Community Title Co. v. Stewart Title Guar. Co.
| Decision Date | 20 October 1998 |
| Docket Number | No. 80917,80917 |
| Citation | 977 S.W.2d 501 |
| Parties | COMMUNITY TITLE CO., Appellant, v. STEWART TITLE GUARANTY CO., Respondent. |
| Court | Missouri Supreme Court |
Thomas A. Connelly, P.C., Michael J. Angelides, St. Louis, for Appellant.
Thomas Cummings, Jeffrey T. McPherson, Armstrong, Teasdale, Schlafly & Davis, St. Louis, for Respondent.
1
Community Title Company ("appellant") appeals from a summary judgment entered in favor of Stewart Title Guaranty Company ("respondent"). Appellant's original claim against respondent for breach of contract in failing to pay money due was dismissed without prejudice over four years after the cause of action accrued. Appellant re-filed the claim approximately fifteen months later, which was beyond the five-year breach of contract statute of limitations. The trial court held that appellant's claim was time barred by the five-year statute of limitations. However, the ten-year statute of limitations for money due under a writing is applicable. The judgment is reversed, and the cause is remanded.
In 1981 appellant and respondent entered into a title insurance underwriting agreement. The agreement generally provided that appellant would serve as respondent's agent for the issuance of title insurance policies. Under the agreement, appellant pledged to assist respondent in establishing other title insurance agencies ("agents"). In return, respondent pledged to pay appellant a percentage of its receipts from those agents.
On June 30, 1992, respondent filed suit against appellant for breach of contract seeking underwriter's fees allegedly due to it pursuant to the underwriting agreement. Appellant asserted a counterclaim seeking (1) an accounting and (2) payment of money due under the agreement. On May 10, 1995, the trial court dismissed appellant's counterclaim without prejudice. Appellant filed the current petition on August 30, 1996, reasserting its cause of action against respondent. Respondent filed a motion for summary judgment claiming that appellant's cause of action was barred by the five-year statute of limitations. Appellant, along with a reply to respondent's motion, filed its own motion for partial summary judgment, arguing that the ten-year statute of limitations was applicable. The trial court entered an order granting respondent's motion for summary judgment and denying appellant's motion for partial summary judgment. This appeal follows. 2
Appellate review of the propriety of summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is viewed in the light most favorable to the party against whom summary judgment was entered, and that party is afforded all reasonable inferences that may be drawn from the evidence. Id. Summary judgment will be affirmed on appeal if the reviewing court determines that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. General Motors Corp. v. City of Kansas City, 895 S.W.2d 59, 61 (Mo.App.1995), cert. denied, 516 U.S. 909, 116 S.Ct. 277, 133 L.Ed.2d 197 (1995).
Section 516.110(1), RSMo 1994, 3 states that a ten-year statute of limitations applies to "[a]n action upon any writing, whether sealed or unsealed, for the payment of money or property." Section 516.120(1) provides a five-year statute of limitations for "[a]ll actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110...."
Appellant claims that the trial court erred because the agreement that the parties entered into was a promise to pay money and, therefore, the agreement should be governed by the ten-year statute of limitations. Both parties agree that appellant's cause of action accrued, if at all, no later than February 1991. Appellant's original filing in 1992 was timely under either the five or ten-year statute of limitations. When the trial court dismissed appellant's claim, in May 1995, less than a year remained before expiration of the five-year statute of limitations. While the savings statute provides another year for re-filing following the dismissal of a timely filed claim, appellant's re-filing, in August 1996, was outside that window. Thus, if the five-year statute of limitations applies to appellant's claim, it is time barred. But if the ten-year statute of limitations applies, appellant's August 1996 filing is timely.
The agreement states, in pertinent part, "[Respondent] shall ... compensate [appellant] as follows: Pay [appe...
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