Opinion

In the Missourt Court of Appeals

Castern District

DIVISION FOUR

DR. JOHN B. WELTMER, JR., ) ED99948

) ED99553

)

Appellant, ) Appeal from the Circuit Court

) of St. Louis County

vs. )

)

SIGNATURE HEALTH SERVICES INC. ) Honorable Gloria C. Reno

fikfa PREMIER CARE, INC., ST. LOUIS — )

COUNTY ORTHOPEDIC GROUP INC., _ )

SLCOG PROPERTY MANAGEMENT & )

LEASING COMPANY, LLC, and )

PREMIER CARE LEASING, LLC )

)

Respondents. ) Filed: January 21, 2014

Introduction

Dr. John B. Weltmer, Jr, (Weltmer) appeals the trial court’s grant of summary

judgment in favor of Signature Health Services Inc., f/k/a Premier Care, Inc., St. Louis

County Orthopedic Group Inc. (SLCOG), and SLCOG Property Management & Leasing

Company, (SLCOG Property), LLC and Premier Care Leasing, LLC (collectively,

Signature), On appeal, Weltmer argues the trial court erred in granting summary

judgment because there were genuine issues of disputed material fact and there was no

accord and satisfaction, erred in granting Signature’s motion for attorney fees, and erred

in denying Weltmer’s motion for additional time to conduct discovery. We reverse in

part and remand.

Background and Procedure

Weltmer was both a shareholder and employee of Signature, working at the South

Division office. He entered into an Employment Agreement for Shareholder Physician

(the Employment Agreement) and a Shareholder Agreement/Stock Purchase and Transfer

Restriction Agreement (the Shareholder Agreement) in 2001. Pursuant to the

Employment Agreement, Weltmer could be terminated for cause by an affirmative vote

of at least two-thirds of the members of the Signature board of directors. Weltmer was

terminated for cause on August 5, 2009. Following Weltmer’s termination, Signature

issued Weltmer two checks for $21,850.00 and $146,884.80, representing its calculation

of the value of Weltmer’s equity interest in Signature. Weltmer signed and deposited

both checks, writing “partial buy out” on the backs of both checks.

Weltmer filed suit against Signature. In his second amended petition, Weltmer

claimed, as relevant to this appeal, breach of the Employment Agreement, asserting that

he was not terminated for cause and the board of directors did not vote on whether to

terminate his employment; and breach of the Shareholder Agreement, asserting that

Signature’s liquidation of Weltmer’s equity interests was not done in accordance with

generally accepted accounting principles and violated the Shareholder Agreement.

Signature moved for summary judgment, arguing it was entitled to judgment as a

matter of law because Signature did not breach the Employment Agreement in Weltmer’s

termination, Weltmer’s act of cashing the checks constituted an accord and satisfaction of

his claims, and Signature properly calculated Weltmer’s equity interests. Signature

asserted through exhibits and affidavits that at the time of Weltmer’s termination, there

were seven members on Signature’s board of directors. At a special meeting in July of

2009, all seven members voted to terminate Weltmer for cause. The written resolution

set forth the reasons for Weltmer’s termination as “including but not limited to”:

i, making false allegations to his peers and the general public of the

alleged occurrence of financial and tax improprietics of

[Signature]; and

ii, making false allegations of the misuse of profits and distribution in

an ambulatory surgery center owned in part by [Weltmer] ... ; and

iii. using a credit card, personally guaranteed by another physician in

[Weltmer]’s division, for personal use without the ability or intent

to repay; and

iv, using a [Signature] issued credit card for personal use without the

ability or intent to repay; and

v. communicating with [Signature] employees in an unprofessional

and derogatory manner.

Martin Zaegel (Zaegel), Signature’s Chief Financial Officer and a certified public

accountant, attested that he calculated Weltmer’s equity interests in Signature as follows.

Weltmer’s Signature stock was valued at $2,000.00 for purposes of liquidation.

