Earls v. Farmers Production Credit Ass'n

• Decision Date: 28 December 1988
• Docket Number: No. 15658,15658
• Citation: 763 S.W.2d 694
• Parties: Troy EARLS and Mary Earls, Appellants, v. FARMERS PRODUCTION CREDIT ASSOCIATION and Richard Dean King, Respondents.
• Court: Missouri Court of Appeals

Page 694

763 S.W.2d 694

Troy EARLS and Mary Earls, Appellants, v. FARMERS PRODUCTION CREDIT ASSOCIATION and Richard Dean King Respondents.

No. 15658.

Missouri Court of Appeals,

Southern District,

Division One.

Dec. 28, 1988.

Motion for Rehearing or to Transfer to

Supreme Court Denied Jan. 23, 1989.

Roy W. Brown and Bruce B. Brown, Kearney, for appellants.

Jo Beth Prewitt, West Plains, for respondents.

CROW, Presiding Judge.

This is an appeal from an order dismissing a first amended petition in which Troy Earls and Mary Earls are named as plaintiffs, and Farmers Production Credit Association ("FPCA") and Richard Dean King ("King") are named as defendants. The first amended petition was filed October 26, 1985. Paragraph 1 thereof alleges, among other things: "... Plaintiff, Troy Earls, is now deceased, having died on October __, 1985."

The capacity to sue, be sued, or be a party appellant or respondent, reposes only in persons in being. Farrar v. Moore, 416 S.W.2d 711, 712 (Mo.App.1967). Defendants, so far as we can determine from the record, raised no issue in the trial court regarding the capacity of Troy Earls to maintain this action after his death, and their brief ignores the matter.

The notice of appeal, filed in the trial court March 14, 1988, some 29 months after Troy Earls died, ¹ identifies the appellants as Troy Earls and Mary Earls.

In Schulte v. Crites, 318 S.W.2d 387 (Mo.App.1958), two real estate brokers sued two defendants to recover a commission claimed to be due the brokers for breach of a real estate brokerage contract of employment. After a verdict for the defendants the trial court granted the brokers' motion for new trial; that ruling was upheld on appeal. In the midst of jury selection for the second trial, counsel for the defendants suggested the death of one of the brokers (Cox), which had occurred after the first trial. The lawyer who had been serving as counsel for both brokers thereupon declared, "We desire to dismiss or to withdraw ... Cox's name as plaintiff." The trial proceeded, resulting in a verdict for the defendants. Judgment was accordingly entered and the surviving broker appealed.

The appellate court held that the contract sued on was a joint agreement in favor of both brokers, and that when the suggestion was made as to the death of Cox, the matter could not be prosecuted solely by the surviving broker. Id. at 391. Consequently, said the court, when the defendants suggested the death of Cox the action should not have proceeded until his personal representative could be substituted. Id. at 391. The attempted dismissal of Cox as a party plaintiff after the suggestion of his death was a nullity, for upon the death of a party the authority of counsel who had represented him during his lifetime immediately ceases and terminates. Id. at 391. The judgment was reversed and the cause was remanded.

In Haley v. City of Linn Creek, 583 S.W.2d 590 (Mo.App.1979), Marie Thompson brought an action against a municipality and other defendants seeking cancellation of leases and contracts, an accounting for rents and profits, and additional relief. After trial but prior to entry of judgment Ms. Thompson died. Thereafter the trial court entered judgment in Ms. Thompson's name, finding for her on some issues and against her on others. Ms. Thompson's former attorney subsequently filed a suggestion of her death and a motion for substitution of parties in the trial court. An order was thereafter entered substituting Ms. Thompson's executor as plaintiff. The executor then took an appeal from the judgment of the trial court.

The appellate court said:

"The judgment entered by the trial court has never been amended to reflect the substitution of [the executor] as plaintiff in the cause. It remains a judgment for and against a dead person. While substitution of parties upon the death of a litigant may allow continuation of an action in a proper case (§ 507.100, RSMo 1978), it is apparent that no valid judgment can be rendered until such substitution is accomplished. Cole v. Parker-Washington Co., 276 Mo. 220, 207 S.W. 749 (banc 1918); Overstreet v. Overstreet, 319 S.W.2d 49, 51-52 (Mo.1958). The judgment in this case, entered in the name of the original plaintiff after her death, is absolutely null and void as there is no final and appealable judgment. The appeal is premature and must be dismissed." Haley, 583 S.W.2d at 591.

