Fiandaca v. Niehaus

• Decision Date: 18 July 1978
• Docket Number: No. 38967,38967
• Citation: 570 S.W.2d 714
• Parties: Patrick M. FIANDACA III, Administrator, Plaintiff-Appellant, v. Harold E. NIEHAUS et al., Defendants-Respondents. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 714

570 S.W.2d 714

Patrick M. FIANDACA III, Administrator, Plaintiff-Appellant, v. Harold E. NIEHAUS et al., Defendants-Respondents.

No. 38967.

Missouri Court of Appeals, St. Louis District, Division One.

July 18, 1978.

Motion for Rehearing and/or Transfer Denied Sept. 15, 1978.

Application to Transfer Denied Oct. 10, 1978.

Richard L. Ross, David Drury, Clayton, for plaintiff-appellant.

Charles E. Gray, Gray & Ritter, St. Louis, for defendants-respondents.

SMITH, Judge.

Plaintiff-administrator of the estate of Caroline Neihaus appeals the action of the trial court in dismissing his second amended petition with prejudice.

The petition was grounded upon allegations that defendants, through fraud and overreaching, caused decedent, Caroline Neihaus and her husband, to convey land to defendants at far less than its value. The original sale contract, alleged to have been fraudulently induced, was executed in March 1967, ten days prior to the death of Herman Neihaus, Caroline's husband. In April 1967, a warranty deed for the property was executed by Caroline to defendants, which deed is also claimed to have been fraudulently induced. Caroline died on December 13, 1973. Defendants are children or in-laws of Caroline and Herman. It is alleged that in 1968 and 1969 they sold the land for $120,000, four times the purchase price and that defendants failed to disclose and concealed the facts from Caroline until her death. Suit was filed by plaintiff on June 6, 1975.

Defendants concede in their brief that, unless the cause is barred by limitations, the allegations are sufficient to state a cause of action. They also concede that the court could infer from the petition that Caroline was unaware of the alleged fraud at the time of her death. We agree with these concessions, but note in passing that an allegation that defendants concealed the fraud is not the same as an allegation that Caroline Neihaus had not discovered the fraud.

As presented to us, the question is whether the one year limitation on commencement of suit by an administrator in Sec. 516.180 ¹ RSMo 1969 applies only where the decedent is under a disability listed in Sec. 516.170 RSMo 1969 or if it applies in any suit brought by an administrator. Sec. 516.120 RSMo 1969 provides for a five year limitation in actions for fraud. Under subparagraph (5) of that section, the five year period does not commence until discovery of the fraud "at any time within ten years." This has been interpreted to mean that the statute of limitations for undiscovered fraud is fifteen years. Berry v. Dagley, 484 S.W.2d 182 (Mo.1972) (2); Anderson v. Dyer, 456 S.W.2d 808 (Mo.App.1970) (4).

Plaintiff contends the language in Sec. 516.180 "any person so entitled to sue" refers only to those persons listed in the preceding section on disabilities encompassing minority, insanity and imprisonment. Since the petition does not allege that Caroline suffered from any of these disabilities and since the petition does inferably allege that she was unaware of the fraud upon her death, plaintiff contends the five year statute did not commence to run until her death and the suit was timely.

Defendants contend that the one year limitation applies to any action which the administrator brings and since this suit was not commenced until more than a year had elapsed from the date of Caroline's death, it is barred.

Two cases have squarely ruled this question. In both Rosenberger v. Mallerson, 92 Mo.App. 27 (1902) and Holland v. Duckworth, 539 S.W.2d 326 (Mo.App.1976), the courts held that the provisions of Sec. 516.180 or its predecessors applied only to suits where the decedent was subject to one of the disabilities listed in the preceding section. It was noted in Rosenberger that an additional section had been inserted between the disability provision and the one year provision but that that did not alter the intent of the "so entitled to sue" provision of the one year provision. That intervening section has since been removed.

Defendants contend, however, that Rosenberger and Holland were wrongly decided and are contrary to the only Supreme Court decision on the point, Smith v. Newby, 13 Mo. 159 (1850). We disagree. Initially, we note that the language and determination in Smith relied upon by defendants did not squarely confront the precise issue now before us or before the courts in Rosenberger and Holland. In Smith the major question to be resolved was when the statute of limitations began to run. That question was resolved contrary to plaintiff's contention. Under that determination, plaintiff's decedent died several weeks before the expiration of the statute and suit was not brought until more than one year after his death. Only if the one year provision could have been tacked onto the end of the statutory period (not onto the death date of the decedent) would the bar of the statute have been avoided. Since the statute clearly did not provide for such eventuality, it was unnecessary for the court to determine whether the bar dropped five years after the cause of action accrued or one year after decedent's death.

Secondly, the statute under which Smith was decided was changed in 1866 to the present language. ² At the time of Smith, the one year statutory provision was: "If any person entitled to bring any action in this article specified, die before the expiration of the time herein limited for the commencement of such suit, . . . ." The remainder of the statute is identical to the present statute. The disability section which immediately preceded the one year provision (as it presently does) began in the same way, which...