Gill v. Farm Bureau Life Ins. Co. of Missouri
| Decision Date | 25 June 1993 |
| Docket Number | No. 18342,18342 |
| Citation | 856 S.W.2d 96 |
| Court | Missouri Court of Appeals |
| Parties | Samuel L. GILL, Plaintiff-Appellant, v. FARM BUREAU LIFE INSURANCE COMPANY OF MISSOURI, Farm Bureau Town & Country Insurance Company of Missouri, Missouri Farm Bureau Finance Company, Missouri Farm Bureau Federation, and Lowell Mohler, Defendants-Respondents. |
John L. Oliver, Jr., Oliver, Oliver & Waltz, P.C., Cape Girardeau, for plaintiff-appellant.
Ronald R. McMillin, Kent L. Brown, Carson & Coil, P.C., Jefferson City, for defendants-respondents.
Samuel L. Gill (plaintiff) appeals the trial court's dismissal of his lawsuit against Farm Bureau Life Insurance Company of Missouri, Farm Bureau Town & Country Insurance Company of Missouri, Missouri Farm Bureau Finance Company, Missouri Farm Bureau Federation 1 and Lowell Mohler (referred to, collectively, as defendants). The trial court dismissed both counts of plaintiff's petition for failure to state causes of action. This court affirms.
DEFENDANTS' MOTION TO DISMISS APPEAL AND AFFIRM JUDGMENT OR,
Defendants, by separate motion that this court ordered taken with the case, contend that plaintiff's brief fails to comply with Rule 84.04(d) and request this court to dismiss the appeal or, alternatively, to strike plaintiff's/appellant's brief. 2 Defendants accurately point out that the two points plaintiff presents on appeal do not identify the specific actions or rulings by the trial court for which plaintiff seeks appellate review. Defendants cite Thummel v. King, 570 S.W.2d 679, 684-87 (Mo. banc 1978). 3
Notwithstanding deficiencies in points relied on in an appellant's brief, appellate courts may look to the argument portion of the brief to determine whether a trial court committed plain error affecting substantial rights that may have resulted in a manifest injustice or a miscarriage of justice. Hoffman v. Koehler, 757 S.W.2d 289, 292 (Mo.App.1988). See also Rule 84.13(c). This court will review the issues gleaned from the argument portion of plaintiff's brief for plain error. Defendants' motion to dismiss the appeal or, alternatively, to strike plaintiff's brief is denied.
Plaintiff previously sued defendants in the United States District Court, Eastern District of Missouri. See Gill v. Farm Bureau Life Ins. Co. of Missouri, 715 F.Supp. 945 (E.D.Mo.1989). In that case, plaintiff brought an action alleging conspiracy to infringe First Amendment rights on the basis of a claimed violation of 42 U.S.C. § 1985(3); an action alleging voting intimidation on the basis of § 130.028; 4 and an action alleging tortious interference with a business or contractual relationship. Id. at 946. The district court dismissed the count alleging violation of 42 U.S.C. § 1985(3). The 8th Circuit affirmed, noting:
Upon dismissing the federal claim, the District Court had discretion to dismiss Gill's pendent claims under Missouri law. U.M.W.A. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Since the order appealed from did not explicitly consider the merits of those claims, we construe it as dismissing them without prejudice. Stokes v. Lokken, 644 F.2d 779, 785 (8th Cir.1981).
Gill v. Farm Bureau Life Ins. Co. of Missouri, 906 F.2d 1265, 1266 n. 5 (8th Cir.1990).
Plaintiff, in his reply brief, acknowledges that the claims that are the bases of this appeal were the pendent jurisdiction claims originally filed in the U.S. District Court. Plaintiff provided the following chronology of events that occurred after the motion to dismiss had been filed in the U.S. District Court:
Date Action
June 2, 1989 Motion to dismiss sustained by district court
August 14, 1990 District court's order dismissing case affirmed by 8th
Circuit Court of Appeals
May 24, 1991 Petition filed in state court
June 20, 1991 Defendants' motion to dismiss filed in state court
September 4, 1991 Trial court took motion to dismiss under advisement
July 29, 1992 Trial court granted defendants' motion to dismiss as to both
counts of petition.
