IN THE CIRCUIT COURT OF THE COUNTY OF FRANKLIN

STATE OF MISSOURI

 

FAYE OWSLEY, et al.                                   )

                                                                        )           Case Number 06AB-CC00137

            Plaintiffs,                                            )

                                                                        )           Division VII

v.                                                                     )

                                                                        )

JERRY D. COOPER III, et al.                       )

                                                                        )

            Defendants                                          )

 

SUGGESTIONS IN OPPOSITION TO DEFENDANT COOPER’S MOTION

TO DISMISS FOR FAILURE TO STATE A CLAIM

 

Background

Defendant Cooper (herinafter “Cooper”), by and through his attorneys of record, filed a Motion to Dismiss, alleging Plaintiffs failed to state a cause of action against Cooper.  Cooper subsequently filed a memorandum (hereinafter “Memorandum”) in support of his motion.

 

Issue

The issue is whether this Court should sustain Cooper’s Motion to Dismiss. 

 

Standard of Review

A motion to dismiss for failure to state a cause of action is a test of whether the Plaintiff has alleged the elements of a cause of action.  Auto Alarm Supply Corp. v. Lou Fusz Motor Co., 918 S.W.2d 390, 393 (Mo. App. E.D. 1996).  In viewing a petition under attack by a motion to dismiss, the Court must give the petition the benefit of every reasonable intendment favorable to the pleader.  Id. at 392.

 

Argument

This Court should overrule Cooper’s Motion to Dismiss.  Plaintiff’s First Amended Petition sufficiently states a cause of action against Cooper.  Plaintiff’s First Amended Petition sufficiently alleges that any purported settlement among or between the parties is void and of no effect.

 

Analysis

R.S.Mo. §§ 507.150 and Supreme Court Rule 52.02 require that a next friend or guardian ad litem execute and receive approval of a surety bond prior to acknowledging satisfaction or discharge of any judgment on behalf of an infant.  Both the statute and the rule state that failure to execute such approved bond will render “absolutely void and of no effect” any release, receipt or acknowledgement of satisfaction or discharge entered into on behalf of the infant.

Here, Eleanor Bangs was named next friend of Plaintiffs in Case Number 04AB-CC00118.  She did not execute or receive approval of a surety bond in that case, or in any other case. 

Cooper nevertheless argues that the settlement in Case Number 04AB-CC00118 should remain in full force and effect.  Cooper argues that, despite being named next friend in Case Number 04AB-CC00118, Bangs should be considered a conservator.  Cooper argues that Bangs should be treated as a conservator because (1) she was temporarily named as a conservator in an unrelated case in a different county, (2) Cooper’s insurance company issued a check that included the word “Conservator”, and (3) the Court was “well aware” that Bangs was a conservator.

 

Cooper’s First Argument – Bangs was a Conservator in an Unrelated Case

Cooper first argues that Bangs should be treated as a conservator because she was temporarily named as a conservator in an unrelated case in a different county.  (See paragraphs 3 and 4 of Cooper’s Memorandum.) 

The purpose of R.S.Mo. §§ 507.150 is to protect minors from the misapplication or misuse of the minors’ property.  Kress v. Lederle Laboratories, 901 S.W.2d 206, 209 (Mo. App. E.D. 1995).  In this case, Bangs was easily able to misapply and misuse the settlement proceeds because she never posted any type of bond in any case.  Thus, none of the settlement proceeds were protected. 

Bangs also, inexplicably, was named as a conservator in the unrelated probate case without posting a bond with that court.  Letters of conservatorship in a probate case may be issued only after the posting of a bond.  R.S.Mo. §475.105.  Because no bond was ever posted in that case (or in any other case) a question of fact arises as to whether the Letters of Guardianship and Conservatorship of Minor were properly issued.  I.e., substantial evidence supports the argument that Bangs was not effectively a conservator in any case, even the probate case.

