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Kraus v. Hy-Vee11/9/2004
ive, MHTC also moved the court to order the family to make more definite and certain the allegations about "confusing striping" at the intersection. Specifically, MHTC asked the court to order the survivors to "identify the striping that they claimed to have been confusing, and state which driver was allegedly confused and how any such confusion contributed to cause the subject accident." The trial court sustained MHTC's motion to dismiss too. The survivors appealed the granting of the defendants' motions.
II. LEGAL ANALYSIS
A. DISMISSAL OF THE CLAIM AGAINST MHTC
1. MHTC's Motion to Dismiss Was Not Transformed into a Motion for Summary Judgment
Although MHTC filed a motion to dismiss appellants' third amended petition, MHTC argues that its motion was converted into a motion for summary judgment when MHTC filed an affidavit in support of its motion.Rule 55.27(a) contemplates such a conversion in certain circumstances.
Those circumstances do not exist here, however. Although MHTC submitted one affidavit outside of the pleadings in support of its motion, appellants did not respond in kind. Appellants limited their response to the pleadings. Likewise, neither party submitted or referred to any evidence beyond the pleadings at the hearing on MHTC's motion to dismiss. It does not appear that the trial court relied upon the affidavit as grounds for dismissing the claim against MHTC. Equally important, the record does not show that appellants had notice that the court intended to treat MHTC's motion to dismiss as a motion for summary judgment. See Turner Eng'g, Inc. v. 149/155 Weldon Parkway, L.L.C., 40 S.W.3d 406, 409 (Mo. App. E.D. 2001) ("A trial court's order will constitute a dismissal, and not a summary judgment, where the record contains no evidence that the court notified the parties that it intended to review the pleadings and documents as a summary judgment motion, nor that the court considered matters outside the pleadings.") (internal quotation marks and citation omitted).
As a result, we conclude that MHTC's motion to dismiss was not converted into a motion for summary judgment. Cf. Weems v. Montgomery, 126 S.W.3d 479, 483 (Mo. App. W.D. 2004) (even if trial court relied upon some evidence outside of the pleadings as grounds for dismissing claim, motions to dismiss were not automatically transformed into motions for summary judgment where party opposing motions did not submit any evidence beyond the pleadings, where party opposing motions objected to the submission of such evidence, and where party opposing motions lacked notice that the circuit court intended to treat motions to dismiss as summary judgment motions).
2. Standard of Review
Accordingly, we review the dismissal of appellants' claim against MHTC under the standard that governs motions to dismiss. We review the grant of a motion to dismiss de novo, examining the pleadings to determine whether they invoke principles of substantive law. Id. at 484. "The pleadings are liberally construed and all alleged facts are accepted as true and construed in a light most favorable to the pleader." Id. (internal quotation marks and citation omitted). "In making our determination, we may not address the merits of the case or consider evidence outside of the pleadings." Id. (internal quotation marks and citation omitted).
We now consider whether appellants have stated a claim for relief against MHTC.
3. Appellants Have Alleged Facts Showing that MHTC Waived its Sovereign Immunity Under the Dangerous Condition Exception
Under the doctrine of sovereign immunity, public entities are immune from suit for their negligent act
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