Weltmer’s interest in the SLCOG was $142,252.00, calculated using 2008 tax documents

as: the total assets ($3,464,471.00), less liabilities ($914,040.00), less the book value of

the building ($558,898.00), divided by the number of owners (14). Zaegel subtracted

from Weltmer’s total interest in SLCOG $18,769.20 for personal expenses Weltmer had

charged to Signature’s credits cards but not repaid, for a total equity interest in SLCOG

of $125,482.80 ($142,252.00, plus $2,000.00, less $18,769.80). From Weltmer’s total

equity interest in SLCOG, Zaegel subtracted $250,000.00 for the amount Weltmer had

received in advances from Signature but had not repaid. Applying this debt, the balance

Weltmer owed Signature was $124,517,20.

Next, Zaegel valued Weltmer’s interest in SLCOG Property at $271,402.00,

calculated using 2008 tax documents as: total assets ($6,178,960.00), less liabilities

($1,760,092.00), divided by the number of owners (14). Zaegel subtracted the amount

Weltmer owed Signature from his interest in SLCOG Property, for a total equity interest

in SLCOG Property of $146,884.80. Last, Zaegel valued Weltmer’s interest in Premier

at $21,850.00, calculated using 2008 tax documents as: total assets ($3,046,625.00), less

liabilities ($2,703,696.00), divided by the number of owners (16).

Accordingly, Zaegel issued Weltmer two checks for his equity interests in

Signature, SLCOG, SLCOG Property, and Premier: one check in the amount of

$21,850.00 and one check in the amount of $146,884.80. The checks were offered with

the following statement:

[Weltmer’s] equity interests in Signature, SLCOG, [Premier] and

SLCOG Property have been terminated effective today pursuant to the

various shareholder/operating agreements. His interests in such entities

have been valued in accordance with the applicable agreements. The

redemption proceeds payable to Dr. Weltmer from these entities, reduced

by setoff of amounts due and payable to Dr. Weltmer effective today,

result in a net balance due to Dr, Weltmer of $168,734.80. Checks

payable to Dr. Weltmer in that amount are enclosed herewith.

Weltmer signed and cashed the checks, writing “partial buy out” on the backs of both

checks. Signature claimed that by cashing the checks Weltmer accepted the proffered

amount as a full and final settlement of his equity interests in Signature, and that,

moreover, Weltmer admitted in his deposition he did not know whether Zaegel’s

calculations were incorrect,

In response to Signature’s motion for summary judgment, Weltmer asserted there

were more than seven members on the board of directors, attaching Signature’s 2009

Annual Registration Report filed with the Missouri Secretary of State, which named 59

directors, Thus, he claimed the seven members who voted were substantially less than

two-thirds of ali the board of directors. Moreover, he asserted that in an October 2009

(two months after the vote to terminate him) conversation with Katherine Burns,

president of Signature in 2009 and a member of Signature’s board of directors, she did

not know he had been terminated. In addition, Weltmer denied the allegations upon

which his termination for cause was based, and argued the written resolution setting forth

the reasons for his termination was unauthenticated hearsay. While Weltmer agreed that

his wife had charged approximately $17,000 on the company credit card, he asserted

everyone used the company credit cards and paid off the charges through bonuses.

Weltmer attached deposition testimony in which he asserted his intention to repay the

charges.

As for the amount of his liquidated equity interest in Signature, Weltmer argued

he had received no cost basis for the amounts Signature sent him and thus could not

determine whether the amounts were accurate. He attached a portion of his deposition,

his response to interrogatories, and an affidavit from his wife, Peggy Weltmer, in which

he calculated what he believed Signature owed him, based on information he and his wife

had received from Zaegel in 2008. According to Weltmer’s calculations, Signature

owned him at least $1,058, 166.34 for his liquidated equity interest in Signature.

