Armistead v. A.L.W. Group, No. ED 84482.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtGlenn A. Norton
Citation155 S.W.3d 814
PartiesRobert G. ARMISTEAD, Jr., Appellant, v. A.L.W. GROUP, Mark A. Witt, Tina M. Witt and Boogies, Inc., Respondents.
Docket NumberNo. ED 84482.
Decision Date01 February 2005
155 S.W.3d 814
Robert G. ARMISTEAD, Jr., Appellant,
v.
A.L.W. GROUP, Mark A. Witt, Tina M. Witt and Boogies, Inc., Respondents.
No. ED 84482.
Missouri Court of Appeals, Eastern District, Division Five.
February 1, 2005.

[155 S.W.3d 815]

Timothy J. Melenbrink, Union, MO, for respondents.

Cynthia S. Holmes, Clayton, MO, for appellant.

OPINION

GLENN A. NORTON, Presiding Judge.


Robert Armistead appeals the judgment dismissing his claims against Tina Witt and Boogies, Inc. We reverse in part and affirm in part.

I. BACKGROUND

In 1990, Armistead entered a partnership agreement with Mark Witt and his brothers. Armistead withdrew from the partnership in 1991. The remaining partners notified Armistead of their intent to exercise their option under the agreement to purchase the withdrawing partner's interest. According to the agreement, the buy-out was to occur by January 1992, but it never did. The agreement mandated that failure to purchase the withdrawing partner's interest would result in the dissolution and liquidation of the partnership. Thereafter, the partnership's activities were to be limited to winding-up its affairs; that is, selling the partnership's assets and distributing the proceeds to the partners.

155 S.W.3d 816

The partners did not, however, proceed with proper dissolution. In 1999, Mark Witt and his wife, Tina Witt, acquired the other Witt brothers' interests in the partnership. In 2000, Armistead filed a petition against the Witt brothers — but not Tina Witt — alleging that the partners had breached the agreement by failing to buy him out or dissolve the partnership. That petition was dismissed on grounds that it was barred by the five-year statute of limitations. On appeal, this Court reversed and remanded, holding that the ten-year statute of limitations applied. Armistead v. A.L.W. Group, 60 S.W.3d 25, 26 (Mo.App. E.D.2001). On remand, Armistead voluntarily dismissed his petition. In 2002, Mark and Tina Witt wound-up the partnership and sold the business to Boogies, Inc.

In 2003, Armistead filed the instant petition. He asserts a claim for breach of contract stemming from the failed buy-out, seeking the purchase price due to him under the agreement. He also asserts claims against Mark and Tina Witt for breach of the partnership agreement and of their fiduciary duties resulting from their failure to pay him his share of the winding-up proceeds. The petition also includes a count for interpleader against Boogies, in which Armistead seeks an order to pay into the court those sums due under the promissory note Boogies tendered for the sale of the partnership's business. Tina Witt moved to dismiss the claims against her on the ground that they were barred by the ten-year statute of limitations and failed to state any claim. Boogies moved to dismiss the interpleader count against it for failure to state a claim. The court granted both motions, and Armistead appeals.

II. DISCUSSION

A motion to dismiss for failure to state a claim is solely a test of the adequacy of the plaintiff's petition; therefore, on appeal, we accept as true all well-pled allegations in the petition and liberally grant the plaintiff all reasonable inferences drawn therefrom. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993); see also Freeman v. Leader National Insurance Co., 58 S.W.3d 590, 596 (Mo.App. E.D.2001). We also consider exhibits attached to the petition — here, the partnership agreement — as part of the allegations. Suburban Business Products, Inc. v. T.E. Schmitt Co., 796 S.W.2d 77, 78 (Mo.App. E.D.1990); Rule 55.12 (2003).1 This Court does not attempt to weigh whether the alleged facts are credible or persuasive. Nazeri, 860 S.W.2d at 306. "Instead, the petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case." Id.

A. Breach of Contract and Fiduciary Duty

Tina Witt contends that Armistead's only cause of action relating to this partnership agreement accrued when the buy-out failed in 1992, and that no new or continuing cause of action arose against Tina Witt when she became a partner in 1999. Thus, she contends, the claims filed against her in 2003 are barred by the ten-year statute of limitations. "If it clearly...

To continue reading

Request your trial
2 practice notes
  • Hendricks v. CURATORS OF UNIV. OF MISSOURI, No. WD 70398.
    • United States
    • Court of Appeal of Missouri (US)
    • April 27, 2010
    ...to state a claim, "we also consider exhibits attached to the petition. . . as part of the allegations." Armistead v. A.L.W. Group, 155 S.W.3d 814, 816 (Mo.App. E.D.2005). The fact that the trial court considered the terms of the Curators' self-insurance plan did not convert their motion int......
  • Hallquist v. Midden, No. ED 86836.
    • United States
    • Court of Appeal of Missouri (US)
    • May 23, 2006
    ...79 S.W.3d 907, 909 (Mo. banc 2002); Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993); Armistead v. A.L.W. Group, 155 S.W.3d 814, 816 (Mo. App. E.D.2005). When reviewing a motion to dismiss, we assume that all of plaintiff's allegations are true and liberally grant plai......
5 cases
  • Commonwealth Land Title Ins. Co. v. Miceli, No. ED 101473
    • United States
    • Court of Appeal of Missouri (US)
    • April 28, 2015
    ...alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.’ " Armistead v. A.L.W. Grp., 155 S.W.3d 814, 816 (Mo. App. E.D. 2005) (quoting Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993) ).2. Analysis In its first point on app......
  • Hendricks v. CURATORS OF UNIV. OF MISSOURI, No. WD 70398.
    • United States
    • Court of Appeal of Missouri (US)
    • April 27, 2010
    ...to state a claim, "we also consider exhibits attached to the petition. . . as part of the allegations." Armistead v. A.L.W. Group, 155 S.W.3d 814, 816 (Mo.App. E.D.2005). The fact that the trial court considered the terms of the Curators' self-insurance plan did not convert their motion int......
  • Harris v. Presson, No. ED 100751.
    • United States
    • Court of Appeal of Missouri (US)
    • October 7, 2014
    ...petition.” Id. “This Court does not attempt to weigh whether the alleged facts are credible or persuasive.” Armistead v. A.L. W. Grp., 155 S.W.3d 814, 816 (Mo.App.E.D.2005). Rather, “we accept all properly pleaded facts as true, giving the pleadings their broadest intendment, and we constru......
  • Smith v. Humane Soc'y of the U.S. & Missourians for the Prot. of Dogs, No. SD33431
    • United States
    • Missouri Court of Appeals
    • June 29, 2015
    ...to state a claim, "[w]e also consider exhibits attached to the petition . . . as part of the allegations." Armistead v. A.L.W. Group, 155 S.W.3d 814, 816 (Mo.App. E.D. 2005). The fact that the trial court considered the terms of the Curators' self-insurance plan did not convert their motion......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT