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M.W. v. S.W.

Court of Appeals of Missouri, Eastern District, First Division

December 5, 2017

M.W., Plaintiff/Appellant,
v.
S.W. and W.M., Defendants/Respondents.

         Appeal from the Circuit Court of St. Louis County Honorable Ellen Ribaudo

          SHERRI B. SULLIVAN, J.

         Introduction

         M.W. (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.[1]

         Factual and Procedural Background

         Appellant 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.

         In 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.

         On May 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 W.M.[2] 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.

         Appellant's 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 affections.[3]

         The 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.

         W.M. 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.

         S.W. 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.

         The trial court heard and granted W.M.'s motion for summary judgment without specifying grounds therefor.

         With 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.

         The 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.

         Points on Appeal

         In his 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.

         In his 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 action.

         Standard of Review

         On 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 ...


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