Housing Authority of City of Rolla v. Kimmel

• Decision Date: 06 June 1989
• Docket Number: No. 15866,15866
• Citation: 771 S.W.2d 932
• Parties: HOUSING AUTHORITY OF the CITY OF ROLLA, Plaintiff-Respondent, v. Lee KIMMEL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 932

771 S.W.2d 932

HOUSING AUTHORITY OF the CITY OF ROLLA, Plaintiff-Respondent, v. Lee KIMMEL, Defendant-Appellant.

No. 15866.

Missouri Court of Appeals,

Southern District,

Division Two.

June 6, 1989.

Albert Crump, Jr., Williams, Crump, Turley, Crump & White, Rolla, for defendant-appellant.

Dan L. Birdsong, William R. Sachs, Thomas, Birdsong, Clayton & Haslag, Rolla, for plaintiff-respondent.

FLANIGAN, Presiding Judge.

Plaintiff Housing Authority of the City of Rolla, a "not-for-profit corporation," brought this action against defendant Lee Kimmel for damages arising out of an incident which occurred on July 23, 1986. As stated in the petition, "[defendant's] Oldsmobile rolled from its place of parking in front of defendant's residence, rolled down a hill and into the structure known as the Rolla Towers owned by [plaintiff]." At the time of the incident the vehicle was unoccupied. A jury found the issues in favor of plaintiff and awarded it $5,878.64 for damage to the building and some of its contents. Defendant appeals.

Defendant's first point is that the trial court erred in permitting plaintiff, on the day of the trial and prior to the introduction of evidence, to amend the petition in two respects: (1) changing the date of the occurrence from "the 23rd day of June, 1986," to "the 23rd day of July, 1986"; (2) "substituting a different named entity as plaintiff" by changing the description of the plaintiff, in the caption of the petition, from "Rolla City Housing Authority, a not-for-profit corporation," to "Housing Authority of the City of Rolla, a not-for-profit corporation."

Prong (1) of defendant's first point is frivolous. Defendant Kimmel himself was at the scene of the incident within minutes after its occurrence. He was well aware of the actual date of the incident.

Prong (2) is inaccurate in stating that a different entity was substituted as plaintiff. There was only one entity. The true name of the plaintiff was Housing Authority of the City of Rolla and the amendment merely corrected a clerical error in the caption.

Paragraph 1 of the petition alleged: "Plaintiff is a Corporation authorized to do business with (sic) ¹ the State of Missouri as a not-for-profit Corporation." Defendant's answer to paragraph 1 of the petition was: "Defendant lacks sufficient information to admit or deny the allegations contained therein and therefore specifically denies the allegations contained therein and specifically denies that the Plaintiff is authorized to institute and maintain litigation within the State of Missouri."

In his opening statement, Albert Crump, Jr., attorney for defendant, told the jury: "We believe that the evidence will show that there is a not-for-profit corporation known as the Housing Authority of the City of Rolla, which owns this building. The Rolla City Housing Authority is not registered with the State of Missouri or the Secretary of State nor is it a corporation in existence."

At the conclusion of Mr. Crump's opening statement plaintiff requested and received leave of court to correct the name of the plaintiff as stated in the caption. Mr. Crump's opening statement makes it clear, as argued by plaintiff here, that defendant already knew the proper name of the corporation.

Rule 55.13 ² reads:

"It shall be sufficient to aver the ultimate fact of the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of a corporation or of an organized association of persons that is made a party. When a person desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge. When a party so raises such issue, the burden of proof thereon shall be placed upon the opposite party."

In Berkel & Co. Contractors v. JEM Dev., 740 S.W.2d 683, 686 (Mo.App.1987), this court discussed Rule 55.13 and cited Missouri cases holding that none of the following allegations contained in defendant's answer is sufficient to put in issue the corporate existence of plaintiff or its right to sue: (1) a denial of plaintiff's corporate existence; (2) a denial of plaintiff's corporate capacity to sue; (3) a statement that defendant is without information as to the corporate existence of plaintiff and asks that strict proof be made thereof; (4) a statement that defendant does not have sufficient information to form a belief as to plaintiff's corporate existence and therefore denies the same.

