ADAMS v. USAA CAS. INS. CO

287 S.W.3d at 686-87. Rule 74.04(c) requires summary judgment movants not only to state summarily the legal basis for their motion and file a legal memorandum explaining why summary judgment should be granted, but also to submit a statement of uncontroverted material facts. Id. In pertinent part, the rule states that motions for summary judgment must set out with particularity material facts "with specific references to the pleadings, discovery, exhibits or affidavits" in asserting the lack of a genuine issue of fact. Mo. R. Civ. P. 74.04(c)(1) (2009). Summary judgment borders on a denial of due process; therefore, strict compliance with the rule's requirements is necessary to prevent summary judgment proceedings "from crossing over the border." Jones v. Hous. Auth. of Kansas City, 118 S.W.3d 669, 674 (Mo.App. W.D. 2003).

Neither USAA nor Shelter submitted a statement of uncontroverted facts. Shelter filed only an Amended Motion to Dismiss, arguing that the Petition failed to state a claim and to plead with particularity the false and material representations made by Defendants. Shelter's motion referenced only Plaintiffs' Petition and the Southern District opinion to support its argument for dismissal. In its Motion for Summary Judgment, USAA argued that its alleged interference did not induce or cause a breach and that Plaintiffs failed to so allege. USAA also argued that Plaintiffs did not allege their claim of fraud with the necessary particularity. To support its motion, USAA submitted only a copy of an Interlocutory Order issued in the Oregon County matter and a memorandum of law. This memorandum expanded USAA's argument to assert collateral estoppel and justification.

Clearly, neither Defendant was required to comply substantially with the requirements of Rule 74.04; moreover, each defendant was allowed to raise new factual issues, grounds and arguments to which Plaintiffs were not afforded a sufficient opportunity to respond. Wallingsford, 287 S.W.3d at 686-87. Only eight days after the Oregon County circuit court issued its judgment, the trial court lifted the stay, announced its decision to treat Defendants' motions as ones for summary judgment, and required Plaintiffs to file any response within thirty days. Here, the trial court did not require Defendants to proceed with their motions in accordance with Rule 74.04, and did not provide the parties opportunity to conduct any discovery prior to proceeding summarily.

Defendants' lack of compliance, coupled with the prejudice caused to Plaintiffs, necessarily requires reversal as to the trial court's grant of summary judgment on Plaintiffs' tortious-interference count. Id. at 686-87. Accordingly, we reverse the trial court's grant of summary judgment for Defendants and remand the matter for further proceedings, with the instruction that the Plaintiffs be afforded adequate time to conduct discovery and to amend their pleadings accordingly, if required. "When faced with a motion for summary judgment asserting that a claimant cannot prove all the essential elements of the cause of action asserted, the motion can only be sustained after the claimant is entitled to a reasonable period of discovery." Eastwood v. N. Cent. Mo. Drug Task Force, 15 S.W.3d 65, 70 (Mo.App. W.D. 2000).

We next consider the court's ruling as to Plaintiffs' conspiracy-to-commit fraud count, treating it as a grant of a motion to dismiss. George Ward Builders, Inc., 157 S.W.3d at 646. A motion to dismiss for failure to state a claim upon which relief can be granted is a challenge to the sufficiency of the petition. Chochorowski 295 S.W.3d at 197. Upon review, we assume all pleaded facts are true, giving the pleadings their broadest intendment and construing all allegations favorable to the plaintiff. Id. It is not our function to weigh the allegations to determine their credibility or persuasiveness. Id. Rather, we review the petition almost academically to determine if the facts alleged meet the elements of a recognized cause of action, or a cause that could be brought in the case. Id. Determination of factual questions or whether the party is entitled to relief on the merits is not appropriate on a motion to dismiss. Id.

We conclude that Plaintiffs' conspiracy count alleged enough facts to survive a motion to dismiss. Chochorowski 295 S.W.3d at 197. Plaintiffs allege Defendants, with the objectives of unlawfully depriving Plaintiffs of their right to recover their contracted-for uninsured motorist benefits from Shelter and reducing each Defendants' financial exposure, determined between themselves that USAA would increase King's coverage, and that USAA did so. These allegations would support the first four conspiracy claim elements. See Misischia, 30 S.W.3d at 864 (elements for conspiracy include: 1) two or more persons; 2) with unlawful objective; 3) after meeting of minds; 4) committed at least one act in further of conspiracy; 5) thereby causing damage to plaintiffs). Plaintiffs' allegation that Shelter's subsequent refusal to pay the uninsured motorist benefits caused them to suffer damages, including increased attorney's fees and mental pain and suffering, would support the fifth element. A cause of action for conspiracy is necessarily premised upon an underlying tort claim. Id. Because Plaintiffs' conspiracy count is based on their tortious-interference-with-contractual-relations claim, we examine the sufficiency of the allegations as to that claim, as well.

We further conclude Plaintiffs' tortious-interference claim sufficiently alleges the existence of a contract with Shelter; USAA's knowledge of the contract; intentional interference by USAA inducing or causing a breach of the contract by Shelter; and resulting damage to Plaintiffs. Misischia, 30 S.W.3d at 863. Not every interference with contractual relations gives rise to a claim for damages; however, where such interference is wrongful, a cause of action exists. Pillow v. Gen. Am. Life Ins. Co., 564 S.W.2d 276, 283 (Mo.App. 1978).

Although no liability for procuring a breach of contract exists if the breach results from an act one has a definite legal right to perform without any qualification, "[i]t is not justification to knowingly procure the breach of a contract where the defendant acted with an improper purpose and sought not only to further his own interests, but in doing so employed improper means." Id. at 281-82. Plaintiffs' claim that, in return for a benefit conferred by Shelter, USAA "liberalized" its policy, offering Plaintiffs a larger sum than it was required by Missouri law to pay and informing Shelter of this offer prior to Shelter's denial of benefits, if true, is an allegation from which one could infer: 1) that USAA acted with the improper purpose of enabling Shelter to evade paying uninsured motorist benefits to Plaintiffs; 2) that USAA sought to further its and Shelter's interests by minimizing their combined financial exposure; and 3) that USAA employed improper means to do by acting in concert with Shelter. Accordingly, we also conclude that Plaintiffs allege enough facts to support absence of justification. Id.

Accepting all properly pleaded facts as true, giving the pleadings their broadest intention, and construing all allegations favorably to Plaintiffs, we cannot agree with the trial court's determination that the Petition failed to show any ground for relief, nor with the court's conclusion that there was "no realistic likelihood that Plaintiffs could amend their Petition to state a viable claim[.]" Chochorowski 295 S.W.3d at 197. The trial court erred in dismissing Plaintiffs' conspiracy to commit fraud count.

Conclusion

The judgment of the trial court is reversed and remanded for further proceedings in accordance with this opinion.

KURT S. ODENWALD, P.J., and GEORGE W. DRAPER III, J., concur.