Ghertner v. Lipton

• Court: Missouri Court of Appeals
• Writing for the Court: McMILLIAN; CLEMENS, P. J., and SMITH
• Citation: Ghertner v. Lipton, 563 S.W.2d 531 (Mo. App. 1978)
• Decision Date: 28 February 1978
• Docket Number: No. 39162,39162
• Parties: Elmer GHERTNER, Appellant, v. Donn H. LIPTON, Irving Lipton, Marilyn G. Lipton, and Lipton Realty Company, Grado, Inc., Oreon E. and R. G. Scott, Inc., Respondents. . Louis District, Division One

Page 531

563 S.W.2d 531

Elmer GHERTNER, Appellant, v. Donn H. LIPTON, Irving Lipton, Marilyn G. Lipton, and Lipton Realty Company, Grado, Inc., Oreon E. and R. G Scott, Inc., Respondents.

No. 39162.

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

Feb. 28, 1978.

Norbert M. Reker, St. Louis, for appellant.

Susman, Stern, Heifetz, Lurie, Sheehan, Popkin & Chervitz, Richard J. Sheehan, Pat L. Simons, St. Louis, for respondents.

McMILLIAN, Judge.

Appellant Elmer Ghertner appeals from a judgment entered in the circuit court of the City of St. Louis granting respondents' motion to dismiss for failure to state a claim upon which relief could be granted and because the action was barred by the statute of limitations. For reversal appellant argues that the trial court erred in granting the motion to dismiss because (1) the petition set forth sufficient facts to invoke substantive principles of law which may entitle him to relief and (2) the statute of limitations is inapplicable because the partnership is still in existence. We do not agree and, accordingly, affirm the judgment.

The basic facts, according to the petition, are that sometime prior to November 3, 1969, appellant discovered that the Kingsbury Apartments were available for purchase. Appellant believed this property constituted a profitable investment opportunity but was unable to arrange adequate financing on his own. Appellant then contacted respondent Donn Lipton, who had contacts with a church organization that could finance the purchase of the property, and proposed that they combine their various skills and resources to take advantage of this investment opportunity. Lipton agreed. Appellant obtained two option contracts but purchase of the property was never completed due to lack of adequate financial arrangements. The second option contract expired June 15, 1970.

Sometime after June 15, 1970, respondent Donn Lipton entered into negotiations with the managing agents of the apartments on his own behalf. The apartments were subsequently purchased by a Lipton corporation, respondent Grado, Inc., on or about October 2, 1970, and leased to the St. Louis Housing Authority for a ten-year term, at $46,200.00 per year. The negotiation, purchase and lease were not disclosed to appellant. Appellant filed this action for damages on March 1, 1976, more than five years after the attempted purchase in June, 1970. Respondents' motion to dismiss was granted on March 23, 1977, and the dismissal is the basis of this appeal.

Appellant first argues that the trial court should not have granted respondents' motion to dismiss because his petition alleges facts which invoke principles of substantive law which may entitle it to relief, e. g., Brolinson v. Brolinson, 564 S.W.2d 911 (Mo.App.1978); Watson v. Franklin Finance, 540 S.W.2d 186, 188 (Mo.App.1976). Appellant contends that the petition sets forth a series of transactions between himself and respondent Donn Lipton which indicate the formation of a partnership or a joint venture to accomplish a particular real estate transaction. Appellant basically alleges that respondent Donn Lipton has committed a breach of fiduciary duty by using partnership information for his own benefit and excluding appellant from sharing any of the profits thus realized, § 358.210 RSMo 1969; e. g., DeFabio v. Mackey, 493 S.W.2d 355, 359 (Mo.App.1973).

Although under modern pleading principles a petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts which would entitle him to relief, e. g., Laclede Gas Co. v. Hampton Speedway Co. 520 S.W.2d 625, 630 (Mo.App.1975), we do not reach the question of the appropriateness of the trial court's dismissal of the petition for failure to state a claim in this case because the petition is barred by the applicable statute of limitations, § 516.120(1) RSMo 1969. See Schnabel v. Taft Broadcasting Co., 525 S.W.2d 819, 821 (Mo.App.1975); Household Finance Co. v. Avery, 476 S.W.2d 165, 168 (Mo...