Burr v. National Life & Acc. Ins. Co., WD

• Decision Date: 17 January 1984
• Docket Number: No. WD,WD
• Citation: 667 S.W.2d 5
• Court: Missouri Court of Appeals
• Parties: Florastine BURR, Appellant, v. NATIONAL LIFE & ACCIDENT INSURANCE COMPANY and Billy Ray Carliss, Respondents. 34523.

Page 5

667 S.W.2d 5

Florastine BURR, Appellant, v. NATIONAL LIFE & ACCIDENT INSURANCE COMPANY and Billy Ray Carliss, Respondents.

No. WD 34523.

Missouri Court of Appeals Western District.

Jan. 17, 1984.

Motion For Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Feb. 28, 1984.

Application to Transfer Denied

April 16, 1984.

Richard W. Niederhauser, Byron Neal Fox, P.C., Kansas City, for appellant.

Robert M. Beachy, Kansas City, for respondents.

Before SOMERVILLE, P.J., and NUGENT and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

Plaintiff appeals the dismissal of her petition against defendants National Life & Accident Insurance Company ("National") and Billy Ray Carliss on the grounds that 1) the five-year statute of limitations under Section 516.120 RSMo.1978 ¹ bars plaintiff's petition, 2) the petition fails to state a claim upon which relief may be granted, and 3) the doctrines of collateral estoppel and res judicata bar the pursuit of plaintiff's petition.

The procedural history of plaintiff's first attempt at a lawsuit against one of the defendants in the present action, David Harding, ² provides background to this appeal. Plaintiff originally filed a pro se petition against Harding, attorney at law, on July 10, 1981. Although captioned "Petition for Malpractice," the petition appears an attempt to state allegations of fraud related to Harding's representation of plaintiff in a bankruptcy claim against one Melvin G. Henderson. Harding moved to dismiss the petition on August 18 for failure to state a claim or in the alternative to strike the petition as replete with "immaterial, impertinent, and scandalous statements." Plaintiff was granted until September 28, 1981 to submit suggestions in opposition to Harding's motion. In the meantime plaintiff obtained counsel, Curtis Crawford, who entered his appearance on October 26 and moved for additional time to respond to Harding's motion. The court refused to extend the time and dismissed the petition with prejudice on November 13, 1981. An untimely notice of appeal thwarted any appeal.

On October 12, 1982 plaintiff filed a new petition in two counts, this time through an attorney, again naming Harding as a defendant and adding as co-defendants National and Carliss. Harding and Carliss were sued individually and as agents of National. The petition alleges that on or about July 29, 1976, Harding and Carliss "falsely and fraudulently and with the intent to induce plaintiff to provide information concerning one Melvin G. Henderson and further, to allow defendant David M. Harding to represent her interest in her cause of action against said Melvin G. Henderson represented to plaintiff as follows ...:" Plaintiff was to cooperate and help defendants "secure and compile pertinent data" regarding Henderson to help plaintiff pursue a bankruptcy claim against Henderson. The information provided by plaintiff, the petition alleges, was used by Harding to help National secure its own claim against Henderson rather than to help plaintiff. She further alleged Harding's representation of plaintiff in her bankruptcy claim against Henderson was in conflict with his representation of National.

Harding's motion to dismiss the petition was sustained on November 19. It was based upon the res judicata effect of the previous dismissal of plaintiff's petition, the statute of limitations, and failure to state a claim. National and Carliss filed separate motions for summary judgment or in the alternative asked for dismissal for failure to state a claim and incorporated all of the grounds set forth in Harding's motion to dismiss in their own motions. On December 12, 1982, appellant, apparently pro se, moved for an extension of time to respond to the motion of National and Carliss. The extension was denied, and the motion to dismiss granted upon all of the grounds requested. This appeal resulted.

Affirmance of the trial court may rest upon any one of the three grounds upon which dismissal of plaintiff's petition was premised. For this reason this opinion need only address in detail the first of three grounds, the statute of limitations issue.

A motion to dismiss may properly raise the issue of the statute of limitations where the petition shows upon its face that the action is barred. Follmer's Market v. Comprehensive Accounting Service Company, 608 S.W.2d 457, 458 (Mo.App.1980). Here more than five years lapsed between the events arising out of plaintiff's lawsuit ("on or about July 29, 1976") and the filing of plaintiff's lawsuit (October 12, 1982).

A cause of action for fraud accrues at the time the defrauded party discovered or in the exercise of due diligence, should have discovered the fraud, Siler v. Kessinger, 149 S.W.2d 890, 893 (Mo.App.1941), although by statute discovery must fall within ten years of the alleged fraud, Section 516.120(5). The plaintiff maintains the duty to make inquiry to discover the facts surrounding fraud. Where the means of discovery exist, the plaintiff will be deemed to have known of the fraud so as to begin the running of the statute. Briece v. Bosso, 158 S.W.2d 463, 467 (Mo.App.1942). The party seeking to avoid the bar of the statute in an action for fraud must set forth in her pleadings "... facts which would toll the statute, showing due diligence on their part in attempting to discover the fraud; or that it was not within their power; or that the other parties had by artifice or trick concealed the...