As for whether he had repaid the $250,000.00 advance, Weltmer attached an

affidavit of Becky Kissel (Kissel), a certified public accountant who handled his taxes, in

which she attested that her review of Weltmer’s W-2 forms from Signature showed his

income was significantly higher than the amounts he received, indicating that Signature

had held back a portion of Weltmer’s income, such as for the repayment of a loan or

advance, And yet, Weltmer also attached a portion of his deposition in which he agreed

he owed Signature $250,000.00. Weltmer agreed he endorsed and cashed the two

liquidation checks he received from Signature. He also agreed that although he wrote

“partial buy out” on the back, he was not told by Signature that the checks were a partial

buy out. He argued, however, that his cashing the checks did not constitute an accord

and satisfaction, because Signature failed to show any express provision indicating that

acceptance of payment was a full and final settlement of his claims.

After Signature filed its motion for summary judgment, Weltmer filed a motion

for additional time to conduct discovery. After a hearing, the trial court granted him

fifteen days to supplement his motion, He did so with an affidavit from his attorney,

Nelson Mitten (Mitten), attesting Signature had “not produced any financial records,”

despite assurances that it would. Mitten further attested he needed to depose Zaegel on

the basis for the $2,000.00 stock valuation, the basis for his determination of the “book

value” of a building of $558,898.00, whether there were any other assets or Habilities for

Premier, and whether any of the $250,000.00 advance had been repaid. Mitten noted

Zaegel had not initially been identified by Signature as an expert witness.' Mitten

attested he had requested depositions for the signatory board of directors to determine the

cause for Weltmer’s termination, but Signature filed a motion for a protective order

' Mitten attached Signature’s answer to Weltmer’s interrogatory requesting the names of any expert

witnesses, retained and non-retained, that Signature expected to testify at trial, in which it stated “it ha[d]

not determined whether it intend[ed] to calf any expert witness at trial” but reserved the right to supplement

its response at a jater date.

preventing the depositions. The record does not show that the trial court ruled on

Weltmer’s motion for additional time to conduct discovery.

After a hearing on the motion for summary judgment, the trial court ordered the

parties “to provide evidence as to the actual board members as of the time of the board

vote regarding Doctor Weltmer’s termination.” Signature submitted an affidavit of

Andrew Schwartzkopt (Schwartzkopt), general counsel for Signature, with attached

exhibits attesting to the following. The Ninth Amended and Restated Bylaws of

Signature Health Services, Inc. (Bylaws), which were in effect July of 2009, provide that

the board of directors shall be comprised of up to fifteen members, consisting of one

shareholder for every ten employed physicians in the orthopedic and OB/GYN

departments, one CEO, and up to two community members. In 2008, Signature

shareholders elected six members to the board of directors. At the time of the 2008

elections, there were 40 orthopedic physicians and 27 OB/GYN physicians. These six

elected board members plus CEO Jan Vest (Vest) held a special meeting and voted to

terminate Weltmer for cause, as was reflected in the written resolution signed by all

seven members of Signature’s board of directors. Schwartzkopt attested the written

resolution from the special board meeting was a business record maintained in the normal

course of business, and that he was familiar with and recognized each of the seven board

members’ signatures.

In his memorandum to the trial court, Weltmer repeated his argument that the

Missouri Secretary of State’s website listed 59 directors. He recognized but dismissed

the contrary language of the Bylaws and Vest’s deposition in which he specifically

testified that all of Signature’s physicians were listed as directors on the Missouri

Secretary of State website to comply with workers’ compensation rules and “{n]Jot

[because] they [were] on the Board of Directors.”

The trial court granted summary judgment to Signature in a “Final Order and

Judgment” on December 13, 2012. Weltmer timely appealed. On January 16, 2013,

Signature moved for attorney fees, asserting it had incurred attorney fees and expenses in

the amount of $129,945.03.? Signature further argued that it was the prevailing party and

thus, pursuant to the Employment Agreement between Signature and Weltmer, was

entitled to recover its attorney fees, costs, and expenses incurred in defending against

claims of breach of the Employment Agreement. Weltmer argued that Signature’s

motion was out of time, having been filed more than 30 days after the final order and

judgment. The trial court entered final judgment pursuant to Rule 74.01 and awarded

Signature $128,743.03 in fees, costs, and expenses. This appeal follows.

