Hartman v. Logan, WD 83039

CourtCourt of Appeal of Missouri (US)
Writing for the CourtCynthia L. Martin, Judge
Citation602 S.W.3d 827
Parties Jason HARTMAN, et al., Appellants, v. Ken LOGAN and Quentin Kearney, Respondents.
Docket NumberWD 83039,C/w WD 83139
Decision Date26 May 2020

602 S.W.3d 827

Jason HARTMAN, et al., Appellants,
v.
Ken LOGAN and Quentin Kearney, Respondents.

WD 83039
C/w WD 83139

Missouri Court of Appeals, Western District.

OPINION FILED: May 26, 2020


Kenneth N. Caldwell, Kansas City, MO, for appellants.

David L. Zeiler, Kansas City, MO, for respondents.

Before Division One: Lisa White Hardwick, Presiding Judge, Cynthia L. Martin, Judge and Thomas N. Chapman, Judge

Cynthia L. Martin, Judge

Jason Hartman ("Hartman") and Platinum Properties Investor Network, Inc. ("PPIN") (collectively "the Plaintiffs") appeal from the trial court's entry of two judgments sustaining Ken Logan ("Logan") and Quentin Kearney's ("Kearney") (collectively "the Named Defendants") motion to dismiss the Plaintiffs' amended petition. The Plaintiffs argue that the trial court erred in dismissing their amended petition because the Plaintiffs' claims were not barred by the statute of limitations and because the trial court did not allow the Plaintiffs time to engage in discovery to demonstrate that the amendment of the petition related back because the Named Defendants were aware of the pending action. We vacate one of the two judgments entered by the trial court. Because the remaining judgment dismissed some claims that were not barred by the statute of limitations, we affirm in part, and reverse and remand in part.

Factual and Procedural History

On April 25, 2017, the Plaintiffs filed a petition ("Original Petition") in the Circuit Court of Jackson County against John Doe and Does 1 through 100 (collectively "the Fictitious Defendants"). The Original Petition alleged that Hartman is the principal owner and officer of PPIN, and that the Plaintiffs are in the business of real estate investment, including buying and selling rental properties, referring similar opportunities to others, and conducting seminars on real estate investing throughout the country. The Original Petition alleged that the Fictitious Defendants are individuals who are responsible for, among other things, publishing allegedly defamatory statements about the Plaintiffs on the internet on or about April 28-29, 2015 and in advance of one of the Plaintiffs' seminars in Memphis, Tennessee on May 2-3, 2015. The Original Petition alleged six causes of action against the Fictitious Defendants: defamation, tortious interference with prospective economic advantage or business expectancy, negligence, prima facie tort,

602 S.W.3d 831

injurious falsehood, and a request for injunctive relief.

After filing notices to take the depositions of records custodians of internet providers (Comcast of Missouri, LLC and Comcast Business Communications, LLC), the Plaintiffs filed a first amended petition on October 18, 2017 ("Amended Petition"). The Amended Petition added Logan and Kearney as defendants, alleging that the Named Defendants are also engaged in the real estate business and are the Plaintiffs' former business associates and current competitors. The Amended Petition alleged that, since 2010, the Named Defendants have been involved in litigation with Hartman regarding the management of property owned by Hartman. The Amended Petition alleged, upon information and belief, that when the allegedly defamatory statements were published online in 2015, the Named Defendants operated several businesses at an address in Blue Springs that had a Comcast account with an IP address of 66-208-221-253. The Amended Petition alleged that this IP address was associated with an email address that included the name, "Russel Harrington," which was the screen name used to make the alleged defamatory statements. The Named Defendants were each served with a copy of the Amended Petition on August 7, 2018.

Eight days later, on August 15, 2018, the Named Defendants filed a motion to dismiss the Amended Petition ("Motion to Dismiss"). The Motion to Dismiss asserted that the Amended Petition failed to state a claim against the Named Defendants. In particular, the Motion to Dismiss argued that the facts averred in the Amended Petition were not grounded in truth, and cited to attached deposition testimony given by Hartman in an unrelated suit in which he testified that he did not have "specific proof" that either Logan or Kearney personally posted the alleged defamatory statements about the Plaintiffs online. The Motion to Dismiss argued that, because Hartman acknowledged that he did not have "specific proof" that either of the Named Defendants personally posted the alleged defamatory statements online, the Amended Petition was in violation of Rule 55.03(c)(3)'s requirement that all allegations or factual contentions have evidentiary support.1 The Motion to Dismiss further argued that, assuming arguendo that the Plaintiffs had evidentiary support for their claims against the Named Defendants, the applicable statute of limitations barred the Plaintiffs' claims against the Named Defendants. The Motion to Dismiss argued that section 516.1402 sets forth a two-year statute of limitations on claims of defamation and injurious falsehood so that, by the time the Amended Petition was filed on October 18, 2017, the claims against the Named Defendants were time barred. The Motion to Dismiss further asserted that the Amended Petition did not relate back to the April 25, 2017 filing of the Original Petition because the Named Defendants did not have notice of the Original Petition.

