUL M. SPINDEN and THOMAS H. NEWTON, JJ.

THOMAS H. NEWTON, Judge.

Appellants, Douglas and Kerry Weems, filed a petition against respondent, Mary Jean Montgomery, contending that she committed fraud when she sold her mother's (Anna Belle Randolph) home to the appellants. The circuit court, probate division, dismissed appellants' petition. We conclude that it improperly relied upon evidence beyond the pleadings and that appellants stated a claim for relief against Ms. Montgomery individually. We further conclude that appellants stated a claim for relief against Ms. Montgomery in her capacity as administrator of her mother's estate. We reject appellants' argument that the probate division of the circuit court should have re-opened the estate under section 472.013¹ due to fraud. We reverse and remand the case for further proceedings.

I. BACKGROUND

In 1996, Mr. and Mrs. Weems purchased a home formerly owned by Ms. Anna Belle Randolph. They purchased the home from Ms. Randolph's daughter, Mary Jean Montgomery, who was the conservator of her mother's estate. When the Weems attempted to sell the home in 1999, they had difficulty due to the presence of an underground heating oil tank on the property. The Weems claim that they were unaware of the tank before they bought the home.

In August 2001, the Weems filed a twocount petition against Ms. Montgomery for fraud and constructive fraud. By this time, Ms. Randolph had died. In their petition, the Weems named Ms. Montgomery as a defendant in three separate capacities: (1) individually, (2) as conservator of Ms. Randolph's conservatorship estate, and (3) as administrator² of Ms. Randolph's estate. The Weems alleged that Ms. Montgomery, as well as her agents and representatives, had misrepresented the condition of the property by denying the existence of any underground tanks. Ms. Montgomery filed two separate motions to dismiss related to the claims against her. The probate division of the circuit court dismissed all of the claims with prejudice.

The Weems appeal the dismissal of the claims against Ms. Montgomery individually and in her capacity as administrator of her mother's estate.

II. STANDARD OF REVIEW

A. The Motions to Dismiss Were Not Transformed into Motions for Summary Judgment

The parties disagree over the standard of review that governs this appeal. Although this appeal involves a judgment in which the circuit court "dismissed" the Weems' claims, Ms. Montgomery submits that we should review the appeal under a summary judgment standard because the circuit court considered matters beyond the pleadings in its ruling, thereby transforming the motions to dismiss into motions for summary judgment.

Rule 55.27(a)³ contemplates the transformation of a motion to dismiss into a motion for summary judgment when the parties submit for the court's consideration matters outside of the pleadings. Rule 55.27(a) says in pertinent part:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 74.04. All parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 74.04.

Such a transformation may occur even when the circuit court characterizes its ruling as a dismissal. King Gen. Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 498-99 (Mo. banc 1991). In King, a building owner filed a motion to dismiss a subcontractor's two-count petition for breach of contract and tortious interference of contract. Id. at 498. The owner attached four exhibits to its motion: copies of the original petition in a previously-litigated case arising out of the same facts, the underlying contract, the court order in the previously-litigated case granting the owner's motion for directed verdict, and the court's judgment in that case. Id. at 499. The subcontractor's response to the motion included copies of the jury instructions from the previously litigated case, a partial transcript of the testimony in that case, and a copy of the owner's motion for directed verdict in that case. Id.

The Missouri Supreme Court held that the "acceptance and consideration of this evidence by the court effectively `transformed' the proceeding to one under Rule 74.04." Id. In so doing, the court rejected the argument that due process always requires a hearing before the trial court may rule on such a "transformed" motion for summary judgment. The court said:

[The subcontractor] had abundant opportunity to present any evidence it had and seven months after receiving [the owner's] motion, [the subcontractor] filed its affidavit with more than 50 pages of exhibits attached. The court had before it the original petition in King I, all relevant portions of the transcript addressing [the owner] and [the subcontractor] from the previous action, a copy of the directed verdict order, and a copy of the judgment from King I. We are at a loss to see what further, short of calling the trial judge from King I as a witness, [the subcontractor] could have put before the hearing court.