Discussion

Standard of Review

Summary judgment is appropriate where the moving party demonstrates a right to

judgment as a matter of law based on facts about which there is no genuine issue of

material fact. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d

371, 376 (Mo. bane 1993). The movant has the burden to establish both a legal right to

judgment and the absence of any genuine issue of material fact supporting that claimed

right to judgment. Id. at 378. A defending party may establish a right to summary

judgment as a matter of law by showing: (1) facts that negate any one of the elements of

claimant’s cause of action; (2) the non-movant, after an adequate discovery period, has

? This amount of fees and expenses includes Signature’s later motion to amend by interlineation.

* Weltmer’s two appeals were consolidated by order of this Court.

not and will not be able to produce evidence sufficient to allow the trier of fact to prove

the elements of its claims; and (3) there is no genuine dispute as to the existence of each

of the facts necessary to support the movant’s affirmative defense. Meramec Valley R-II

Sch, Dist. v. City of Eureka, 281 S.W.3d 827, 835 (Mo. App. E.D. 2009).

Our review is essentially de novo. Cardinal Partners, L.L.C. v. Desco Inv. Co.,

301 S.W.3d 104, 108 (Mo. App. E.D. 2010). When considering an appeal from summary

Judgment, we review the record in a light most favorable to the party against whom

Judginent was entered, and we afford the non-movant the benefit of all reasonable

inferences from the record. Id. at 108-09. In opposing summary judgment, the non-

moving party may not rely on mere allegations and denials, but must use affidavits,

depositions, answers to interrogatories, or admissions on file to demonstrate the existence

of a genuine issue for trial. Meramec Valley R-ITI Sch. Dist., 281 S.W.3d at 835.

Point I

In his first point on appeal, Weltmer argues the trial court erred in granting

summary judgment in favor of Signature because the court erred in considering the

written resolution from the special meeting, which was unauthenticated hearsay’; and

there remained a genuine issue of material fact as to how many members there were on

Signature’s board of directors and whether there was a factual basis to terminate Weltmer

for cause. Weltmer’s arguments are unavailing.

First, the written resolution was not unauthenticated hearsay and the trial court

properly considered it. “Only evidence that is admissible at trial can be used to sustain or

avoid summary judgment.” United Petroleum Serv., Inc. v. Piatchek, 218 S.W.3d 477,

* We note that Weltmer termed this claim as a genuine issue of material fact; however, it is a legal question

and we consider it as such,

481 (Mo. App. E.D. 2007), To be admissible as evidence, a document must meet a

number of foundational requirements, including relevancy, authentication, the best

evidence rule, and hearsay. Bank of Am., N.A. v. Reynolds, 348 S.W.3d 858, 861 (Mo.

App. W.D, 2011). However, business records are an exception to the hearsay rule and

are admissible at trial “if the custodian or other qualified witness testifies to its identity

and the mode of its preparation, and if it was made in the regular course of business, at or

near time of the ... event, and if, in opinion of the court, the sources of information,

method and time of preparation were such as to justify its admission.” Section 490.680,

RSMo. (2000). When a document meets these statutory requirements, it receives a

“presumptive verity, and so excepts [it] from the hearsay rule.” Davolt v. Highland, 119

5.W.3d 118, 134 (Mo. App. W.D. 2003) (citation omitted). The trial court has discretion

to determine whether a sufficient foundation was laid for the admission of evidence,

including business records, and this Court will not reverse absent a showing the trial

court abused its discretion. Asset Acceptance v, Lodge, 325 §.W.3d 525, 528 (Mo. App.

E.D. 2010).

Here, Signature attached the written resolution setting forth the reasons for

Weltmer’s termination signed by seven members of Signature’s board of directors as an

exhibit to its motion for summary judgment. In response to hearsay challenges from

Weltmer, Signature produced deposition testimony from Vest attesting that he assisted in

preparing the written resolution through review and discussion with the other board

members and Signature’s general counsel, that he witnessed several board members sign

the written resolution, and that Signature’s general counsel discussed the document with

the board of directors both before and after it was drafted. Likewise, Schwartzkopt

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attested via affidavit that the written resolution from the special board meeting was a

business record maintained in the normal course of business, and that he was familiar

with and recognized each of the seven board members’ signatures. Moreover, the written

resolution itself states it was executed on July 1, 2009, the date of the meeting, and the

facsimile stamps included therein show it was signed by the board members between July

| and 7. These exhibits were sufficient to authenticate the written resolution as a

business record by establishing its identity and showing how the document was prepared

and how it was kept. Section 490,680; see also Payne v, Cornhusker Motor Lines, Inc.,

177 S.W.3d 820, 839-40 (Mo. App. E.D. 2005) (requisite foundation for admission of

business record can be established by testimony or affidavit from qualified witness).