The trial court held a case management conference on August 17, 2018.3 The trial court entered an order setting a second case management conference for September

602 S.W.3d 832

14, 2018, and indicated that, if the Plaintiffs' counsel filed a motion to withdraw, the trial court would take up the motion at that time.4

The Plaintiffs' counsel filed a motion to withdraw on August 26, 2018, citing "a recently developed non-waivable conflict of interest." The motion to withdraw also asked the trial court to stay or extend any deadline to respond to the Motion to Dismiss to allow the Plaintiffs to retain new counsel.

At the September 14, 2018 case management conference, the trial court granted the motion to withdraw by Plaintiffs' counsel, and ordered that the Plaintiffs would have an additional ten days to respond to the Motion to Dismiss.

New counsel entered an appearance on the behalf of the Plaintiffs on September 18, 2018, and filed suggestions in opposition to the Motion to Dismiss ("Suggestions in Opposition") on September 24, 2018. The Suggestions in Opposition asserted that the Named Defendants had improperly attached an excerpt of Hartman's deposition to the Motion to Dismiss and requested the trial court to exclude consideration of matters outside the pleadings in accordance with Rule 55.27(a). The Suggestions in Opposition argued that as a result, the Named Defendants' assertion that the Amended Petition is without evidentiary support is meritless, as the Plaintiffs' claims are based on the identification of an IP address associated with a building that the Named Defendants own. The Suggestions in Opposition also asserted that the Motion to Dismiss was simply an attempt to prevent the Plaintiffs from uncovering during discovery other evidence in support of the alleged connection to the Named Defendants. The Suggestions in Opposition further argued that the two-year statute of limitations applied only to the defamation claim set forth in the Amended Petition, and that the statute of limitations for that claim had not yet expired when the Amended Petition was filed because determining when the statute of limitations begins to run is a factual inquiry not clearly established on the face of the Amended Petition. Finally, the Suggestions in Opposition argued that determining whether the Amended Petition related back to the filing of the Original Petition would require additional discovery to determine whether the Named Defendants were aware of the Original Petition.

The Named Defendants filed their reply suggestions in support of the Motion to Dismiss ("Reply Suggestions") on October 5, 2018. The Reply Suggestions addressed whether it would be appropriate for the trial court to enter summary judgment in favor of the Named Defendants. The Reply Suggestions argued that the trial court gave the Plaintiffs notice that it intended to treat the Motion to Dismiss as a motion for summary judgment when, during the August 17, 2018 case management conference, it gave the Plaintiffs thirty days to respond to the Motion to Dismiss (the same amount of time allowed by Rule 74.04 to respond to a summary judgment motion) instead of the ten-day response time allowed for motions to dismiss pursuant to the local rules of the Circuit Court of Jackson County. The Reply Suggestions, relying on affidavits by Logan and Kearney, further asserted that neither Logan nor Kearney own the property in Blue

602 S.W.3d 833

Springs in question and that neither Logan nor Kearney have a Comcast account with the IP address identified in the Amended Petition. In turn, the Reply Suggestions argued that the Amended Petition's claims against the Named Defendants were without evidentiary support in violation of 55.03(c)(3) and necessitated either the dismissal of the Plaintiffs' claims against the Named Defendants or the entry of summary judgment in favor of the...

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4 practice notes
  • Brown v. Pint, WD 84032
    • United States
    • Court of Appeal of Missouri (US)
    • August 3, 2021
    ...we assume all of the petition's averments are true and liberally grant all reasonable inferences drawn therefrom." Hartman v. Logan , 602 S.W.3d 827, 836 (Mo. App. W.D. 2020).2 Attached to Brown's petition as Exhibit C is a portion of the beneficiary deed; specifically, it is labeled as "Ex......
  • Brown v. VA Second LP, WD 84077
    • United States
    • Court of Appeal of Missouri (US)
    • August 3, 2021
    ...a Motion to Reconsider. VA Second LP then filed its Second Motion to Reconsider, in light of this court's opinion in Hartman v. Logan , 602 S.W.3d 827 (Mo. App. 2020), which had been handed down in the interim.2 While VA Second LP contends that we should not reach the merits of Brown's clai......
  • Richest v. City of Kan. City, WD 84464
    • United States
    • Court of Appeal of Missouri (US)
    • February 15, 2022
    ...we assume all of the petition's averments are true and liberally grant all reasonable inferences drawn therefrom. Hartman v. Logan , 602 S.W.3d 827, 836 (Mo. App. W.D. 2020).3 In his petition, Richest also alleges "he received this unjust and unfair treatment on the basis of his race[,]" th......
  • Richest v. City of Kansas City, WD84464
    • United States
    • Court of Appeal of Missouri (US)
    • February 15, 2022
    ...we assume all of the petition's averments are true and liberally grant all reasonable inferences drawn therefrom. Hartman v. Logan, 602 S.W.3d 827, 836 (Mo. App. W.D. 2020). [3] In his petition, Richest also alleges "he received this unjust and unfair treatment on the basis of his race[, ]"......

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