Id. at 500. See also Hatfield v. McCluney, 893 S.W.2d 822, 829 (Mo. banc 1995) (litigant was not denied a reasonable opportunity to present material pertinent to claim where court held evidentiary hearing in response to estate's motion to dismiss, parties were aware that dispositive issue was applicability of section 473.444, no complaint was made at or before hearing that evidence was being presented, and litigant's attorney did not request continuance of hearing to present additional evidence or affidavits).

Like the movant in King, Ms. Montgomery attached several exhibits to her motions to dismiss, including a copy of the residential real estate contract; a copy of the seller's disclosure statement; a copy of the certificate of the clerk of the probate court confirming the decedent's death; a copy of the probate division's order regarding the Weems' objections to the conservator's final settlement; a copy of the affidavit of publication and notice of filing of an affidavit in and of an estate of less than $40,000; and the affidavit of Ms. Montgomery. In its judgment, the circuit court relied upon some of these exhibits as grounds for dismissing appellants' claim against Ms. Montgomery as an individual.

Unlike the party opposing dismissal in King, however, the Weems did not submit any evidence beyond the pleadings. They responded to the motions to dismiss by objecting, among other reasons, that the circuit court should disregard Ms. Montgomery's factual assertions because such assertions were "completely out of place in a motion to dismiss" and "not appropriately considered in a motion to dismiss." By their actions, therefore, the Weems did not automatically convert the motions to dismiss into motions for summary judgment. Cf. Geary v. Mo. State Employees' Ret. Sys., 878 S.W.2d 918, 921 (Mo.App. W.D. 1994) ("When ... the plaintiff introduces evidence beyond the pleadings, [it] is charged with knowledge that the defendant's motion is thereby `automatically converted to a motion for summary judgment.' ") (quoting Hyatt Corp. v. Occidental Fire & Cas. Co., 801 S.W.2d 382, 392 (Mo.App. W.D.1990)).

The Weems also lacked any notice that the circuit court intended to treat the motions to dismiss as summary judgment motions. Cf. King, 821 S.W.2d at 500 (acknowledging generally that a party should have an "opportunity to assemble and present evidence in support of his position"); Hatfield, 893 S.W.2d at 829 (noting that the court held an evidentiary hearing in response to the motion to dismiss and that the party opposing the motion did not object to consideration of such evidence at the hearing). Accordingly, we conclude that the motions to dismiss were not transformed into motions for summary judgment and we review this appeal under the standard that governs motions to dismiss.

B. Standard of Review for Motions to Dismiss

We review de novo the grant of a motion to dismiss, examining the pleadings to determine whether they invoke principles of substantive law. See Koger v. Hartford Life Ins. Co., 28 S.W.3d 405, 409-10 (Mo.App. W.D.2000). "The pleadings are liberally construed and all alleged facts are accepted as true and construed in a light most favorable to the pleader." Id. at 410. "In making our determination, we may not address the merits of the case or consider evidence outside the pleadings." Brennan By and Through Brennan v. Curators of the Univ. of Mo., 942 S.W.2d 432, 434 (Mo.App. W.D.1997).

III. LEGAL ANALYSIS

A. Dismissal of the Claim Against Ms. Montgomery Individually

1. Ms. Montgomery Can Be Held Individually Liable for Her Torts Under Section 475.132.2

The Weems contend that Ms. Montgomery is individually liable for statements that she made—either directly or through her agents and representatives—while she was conservator of her mother's estate. "The conservator is individually liable for obligations arising from ownership or control of property of the estate or for torts committed in the course of administration of the estate only if he is personally at fault." § 475.132.2. Case law interpreting section 475.132.2 is sparse.⁴ Section 475.132.2 is, however, nearly identical to two provisions of the Uniform Probate Code (UPC), one of which applies to conservators⁵ and one of which applies to personal representatives.⁶ Although the comment accompanying...