Weltmer failed to show the trial court abused its discretion in considering the written

resolution.

Second, there is not a genuine dispute of material fact as to the number of

members of Signature’s board of directors. In reviewing the trial court’s grant of

summary judgment, we apply the same criteria to determine whether summary judgment

was proper. Goerlitz v. City of Maryville, 333 S.W.3d 450, 452 (Mo. bane 2011).

Namely, the party seeking summary judgment bears the burden of establishing both a

legal right to judgment and the absence of any genuine issue of material fact. ITT

Commercial Fin, Corp., 854 8.W.2d at 378, We accept the facts contained in affidavits

or otherwise supporting the motion for summary judgment as true unless contradicted by

the non-moving party’s response to the summary judgment motion. Id.

Here, Signature produced its Bylaws, which specifically provided that the board

of directors shall be comprised of up to fifteen members. Moreover, the Bylaws’ rules

11

allowed the election of one member of the board of directors for every ten employed

physicians in the orthopedic and OB/GYN departments. Signature included exhibits and

affidavits showing that at the time of the relevant election, there were 40 orthopedic

physicians and 27 OB/GYN physicians. Thus, membership of the board of directors was

limited by the Bylaws to up to, but no more than, six physician members, plus the CEO,

and up to two community members. CEO Vest and general counsel Schwartzkopt both

attested that the board of directors was comprised of seven members, all of whom signed

the written resolution voting to terminate Weltmer for cause.

Weltmer’s evidence that the Missouri Secretary of State website listed 59

“directors” was not sufficient to create a genuine issue of material fact. A genuine issue

of material fact exists where the record contains competent evidence that two plausible

but contradictory accounts of essential facts exist. Grissom v. First Nat, Ins. Agency, 364

S.W.3d 728, 732 (Mo. App. S.D, 2012). The dispute must be real and not merely

argumentative, imaginary, or frivolous. Hargis v. JLB Corp., 357 S.W.3d 574, 577 (Mo.

bane 2011). Weltmer’s argument that deeming 59 physicians as “directors” for purposes

of the Missouri Secretary of State’s report made them into the “board of directors,” is

merely argumentative and does not create a genuine dispute. Only genuine disputes of

material fact will preclude summary judgment. Goerlitz, 333 S.W.3d at 453.

Third, Weltmer asserts Signature failed to set forth any facts that would have

given Signature a basis to terminate him for cause, again arguing that the written

resolution was unauthenticated hearsay and hearsay within hearsay. As stated above, the

written resolution was properly considered by the trial court as a business record.

Moreover, in addition to the written resolution, Signature provided the trial court with

12

deposition testimony from Vest that Weltmer was terminated for cause for the reasons set

forth in the written resolution. Although Weltmer denied some of grounds for his

termination for cause (specifically that he intended to repay the charges made on

Signature’s credit cards), he did not deny all of them. Our review of the record does not

show that Weltmer denied making allegations to his peers and the general public of

financial and tax improprieties at Signature, making allegations of the misuse of profits

and distributions by Signature, or communicating with Signature employees in an

unprofessional and derogatory manner. Any one of these grounds could support his

termination for cause. By not denying grounds that could have supported his termination

for cause, Weltmer failed to create a genuine issue of disputed material fact.

The trial court did not err in granting Signature’s motion for summary judgment,

because the court properly considered the written resolution from the special board

meeting, there was no genuine issue of material fact as to either how many members

there were on the board of directors or whether there was a factual basis to terminate

Weltmer for cause.