Also, even if Bangs was properly named as a conservator in the separate probate proceeding, she was invariably treated as a next friend in Case Number 04AB-CC00118.  All court documents in Case Number 04AB-CC00118 refer to Bangs as a next friend.  No court filings in Case Number 04AB-CC00118 refer to Bangs as a conservator.  All captions on all court documents refer to Bangs as a next friend.  Additionally, the Court addressed Bangs in open court as “Next Friend”.  (See page 3 of Exhibit C of Plaintiff’s First Amended Petition.)

 

Cooper’s Second Argument – His Insurance Company Issued a Check Referring to Bangs as “Conservator”

Cooper’s second argument is that Bangs should be treated as a conservator because Cooper’s insurance company issued a check that included the word “Conservator”.  (See paragraph 9 of Cooper’s Memorandum.)

Cooper, although providing no legal authority in support of his argument, basically argues that naming someone as a conservator on a check can transform that person from a next friend to a conservator. 

The Missouri Revised Statutes set forth a procedure for converting someone from a next friend to a conservator.  (See R.S.Mo. 507.186.)  However, no one so much as attempted to comply with that statute.  Cooper’s Memorandum fails to explain how including the word “conservator” on a draft or check effectively circumvents the requirements of R.S.Mo. §507.186.

It should also be noted that the check that Bangs ultimately received did not designate her as a conservator.  (See Exhibit D attached to Cooper’s Memorandum.)

 

Cooper’s Third Argument – The Court was “well aware” that Bangs was a Conservator

Cooper’s third argument is that Bangs should be treated as a Conservator because the Court in Case Number 04AB-CC00118 was “well aware” that Bangs “was the duly appointed Guardian/Conservator”.  (See paragraph 7 of Cooper’s Memorandum.)

Cooper’s argument is based entirely on the allegation that, during the proceedings on May 5, 2004, someone allegedly made the court aware that Bangs “was” the “duly appointed” guardian or conservator.  Cooper’s statement is entirely inaccurate and misleading.  No one stated that Bangs “was” the conservator or guardian.  Bangs simply testified that xxxxxxxxx filed a petition seeking to appoint her as a conservator.  (See page 4 of Exhibit C of Plaintiffs’ First Amended Petition.)  Bangs also did not testify that she had received letters of conservatorship.  Bangs did not testify that she had been named a conservator.   

It is also difficult to imagine how the Court could have been “well aware” that Bangs was in some way a conservator or guardian when, during the same court hearing, the Court referred to Bangs as a “Next Friend”.  (See page 3 of Exhibit C of Plaintiffs’ First Amended Petition.)

 

Conclusion

            This Court should overrule Mr. Cooper’s Motion to Dismiss.  Plaintiffs have sufficiently pleaded all facts needed to support a claim against Cooper.  Whether the original settlement between Cooper’s insurance company and Ms. Bangs was void turns on the issue of whether Bangs was a next friend.  Although this is an issue that should ultimately be determined by a trier of fact, overwhelming evidence already before the Court supports Plaintiffs’ contention that Bangs was a next friend.

 

                                                                                    Respectfully submitted,

                                                                                    THE SMITH LAW FIRM, LLC

 

 

                                                                                    __________________________

                                                                                    Neil Smith, Bar Number 56789

                                                                                    320 E. Walnut, Suite 210

                                                                                    Springfield, MO 65806

                                                                                    (p) 417-869-3535

                                                                                    (f) 800-805-4563

                                                                                    neil@neilsmithlaw.com

 

 

CERTIFICATE OF SERVICE

 

            I certify that a copy of the foregoing was sent via U.S. Mail, postage pre-paid, on the 27th day of September, 2006, to Steven P. Kuenzel, Attorney at Law, PO Box 228, Washington, Missouri, 63090, Gary P. Paul, Attorney at Law, 120 S. Central Ave., Suite 700, Clayton, Missouri, 63105 and Andrew C. Lawson, P.O. Box 172, Washington, Missouri 63090.

 

                                                                                    _________________________

                                                                                    Neil Smith