In Schleifer v. Shuler, 699 S.W.2d 794 (Mo.App.1985), Carol Wehrs was appointed guardian and conservator for Gail Schleifer. In that capacity Wehrs filed a negligence action against one Shuler, seeking damages for Schleifer. Shuler filed a motion to dismiss. Schleifer thereafter died. Shuler filed a suggestion of Schleifer's death. The trial court subsequently granted Shuler's motion to dismiss. No substitution of a party plaintiff had been made. After the dismissal a notice of appeal was filed, stating that "Plaintiff" appealed.

The appellate court, citing Haley, held that a judgment, whether for or against a plaintiff, entered after the plaintiff's death without substitution of parties, is void and there is no final, appealable judgment. Schleifer, 699 S.W.2d at 795. The opinion noted an exception where the dismissal is under Rule 52.13(a)(1) for failure to serve a motion for substitution within 90 days after a suggestion of death is filed. Id. The exception did not apply in Schleifer, as 90 days had not passed when the action was dismissed, and dismissal was not for lack of a motion to substitute. Id. The appeal was dismissed for lack of a final, appealable judgment.

Mindful of the cases just discussed, we note that the original petition in the instant case was filed August 5, 1985, prior to Troy Earls' death. Although a copy of the original petition has not been included in the legal file, the parties agree in their briefs that the plaintiffs named in the original petition were Troy Earls and Mary Earls. Where a statement of fact is asserted in one party's brief and conceded to be true in the adversary's brief, we may consider it as though it appeared in the record. Nastasio v. Cinnamon, 295 S.W.2d 117, 119 (Mo.1956); Hammack v. White, 464 S.W.2d 520, 522 (Mo.App.1971).

The defendants filed a motion to dismiss the original petition; the motion was sustained September 24, 1985. The order of dismissal provided, however, that the dismissal "shall be held in abeyance" for a specified period during which the plaintiffs "shall be permitted to amend their pleading." Troy Earls died during the interval between the aforesaid order and the filing of the amended petition.

The amended petition is in three counts. Count I avers, in substance, that the plaintiffs were record owners of a 200-acre tract on which they operated a farming business which included raising, buying and selling hogs; that in 1973 the plaintiffs "began a debtor-creditor relationship" with FPCA, during which King, an "employee/officer" of FPCA, "actively counseled and advised" the plaintiffs about their financial affairs and farming business; that the plaintiffs "entrusted their financial planning" to FPCA and relied on it to properly advise them; that in July, 1979, King, in the scope and course of his employment, informed the plaintiffs about a plan devised by FPCA to expand the plaintiffs' farming business and construct new facilities for hogs; that King strongly recommended the plan and urged the plaintiffs to implement it, assuring the plaintiffs they had the ability to operate and manage an expanded operation and that expansion was necessary for economic growth; that in reliance on such representations and advice the plaintiffs accepted the plan and FPCA advanced money to finance construction, taking a promissory note secured by a deed of trust on the plaintiffs' farm; that the debt service and additional expenses of maintaining a larger hog herd, coupled with a drop in hog prices, forced the plaintiffs to borrow additional money from FPCA; that in August, 1981, FPCA, through King, informed the plaintiffs that no further money would be advanced and that the plaintiffs would have to liquidate their inventory and apply the proceeds to the outstanding debts; that the plaintiffs believed market prices would rise, but were nonetheless compelled by threats of foreclosure by FPCA to liquidate their inventory and apply the proceeds to the outstanding debt; that the plaintiffs were thereafter unable to continue their farming business and were consequently unable to pay off their remaining debts to FPCA and others; that after the liquidation hog prices rose substantially so that had the plaintiffs been permitted to keep their hogs and sell them at favorable prices they would have been able to service their debt and continue their farming business; that in August, 1983, the plaintiffs filed for bankruptcy; that in March, 1985, FPCA conducted a foreclosure sale of the plaintiffs' farm; that FPCA placed a bid substantially below the outstanding debt; that no other bid was made, and the trustee declared the property sold to FPCA; that FPCA and King, in sundry respects, breached their duty to properly advise the plaintiffs about financial matters so as to ensure that the plaintiffs would maintain financial stability; that the derelictions of FPCA and King included failure to properly evaluate the negative financial consequences of expansion, failure to properly predict and evaluate future hog market conditions, failure to provide financial assistance when it would have kept the plaintiffs in business long enough to overcome their financial problems, and failure to consider options other than liquidation of the plaintiffs' entire inventory; that as a direct result of the aforesaid breach of duty and negligence the plaintiffs were damaged in the sum of $500,000. Count I prayed for judgment in that amount in favor of Troy Earls and Mary Earls against FPCA and King.

Count II incorporated by reference...