Point denied,

Point I

In his second point on appeal, Weltmer argues the trial court erred in granting

summary judgment to Signature, because, first, there was no accord and satisfaction;

second, the trial court should not have considered Zaegel’s affidavit; and, third, there

remained a genuine issue of fact with respect to the liquidated amount of Weltmer’s

equity interest in Signature. We agree that there was no accord and satisfaction and that

there existed a genuine issue of material disputed fact precluding summary judgment.

13

“An accord is an agreement for the settlement of a previously existing claim by a

substituted performance. Satisfaction is the performance of the agreement.” City of

Cape Girardeau ex rel. Kluesner Conereters v. Jokerst, Inc., 402 S.W.3d 115, 124 (Mo.

App. E.D, 2013) (citation omitted). An accord and satisfaction is an affirmative defense,

and requires the existence of both components. Id. An accord and satisfaction is itself a

contract, which requires a meeting of the minds, Id, An accord and satisfaction will not

exist unless payment is tendered on the express condition—clearly apparent to the

creditor—that it be accepted in full satisfaction of the claim. Id,

Here, the checks Signature sent to Weltmer were accompanied by a letter stating

that Weltmer’s equity interests in Signature, SLCOG, Premier, and SLCOG Property had

been valued in accordance with the applicable agreements between the parties, reduced

by the amounts owed to Signature by Weltmer, resulting “in a net balance due to Dr.

Weltmer of $168,734.80.” The language of this letter was insufficient to create a contract

for an accord and satisfaction, because there was no express communication that the

payment was intended as satisfaction in full. Compare Clark y. Traders Ins. Co., 951

S,W.2d 750, 752-53 (Mo. App. W.D. 1997) (drafts labeled “in full settlement of the

personal property coverage,” “in full settlement of loss of use coverage,” and “in full and

final settlement of dwelling fire” were sufficient to establish accord and satisfaction of

disputed amount, because checks were tendered on express condition that acceptance

thereof shall be seemed satisfaction in full); McKee Const. Co. v. Stanley Plumbing &

Heating Co., 828 S.W.2d 700, 701, 706 (Mo. App. 8.D. 1992) (accord and satisfaction

resulted when letter accompanying check stated “[a]cceptance and negotiation of this

check will be considered a full and final release of any claims”).

14

The fetter here did not say the check was “in full settlement” of Weltmer’s claims,

nor that acceptance of the check would be considered a full and final release of any

claims; rather, the letter appeared to be an expression of Signature’s position in the

dispute over the amount owed to Weltmer. Thus, Weltmer’s acceptance of Signature’s

checks did not constitute an accord and satisfaction of his claim.

Without an accord and satisfaction, we turn to the question of whether a genuine

issue of material fact remains regarding the amount of Weltmer’s liquidated equity

interest in Signature. Among Weltmer’s several assertions of disputed fact, he claimed

Zaegel’s affidavit was not sufficient to establish the alleged value of the Signature stock

at $2,000.00, the reported book value of SLCOG’s building, or Signature’s allegation that

Weltmer owed $250,000.00. Viewing the evidence in a light most favorable to Weltmer,

there is a genuine issue of material fact regarding the basis for Signature’s stock valuation

and the reported book value of SLCOG’s building.°

As the party seeking summary judgment, Signature bore the burden of

establishing both a legal right to judgment and the absence of any genuine issue of

material fact. ITT Commercial Fin. Corp., 854 8.W.2d at 378. Rule 74.04 provides that

a motion for summary judgment must be accompanied by a statement of uncontroverted

material facts supported by specific references to the pleadings, discovery, exhibits or

affidavits that demonstrate the lack of a genuine issue as to such facts. Rule 74.04(c)(1).

Affidavits in support of summary judgment must be based on personal knowledge, must

set forth facts that would be admissible as evidence, and must show affirmatively that the

>In light of our decision to reverse summary judgment after finding there was a genuine issue of material

fact as to the amount of Weltmer’s liquidated equity interest in Signature, we decline to also address

Weltmer’s specific allegation that there was a genuine issue of material fact regarding whether he had in

fact repaid part of the $250,060.00 advanced to him by Signature.

