Buch v. Holliday, 58197
| Citation | 803 S.W.2d 56 |
| Decision Date | 11 December 1990 |
| Docket Number | No. 58197,58197 |
| Parties | Kenneth J. BUCH, Keith E. Buch, Cathryn Joanne Buch and Michael K. Buch, Individually and as Statutory Trustees of Buch, Inc. (a Missouri corporation), and Lyle D. Miller, Plaintiffs-Appellants, v. J. William HOLLIDAY, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Application to Transfer Denied March 5, 1991.
Clifford Christy Barton, Jefferson City, for plaintiffs-appellants.
Marion F. Wasinger, Hannibal, for defendant-respondent.
Plaintiffs appeal from the entry of summary judgment against them in their suit against defendant William Holliday. The underlying action included other defendants and additional counts and as to them the action remains pending. The order granting the summary judgment was designated as final for purposes of appeal. Rule 74.01(b).
The parties have, unfortunately, dealt with this case, both here and in the trial court, with an absence of precision and an abundance of extraneous and tangential issues. Our review is limited to determining whether on the record before us there exist material facts in dispute precluding the granting of summary judgment. See State ex rel. Kirkpatrick v. Board of Education of St. Louis County, 686 S.W.2d 888 (Mo.App.1983) . The parties have not identified with particularity the portions of the record upon which they rely here or relied in the trial court.
Keith and Cathryn Buch are husband and wife. Kenneth Buch is the son of Keith and Cathryn. Michael Buch, another son, is largely uninvolved. Lyle Miller is a logger. J. William Holliday is a lawyer practicing in Clark county.
In August 1979, Keith and Cathryn purchased from Ralph Jenkins and his since deceased wife, a farm located in Clark County. Kenneth lived on and worked the farm. Financing for the purchase was furnished by the sellers. In April 1985, in order to refinance the loan, the Buchs formed a corporation, Buch, Inc. Holliday was employed by the Buchs to handle the incorporation. He also was assistant secretary and the registered agent.
Following the incorporation Buch, Inc. executed a note and a deed of trust on the farm in favor of the Jenkins. There is nothing of record to indicate that ownership of the farm was transferred from Keith and Cathryn to Buch, Inc. In August 1986, Buch, Inc.'s charter was forfeited for failure to pay the franchise tax. That forfeiture was never rescinded and is still in effect. Notification of the forfeiture was given to Holliday who in turn notified Kenneth Buch.
There is an indication in the record (although the deed does not appear) that in September 1986, Keith and Cathryn executed a quit-claim deed of the farm to Buch, Inc. What the effect of such a deed to a forfeited corporation is we do not address. A payment on the note was due December 1, 1986. Because of a crop failure money for payment of that installment was not then available although crop insurance proceeds were expected to be forthcoming. On December 29, 1986, Kenneth Buch, as president of Buch, Inc. signed a corporate warranty deed transferring the farm from Buch, Inc. to Jenkins and his children. The signing occurred in Holliday's office. Buch contended he was told by Holliday that if he could not immediately make the December 1 payment he had to sign the deed. Holliday was at that point representing the Jenkins family. Buch in an affidavit denied that he acknowledged the deed and stated that the acknowledgement was made by Holliday after he had left the office.
Holliday and Mrs. Bertram, Jenkins' daughter, stated in affidavits that the deed was signed as part of an agreement between the Buchs and the Jenkins family by which the Jenkins would reacquire the land and the Buch's loan would be forgiven including a substantial deficiency caused by the drop in value of the farm. Both indicated that Kenneth Buch acknowledged the deed and the authorization by the corporation for the sale. Kenneth Buch subsequently repudiated the deed. He does not aver in his affidavit that Holliday was aware of the repudiation prior to January 12, 1987.
In September, 1986, Kenneth entered into an agreement with Lyle Miller for Miller to purchase 150 trees on the farm. Pursuant to that agreement Miller felled the trees and skidded them onto another location on the farm for subsequent removal.
On January 12, 1987, Holliday, on behalf of the Jenkins family, filed an unlawful detainer action in the circuit court of Clark County. Kenneth contends that upon service of the summons in that action he was immediately evicted from the premises by the deputy sheriff at the urging of Mrs. Bertram. There is a letter dated April 6, 1987, attached to Holliday's affidavit indicating that as late as that date Kenneth Buch was still utilizing the farm. That letter also indicates that the logs were still located on the farm.
In February 1987, aware of Kenneth Buch's repudiation of the corporate deed, Holliday proceeded to foreclose the deed of trust. The record does not indicate that any attempt was made to prevent the foreclosure or to set it aside. On April 7, 1987, the unlawful detainer suit was voluntarily dismissed by Holliday on behalf of his clients. The April 6 letter indicated that the suit was being dismissed because the property had been sold after the foreclosure and Kenneth Buch had vacated the property except for the removal of some corn.
On April 6, 1989, the present suit was filed. It named as defendants Holliday and the Jenkins family. Three of the six counts were directed at Holliday. Count I was a claim for damages for malicious prosecution against all defendants. It was brought by Kenneth Buch, individually and as a statutory trustee for Buch, Inc., Lyle Miller individually, and Michael, Keith and Cathryn Buch as statutory trustees of Buch, Inc. It premised recovery on the filing of the unlawful detainer suit. It claimed damages consisting of attorney's fees, loss of personal property (timber and logs) and loss of the Buch farm. Of the actual damages claimed by the Buchs of $390,000, $385,000 represented the loss of the farm. Miller claimed damages of $5,000.
Count V sought damages for abuse of process against all defendants premised upon the use of the summons in the unlawful detainer action to immediately seize the Buch farm and crops and logs thereon. It was brought by the same persons in the same capacities as Count I. It alleged the same damages as Count I and additionally sought punitive damages.
Count VI sought recovery of damages solely against Holliday on a theory of intentional breach of fiduciary duty. It was brought by the Buch family members individually and as statutory trustees of Buch, Inc. It was premised on Holliday's conduct in representing the Jenkins family while also serving as attorney for the Buchs and as officer of Buch, Inc. It sought actual damages of one million dollars for loss of the Buch farm, loss of personal property thereon, loss of future income from the farm, and attorney's fees. It also sought punitive damages.
All three counts against Holliday are premised essentially on the unlawful detainer action. That action in turn was based on the corporate deed from Buch, Inc. to the Jenkins family.
Holliday contends the malicious prosecution action was brought outside the time limits of the statute of limitations. Sec. 516.140, R.S.Mo.1986, imposes a two year limitation on malicious prosecution actions. The cause of action arises on the date the underlying proceeding is terminated. Euge v. Lemay Bank and Trust Co., 386 S.W.2d 398 (Mo.1965) [4-6]. An action is commenced in this state upon the filing of a petition with the court. Rule 53.01. The petition in this case was filed within two years after dismissal of the underlying suit. Holliday attempts to invoke authority which holds that the party filing suit must proceed with due diligence to effectuate service. Slack v. Englert, 617...
To continue reading
Request your trial
-
Hendry v. Pelland
... ... Compare Buch v. Holliday, 803 S.W.2d 56, 60 (Mo.Ct.App.1990) (ruling that clients are ... required to show ... ...
-
Holley v. Caulfield
... ... facts which he could have ascertained by due diligence prior to instituting the prosecution." Buch v. Holliday, 803 S.W.2d 56, 60 (Mo.App. E.D. 1990), quoting Hoene v. Associated Dry Goods Corp., ... ...