Court of Appeals of Missouri, Eastern District, First Division
from the Circuit Court of St. Louis County Honorable Ellen
B. SULLIVAN, J.
(Appellant) appeals from the trial court's summary
judgments in favor of S.W. and W.M. We affirm in part and
reverse in part.
and Procedural Background
and S.W. were married on August 17, 1991. In 2000, S.W. gave
birth to twins of which Appellant is the biological father.
In 2001, S.W. gave birth to a second set of twins of which
Appellant is not the biological father. Appellant only
discovered he was not the father of the second set of twins
approximately ten years after their birth, after a series of
events beginning with W.M. leaving a letter in
Appellant's mailbox confessing to a lengthy affair with
S.W. and his suspicions the second set of twins were his.
Appellant confronted S.W., who admitted to the affair. At
this point, no one knew for certain who the biological father
of the twins was.
early 2011, after receipt of W.M.'s letter, Appellant
ordered a paternity test on the second set of twins, which
determined he was not their biological father. A test
determined W.M. was their biological father. Appellant and
S.W. filed a petition for adoption of the twins, in which
W.M. intervened and consented. On July 12, 2011, the judgment
of adoption of the twins by Appellant and S.W. was entered.
14, 2012, S.W., as petitioner, filed a petition for
dissolution of marriage against Appellant, as respondent, in
St. Charles County Circuit Court. Appellant filed a six-count
petition for damages in the pending dissolution proceeding,
Count I alleging fraud against S.W.; Count II alleging
conspiracy to commit fraud against S.W. and W.M., jointly and
severally; Count III alleging negligence against S.W.; Count
IV alleging unjust enrichment/constructive trust against the
Law Offices of [S.W.], LLC; Count V alleging deceptive
practices/violation of Missouri Merchandising Practices Act
(MMPA) against the Law Offices of [S.W.], LLC; and Count VI
alleging violation of Alienation of Affections Act against
St. Charles County Circuit Court Judge Terry Cundiff stated
he would not entertain any claims based on marital
misconduct, so Appellant withdrew his petition and filed it
in St. Louis County.
six-count petition for damages against S.W., Law Offices of
[S.W.], and W.M. filed in St. Louis County Circuit Court,
13SL-CC03151, alleged fraud; conspiracy; negligence; unjust
enrichment/constructive trust; and deceptive
practices/violation of MMPA, as in his original withdrawn
petition; but in Count VI alleged a claim for restitution of
necessities against W.M. instead of alienation of
bifurcated dissolution proceeding in St. Charles County
Circuit Court took place on January 3, 2014, and December 10,
2014. Appellant dismissed his case No. 13SL-CC03151 in St.
Louis County petition voluntarily without prejudice on
February 24, 2015; said dismissal was signed "So
Ordered" by the Honorable Colleen Dolan. On February 5,
2016, Appellant filed the case sub judice No.
16SL-CC00394 in St. Louis County Circuit Court. This
five-count petition for damages alleges fraud in Count I
against S.W.; conspiracy to commit fraud in Count II against
S.W. and W.M., jointly and severally; negligence in Count III
against S.W.; restitution of necessities in Count IV against
W.M.; and spoliation of evidence against S.W. and W.M. in
Count V. S.W. and W.M. filed separate answers to the
respective claims asserted by Appellant against each of them.
filed a motion for summary judgment on the claims against
him, accompanied by a 19-paragraph statement of
uncontroverted facts and one exhibit, the deposition of
Appellant. Appellant responded to W.M.'s statement of
uncontroverted facts and filed a memorandum in opposition, 10
exhibits, and a statement of additional uncontroverted facts.
filed a motion for summary judgment on the claims against
her, along with four exhibits, her statement of
uncontroverted facts, and a memorandum in support. Appellant
filed a memo in opposition to S.W.'s motion, alleging the
claims within were affirmative defenses she had not asserted.
trial court heard and granted W.M.'s motion for summary
judgment without specifying grounds therefor.
leave of court, S.W. filed an amended answer to include the
affirmative defenses outlined in Appellant's response and
an amended 20-paragraph statement of uncontroverted facts
along with eight exhibits in support.
trial court granted S.W.'s motion for summary judgment
without specifying grounds therefor. This appeal follows.
Further facts will be offered as necessary to the resolution
of the points on appeal.
first point, Appellant contends the trial court erred in
granting summary judgment on his claims of conspiracy to
commit fraud and restitution of necessities against W.M. for
insufficient evidence because W.M. did not respond to
Appellant's additional statement of uncontroverted
material facts, thus admitting them and thereby establishing
the missing factual basis for Appellant's claims.
Appellant also suggests the doctrine of spoliation of
evidence further precludes summary judgment.
second point, Appellant asserts the trial court erred in
granting summary judgment on his claims against S.W. as
barred for being brought and voluntarily dismissed twice
without stipulation or judicial approval under Rules 67.01
and 67.02 because Appellant obtained leave of court for the
second dismissal. Appellant further argues his tort claims
against S.W. are not barred by merger into the dissolution
appeal, an appellate court reviews summary judgment de
novo. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply
Corp.,854 S.W.2d 371, 376 (Mo.banc 1993). Summary
judgment is proper when the movant shows a right to judgment
flowing from facts about which there is no genuine dispute.
Id. at 378. A genuine dispute exists when the issue,
or dispute, is a real and substantial one; one consisting not
merely of conjecture, theory, and possibilities. Id.
Evidence in the record is viewed in the light most ...