Armistead v. a.L.W. Group, ED79186

• Decision Date: 09 October 2001
• Docket Number: ED79186
• Citation: 60 S.W.3d 25
• Parties: Robert Armistead, Jr., Appellant, v. A.L.W. Group, A Limited Partnership, Mark A. Witt, Steven L. Witt and Larry D. Witt, Respondent. ED79186 Missouri Court of Appeals Eastern District
• Court: Missouri Court of Appeals

Robert Armistead, Jr., Appellant v A.L.W. Group, A Limited Partnership, Mark A. Witt, Steven L. Witt and Larry D. Witt, Respondent

ED79186

Missouri Court of Appeals Eastern District

10/09/2001

Appeal From: Circuit Court of Franklin County, Hon. Jeff W. Schaeperkoetter

Counsel for Appellant: Cynthia S. Holmes

Counsel for Respondent: Timothy J. Melenbrink

Opinion Summary:

Robert G. Armistead, Jr., appeals the court's judgment dismissing his petition for dissolution of partnership, accounting, breach of contract and punitive damages against the A.L.W. Group and the individual members of the partnership (collectively, "A.L.W."). The court determined that the petition was time-barred because the five-year statute of limitations set forth section 516.120.1 RSMo 2000 applied instead of the ten-year statute set forth in section 516.110.1.

Division Three holds: (1) Armistead's claims for breach of contract and punitive damages are governed by the ten-year statute of limitations set forth in section 516.110.1; (2) Armistead's claims for dissolution of the partnership and an accounting are governed by section 516.110.1; (3) Armistead's third point on appeal is moot given the disposition of Points I and II.

Gaertner, Sr., J., and Ahrens. J., concur.

Richard B. Teitelman, Judge

Robert G. Armistead, Jr., ("Armistead") appeals from a judgment entered by the Circuit Court of Franklin County dismissing his petition for dissolution of partnership, accounting, breach of contract and punitive damages against the A.L.W. Group and the individual members of the partnership (collectively, "A.L.W."). The trial court determined that the petition was time-barred because the five-year statute of limitations set forth in Section 516.120.1 RSMo (2000)¹ applied instead of the ten-year statute set forth in Section 516.110.1. We reverse and remand. Factual and Procedural Background

On June 3, 1990, Armistead and several others entered into a limited partnership agreement (the "Agreement") to operate a restaurant and bar in Franklin County, Missouri. Concerned that he was being improperly excluded from the business, Armistead notified A.L.W. of his withdrawal from the partnership on September 20, 1991.

The Agreement provided that upon the withdrawal of a partner, the partnership had two options. First, the remaining partners could elect to purchase the interest of the withdrawing partner. The Agreement provided a means of calculating the value of the withdrawing partner's interest. Second, the remaining partners could elect to dissolve the partnership. Armistead alleges that although his former partners elected to purchase his interest, they failed to do so. Armistead further alleges that A.L.W. again breached the Agreement by failing to dissolve the partnership after declining to purchase his partnership interest. Accordingly, on October 6, 2000, some nine years after his withdrawal from the partnership, Armistead filed a three-count petition asking for dissolution of the partnership, appointment of a receiver and an accounting, and punitive damages. On December 14, 2000, Armistead filed an amended petition which added a count for breach of contract for the payment of money due for the purchase of his partnership interest. In the amended petition, the claim for punitive damages related to the allegations in Counts I through III.

A.L.W. filed a motion to dismiss alleging that Armistead's petition was time-barred under the five-year statute of limitations set forth Section 516.120.1.² On January 15, 2001, the trial court sustained A.L.W.'s motion to dismiss. Subsequently, the court also denied Armistead's motion to reconsider and designated its dismissal order as a final judgment. This appeal followed. Standard of Review

When reviewing the dismissal of a cause of action, we examine the pleadings, treating all alleged facts as true and construing the allegations in favor of the pleader. City of Chesterfield v. Deshetler Homes, 938 S.W.2d 671, 673 (Mo.App. E.D. 1997). If it clearly appears on the face of the petition that the cause of action is barred by the applicable statute of limitations, the motion to dismiss is properly sustained. City of Ellisville v. Lohman, 972 S.W.2d 527, 530 (Mo.App. E.D.1998).Discussion

Point One

In his first point on appeal, Armistead argues that the trial court erred in dismissing Count III (breach of contract) and Count IV (punitive damages) of his petition by invoking the five-year statute of limitations in Section 516.120.1. Armistead argues instead that the ten-year statute of limitations set forth in Section 516.110.1 applies. We agree.

The trial court premised its holding on the theory that Section 516.110.1 is inapplicable because the Agreement "does not contain a promise to pay money which is an acknowledgment of a then present indebtedness." This is an incorrect statement of the law governing the applicability of Section 516.110.1. Section 516.110.1 provides that "an action upon any writing, whether sealed or unsealed, for the payment of money or property" shall be brought within ten years. The plain language of the statute imposes no requirement of "then present indebtedness." Therefore, as...