Follmer's Market, Inc. v. Comprehensive Accounting Service Co., 41432

• Decision Date: 13 January 1981
• Docket Number: No. 41432,41433.,41432
• Citation: 608 S.W.2d 457
• Court: Missouri Court of Appeals
• Parties: FOLLMER'S MARKET, INC., Joseph C. Follmer, III and Joseph Follmer, Jrs., Plaintiffs-Appellants, v. COMPREHENSIVE ACCOUNTING SERVICE COMPANY, William R. Foreman, Inez Mae Foreman and Manchester Bank of St. Louis, Defendants-Respondents. FOLLMER'S SUPER MARKET, INC., Joseph C. Follmer, III and Joseph Follmer, Jr., Plaintiffs-Appellants, v. COMPREHENSIVE ACCOUNTING SERVICE COMPANY, William R. Foreman, Inez Mae Foreman, Tower Grove Bank & Trust, and Bernard Wagner, Defendants-Respondents.

608 S.W.2d 457

FOLLMER'S MARKET, INC., Joseph C. Follmer, III and Joseph Follmer, Jrs., Plaintiffs-Appellants, v. COMPREHENSIVE ACCOUNTING SERVICE COMPANY, William R. Foreman, Inez Mae Foreman and Manchester Bank of St. Louis, Defendants-Respondents.

FOLLMER'S SUPER MARKET, INC., Joseph C. Follmer, III and Joseph Follmer, Jr., Plaintiffs-Appellants, v. COMPREHENSIVE ACCOUNTING SERVICE COMPANY, William R. Foreman, Inez Mae Foreman, Tower Grove Bank & Trust, and Bernard Wagner, Defendants-Respondents.

Nos. 41432, 41433.

Missouri Court of Appeals, Eastern District, Division Four.

September 23, 1980.

Motion for Rehearing and/or Transfer Denied November 14, 1980.

Application to Transfer Denied January 13, 1981.

Eugene E. Eimer, St. Louis, for plaintiffs-appellants.

Justin C. Cordonnier, William M. Nicholls, E. Michael Murphy, St. Louis, for defendants-respondents.

David Wells, Mary Bonacorsi, Thompson & Mitchell, for Manchester Bank.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 14, 1980.

SMITH, Presiding Judge.

Plaintiffs appeal from the action of the trial court in dismissing their petitions in two related lawsuits on the basis they were barred by limitations. The suits are based upon certain alleged defalcations by William Foreman, hired by the corporate defendant to perform accounting and financial services. Foreman was alleged to be an employee of Inez Foreman and Comprehensive Accounting Service Company and a partner of Bernard Wagner. Specifically, it is alleged that Foreman induced Follmer's Supermarket to deposit money in tax accounts at Tower Grove Bank and Manchester Bank. Then through a series of forged checks, Foreman paid a lesser amount of tax to the State of Missouri than was reflected in the returns he showed to the company officers (but did not send to the state) and also through forged checks paid to himself the difference between that lesser amount and the amount shown on the returns. The amount of money received by Foreman as a result of the forgeries through the Tower Grove account was $62,800; through Manchester Bank it was $22,200.

Plaintiffs' petitions alleged that they became aware of the forgeries by February, 1972. Suit was brought in April, 1978. They sought recovery against all of the defendants on a variety of theories and for various amounts of money. Among the theories advanced was fraud. The trial court dismissed the plaintiffs' first amended petitions as to all defendants and gave leave to file amended petitions as to all defendants except the banks. After the second amended petitions were filed, the court dismissed those petitions without leave to amend. The plaintiffs have appealed in both cases and we consolidated the appeals for argument and will deal with both in this opinion.

Where a petition shows on its face that it is barred by limitations, a motion to dismiss will lie. Schnabel v. Taft Broadcasting Company, 525 S.W.2d 819, 821 (Mo. App.1975) 3. The face of the petitions here reflect that plaintiffs became aware of Foreman's forgeries by February, 1972, and did not file suit until April, 1978-more than six years later. There is no contention in this court that any statute of limitations other than Sec. 516.120 R.S.Mo.1978 (five years) is applicable, nor do we find any basis for invoking a different limitations period. There is some question whether the provisions of Sec. 516.100 R.S.Mo.1978¹ are to be engrafted onto the provisions of Sec. 516.120(5) dealing with fraud. It is unnecessary for us to reach that question. Certainly, the facts constituting the fraud were discovered by February, 1972. Under § 516.120, plaintiffs had five years thereafter to bring suit. They clearly did not meet that deadline. If in addition § 516.100 applies to a fraud action (which we do not suggest), the discussion which we make hereafter would apply equally to the fraud claims as well as the other theories of recovery.

Plaintiffs argue that under § 516.100 the cause of action did not accrue until 1976 because it was not until then that the last item of damage became "capable of ascertainment." This contention is based upon the fact that it was not until 1976 that Follmers' Super Markets arrived at a settlement with the State of Missouri of the amount of taxes due and the penalties and interest to be collected.

The test to be applied is set forth in Rippe v. Sutter, 292 S.W.2d 86 (Mo.1956) (quoting from Allison v. Missouri Power & Light Co., 59 S.W.2d 771 (Mo.App.1933)) as follows:

"The aforequoted statute does not change the general rule that `when an injury is complete as a legal injury at the time of the act, the period of limitation will at once commence; and if the action is of a nature to be maintained without proof of actual damage, the period of limitation will begin to run from the time the act is done without regard to any actual damage, * * * but * * * when the act which gives the cause of action is not legally injurious until certain consequences occur, then the period of limitation will take date from the consequential injury. * * * the injurious consequences or resulting damages which bring about the accrual of the cause of action are the indispensable elements of the injury itself, and not mere aggravating circumstances enhancing a legal injury already inflicted, * * * and * * * the resulting damage is sustained and is capable of ascertainment within the contemplation of the statute whenever it is such that it can be discovered or made known.'" Rippe v. Sutter, supra, l. c. 90. See also Chemical Workers Basic Union v. Arnold Sav. Bank, 411 S.W.2d 159 (Mo. banc 1966); Lewis v. Thompson, 231 Mo.App. 321, 96 S.W.2d 938 (1936); Thorne v. Johnson, 483

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