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Count I of plaintiff's petition alleged that plaintiff entered into contracts with the corporate defendants; that defendant Lowell Mohler was the "Assistant to the President" of all the corporate defendants and of "Missouri Farm Bureau Federation"; that in 1988 plaintiff was "co-Chairman of the Finance Committee" for a candidate for U.S. Congress; that Mr. Mohler, in conspiracy with others, forced and required a regional sales manager for the corporate defendants "to terminate" plaintiff effective September 20, 1988. Plaintiff alleged "[t]hat said termination was, in fact, pretextual, and was designed and intended to 'send a message' to all other Farm Bureau agents to toe the political line espoused by the defendants and each of them." He contended that he was entitled to recover "civil penalty damages" from defendants by reason of § 130.028.
Section 130.028 describes acts that constitute penal violations when done by "[e]very person, labor organization, or corporation organized or existing by virtue of the laws of this state, or doing business in this state." It further provides:
Any person aggrieved by any act prohibited by this section shall, in addition to any other remedy provided by law, be entitled to maintain within one year from the date of the prohibited act, a civil action in the courts of this state, and if successful, he shall be awarded civil damages of not less than one hundred dollars and not more than one thousand dollars, together with his costs, including reasonable attorneys fees. Each violation shall be a separate cause of action.
The act complained about in Count I is the termination of plaintiff's business relationship with the corporate defendants that occurred "effective September 20, 1988." However, plaintiff's petition was filed May 24, 1991, more than "one year from the date of the prohibited act." Id.
Plaintiff contends that the statute of limitations was tolled during the time litigation was pending in the federal court. Since he filed the action in state court within one year of dismissal of the case in federal court, plaintiff argues that the statute of limitations was not violated. He In Norton the court held that a petition that would otherwise have been barred by the applicable statute of limitations was timely filed due to plaintiffs having previously filed an action by which they sought recovery on the same claim. The plaintiffs in Norton had taken a voluntary nonsuit in the previous action. The court stated:
relies on Norton v. Reed, 253 Mo. 236, 161 S.W. 842 (1913), for that proposition.
It follows that the plaintiffs might suffer a voluntary nonsuit, as they did without prejudice from the operation of the statute of limitations, provided they should begin a new action within one year after the nonsuit suffered.
Plaintiff states that "[s]ince at least" the time of Norton v. Reed, supra, "Missouri has recognized the doctrine that pending litigation tolls the statute of limitations." The "tolling" in Norton occurred, however, not by reason of the length of time the predecessor lawsuit was pending, but because the plaintiffs had taken a voluntary nonsuit and, thereafter, begun the same cause of action "within one year after the nonsuit suffered." 161 S.W. at 847. Norton was filed October 23, 1907. Its predecessor lawsuit had been dismissed on June 3, 1907, upon voluntary nonsuit. The relief sought in Norton was recovery of a tract of land. Section 4262, RSMo 1899, prescribed the time in which actions could be brought to recover land. Section 4285, RSMo 1899, applied to actions brought within times specified in that chapter of the statutes. It provided that plaintiffs who suffered nonsuits could refile their actions "within one year after such non-suit suffered."
A similar statute, § 516.230, was in effect at the time plaintiff filed this case. However, it is not a general procedural statute. Stine v. Kansas City Terminal Ry. Co., 564 S.W.2d 619, 620-21 (Mo.App.1978). Section 516.230, as did § 4285, RSMo 1899, applies only to civil actions commenced in accordance with certain statutes, specifically §§ 516.010--.370. The limitation on the applicability of § 516.230 is reinforced by § 516.300. It states:
The provisions of sections 516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute.
See Stine v. Kansas City Terminal Ry. Co., supra, at 621.
The time limit for bringing the action set forth in Count I is prescribed in § 130.028.2. It was required to be brought "within one year from the date of the prohibited act." The petition showed, on its face, that Count I was barred by limitation. Garth v. Motter, 248 Mo. 477, 154 S.W. 733, 734 (1913); Petty v. Tucker, 166 Mo.App. 98, 148 S.W. 142, 144 (1912). This court finds no error, plain or otherwise, in the trial court's dismissal of Count I.
Count II of the petition attempted to plead a cause of action for tortious interference with a business or contractual relationship. It was directed to contractual relationships between plaintiff and the respective...
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