15

affiant is competent to testify to the matters stated therein. Rule 74.04(e); Strable v.

Union Pac. R.R. Co., 396 8.W.3d 417, 425 (Mo. App. E.D. 2013). Signature here

supported its statement of uncontroverted material facts with an affidavit from Zaegel

setting forth how he calculated Weltmer’s equity interest; however, the exhibits

accompanying the affidavit did not demonstrate how he reached the claimed stock value

and the claimed book value for SLCOG’s building.

We note that conclusory statements in a supporting affidavit do not necessarily

defeat a motion for summary judgment if the remaining portions of the affidavits and

pleadings provide a basis for judgment as a matter of law. Scott v. Ranch Roy-L, Inc.,

182 S.W.3d 627, 635-36 (Mo. App. E.D. 2005). Nevertheless, here, our review of the

record produced no evidence upon which the trial court could have found the stock was

valued at $2,000.00 and the building’s book value was $558,898.00, without which the

trial court could not have properly determined Signature was entitled to judgment. See

Sakabu_v. Regency Const. Co., Inc., 392 S.W.3d 494, 499-500 (Mo. App. E.D. 2012).

Thus, Signature has not met its burden, and the trial court erred in granting summary

judgment in favor of Signature.

Weltmer’s deposition statements that he did not know whether Zaegel’s

calculations were incorrect was not sufficient to waive the deficiencies in Signature’s

motion for summary judgment. See Jordan v. Peet, 409 S.W.3d 553, 558 (Mo. App.

W.D. 2013) (even if non-movant fails to properly respond to motion for summary

judgment, motion may still be denied if movant’s factual assertions are not sufficient to

entitle movant to judgment as matter of law). Moreover, the record shows that Weltmer

challenged Zaegel’s stock valuation of $2,000.00 and Zaegel’s determination of the

16

$558,898.00 book value of SLCOG’s building, and he requested the basis for both but

did not receive an explanation. We decline to punish Weltmer for not having information

to which he was not given access.

As for Weltmer’s remaining allegations that the trial court erred in considering

Zaegel’s affidavit, we find them unavailing.

Point granted in part.

Point IT

In his third point on appeal, Weltmer argues the trial court erred in granting

Signature’s motion for attorney fees, because (1) summary judgment was improper, (2)

the motion was untimely filed and thus the trial court lacked jurisdiction to enter the

order, and (3) the fees requested were excessive and duplicative. Regardless of whether

the motion for attorney fees was timely filed, because we have reversed the trial court’s

grant of summary judgment, the trial court’s award of attorney fees must also be reversed

at this time.

Point granted,

Point LV

In his fourth and final point on appeal, Weltmer argues the trial court erred in

denying his motion for additional time to conduct discovery. Weltmer’s argument is not

properly before us and we decline review.

Although Weltmer argues and Signature agrees that the trial court denied

Weltmer’s motion for additional time to conduct discovery, neither party cites to the

court’s dismissal in the record, and our review of the record does not show that the trial

court actually ruled on the motion. It is Weltmer’s burden on appeal to provide this

17

Court with a legal file that “contain[s] all of the record, proceedings and evidence

necessary to the determination of all questions to be presented ... to the appellate court

for decision.” Rule 81.12(a). Specifically, the legal file must include “the judgment or

order appealed from.” Rule 81.12(a). Weltmer has not complied with Rule 81.12(a).

Absent the required record, this court cannot review Weltmer’s fourth point on appeal.

Point denied.

Conclusion

The judgment of the trial court is reversed in part and affirmed in part. The trial

court properly granted summary judgment on the issue of whether Weltmer’s termination

breached the Employment agreement. However, there remain genuine issues of material

fact as to whether Signature properly liquidated Weltmer’s equity interests. We remand

for the trial court to determine the proper amount of his liquidated equity interest in

accordance with this opinion. [WA a5

Lisa S. Van Amburg, P.J., concurs. a Gag¢rtner eet

Patricia L. Cohen, J., concurs.

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