DAN JOINT VENTURE, III v. Clark

• Decision Date: 01 May 2007
• Docket Number: No. WD 66513.,WD 66513.
• Citation: 218 S.W.3d 455
• Parties: D.A.N. JOINT VENTURE, III, Appellant, v. Theresa CLARK, Respondent.
• Court: Missouri Court of Appeals

218 S.W.3d 455

D.A.N. JOINT VENTURE, III, Appellant,
v.
Theresa CLARK, Respondent.

No. WD 66513.

Missouri Court of Appeals, Western District.

December 26, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 30, 2007.

Application for Transfer Denied May 1, 2007.

218 S.W.3d 456

COPYRIGHT MATERIAL OMITTED

218 S.W.3d 457

Thomas James Fritzlen, Jr., Kansas City, for appellant.

Dale K. Irwin, Kansas City, for respondent.

RONALD R. HOLLIGER, Judge.

Summary

D.A.N. Joint Ventures III, L.P. ("DAN") appeals both the dismissal of its petition to collect on a retail installment contract and the trial court's denial of its motion for summary judgment in the same cause. Both of these actions by the trial court were grounded upon a determination that the statute of limitations barred DAN's cause of action. Because the trial court appropriately applied the four-year statute of limitations governing actions based on the breach of a contract for the sale of goods, DAN's claim was time barred and we need not address the denial of DAN's motion for summary judgment.¹

Factual and Procedural Background

In August of 1997, Theresa Clark ("Clark") purchased a used car. In connection with that purchase, Clark executed a retail installment contract and security agreement, which was then assigned to a finance company. Nine months later, Clark was declared in default on that installment contract by the finance company, which then repossessed and sold the car. By a series of subsequent assignments, the installment contract eventually came into the possession of DAN. In November of 2004, DAN filed suit to collect the balance due on that contract, along with interest and late charges.

Clark's answer to the petition asserted that the claim was barred by the four-year statute of limitations set forth in RSMo. Section 400.2-725. DAN then filed a motion for summary judgment, asserting both that the ten-year statute of limitations set forth in section 516.110 should govern the action and that Clark's answer admitted all of the facts necessary to establish her liability on the contract. Clark countered with a motion to dismiss, based upon the four-year statute of limitations. The trial court granted Clark's motion and overruled DAN's motion for summary judgment. This appeal follows.

Standard of Review

This court reviews de novo the grant of a motion to dismiss. Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo. App. W.D.2004). Similarly, which statute of limitations applies to a given cause of action is a question of law, reviewed de novo. Chouteau Auto Mart, Inc. v. First

218 S.W.3d 458

Bank of Mo., 148 S.W.3d 17, 21 (Mo.App. W.D.2004). In reviewing the dismissal of a claim, this court applies the same standard employed by the trial court. Cf. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) (discussing appellate review of a granted motion for summary judgment). "Where the pleadings fail to state a cause of action under the law or fail to state facts entitling the party to relief, the trial court may dismiss the lawsuit." Id. Thus, where a statute of limitations is asserted as a defense, the suit may only be dismissed by a motion to dismiss where the petition establishes on its face that the action is time-barred. K.G. v. R.T.R., 918 S.W.2d 795, 797 (Mo. banc 1996). In reviewing the dismissal, this court must give the petition its broadest intendment, and allegations therein must be construed favorably to the plaintiff. Heintz v. Swimmer, 922 S.W.2d 772, 775-76 (Mo.App. E.D.1996)

Discussion

The dispositive issue presented by this appeal is whether the statute of limitations bars DAN's suit. DAN claims that the right it asserts is grounded in Missouri's adoption of Article 9 of the Uniform Commercial Code ("UCC"), which governs secured transactions and security interests. See Missouri Revised Statutes, sections 400.9-101 et seq. As adopted, Article 9 allows for a secured party to repossess and sell collateral upon the default of a debtor. Assuming this repossession and disposition of the collateral complies with the requirements of the Code, the secured party shall then, "account to and pay a debtor for any surplus, and the obligor is liable for any deficiency." Section 400.9-608(a)(4).

Under DAN's theory of the present case, this right to a deficiency derives from its security interest in the car that was repossessed from Clark and, therefore, should be governed by the...