The court also cited DePaul Community Health Center v. Trefts, 688 S.W.2d 379, 380-381 (Mo.App.1985), and HDH Development and Realty Corp., Inc. v. Smith, 717 S.W.2d 274, 276 (Mo.App.1986).

In DePaul the court of appeals held that plaintiff's corporate existence was put in issue by defendant's answer, which read: "Defendant denies that plaintiff is a corporation duly authorized and existing by law." In DePaul, however, plaintiff conceded, both in the trial court and in the court of appeals, that it was not a corporation. The court of appeals said, at 381: "We distinguish this case from the cases where the name of an existing corporation has been misstated."

In HDH the plaintiff alleged in its petition that it was a duly organized and existing Missouri corporation. Defendant's answer "specifically denied that [plaintiff] was a corporation duly existing under the laws of the State of Missouri, but alleged no 'supporting particulars.' " The court of appeals held that plaintiff had the burden under Rule 55.13 to prove its corporate existence and had met its burden.

In Berkel, supra, 740 S.W.2d at 685, this court pointed out that Rule 55.13 uses the same terminology as Rule 9(a), Federal Rules of Civil Procedure, and cited text authority for the proposition that under the federal rule a direct statement that the pleader denies his opponent's capacity to sue is sufficient to raise the issue and that pleading supporting particulars is "normally relevant" when a party is denying his own capacity to sue or be sued or the capacity of someone with whom he is closely associated.

In Berkel, supra, this court said at 686:

"The thrust of the above authority might lead one to conclude that a 'specific negative averment' as used in Rule 55.13 is equivalent to a specific denial. We doubt that to be the law. Our rules now require that when an attorney or party signs a pleading, he certifies that, after 'reasonable inquiry,' the pleading is well-grounded in fact. Rule 55.03. A proper pleading which raises the issue of corporate capacity should specifically aver why the corporation does not have authority, including matters which would be disclosed by a reasonable examination of public records. If made in good faith, a specific denial of capacity to sue without supporting particulars may be sufficient to raise the issue; but is subject to being stricken by the court pursuant to a motion for more definite statement, if supporting particulars are not added by amendment. Rule 55.27(d)." (Emphasis added.)

In his opening statement attorney Crump in effect admitted that there exists a not-for-profit corporation known as the Housing Authority of the City of Rolla and that it owned the building in question. His statement further reflects that there was no corporation known as the Rolla City Housing Authority. The statement indicates that Mr. Crump had obtained appropriate information from the secretary of state with regard to the nonentity erroneously named and the actual entity.

Although the answer, in its original form, was "well grounded in fact," Rule 55.03, with regard to "Rolla City Housing Authority, a not-for-profit corporation," it was not so grounded with respect to "Housing Authority of the City of Rolla, a not-for-profit corporation." Defendant did not amend its answer nor did it seek leave to do so. In defendant's motion for new trial there was no claim that Housing Authority of the City of Rolla did not exist or did not own the building and the contents involved. That motion complained only of the action of the court in permitting the petition to be amended "by changing the name of the party plaintiff."

It is the command of Rule 84.13(b) that this court shall not reverse the judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action. This court holds that where, as here, defense counsel was in possession of information with regard to the true name and status of the plaintiff and was aware that there was a misnomer of the plaintiff in the caption of the petition, the failure of the defendant to plead such information specifically in its answer constituted a waiver of any issue as to the legal existence of the plaintiff or the capacity of the plaintiff to sue. Prong 2 of defendant's first point has no merit.

Defendant's second point makes several attacks upon Instruction 6, plaintiff's verdict-director. The instruction reads:

"INSTRUCTION NO. 6

Your verdict must be for plaintiff if you believe:

First, defendant was the owner of the automobile and the automobile was parked at his direction, and

Second, the automobile rolled from its place of parking into the structure known as Rolla Towers, and

Third, from the facts in evidence and the reasonable inferences therefrom, you find such occurrence was the direct result of defendant's negligence, and

Fourth, as a direct result of such negligence, plaintiff sustained damage.

The term 'negligent' or 'negligence' as used in this instruction means the failure to use that degree of care that an ordinarily careful and prudent person would use under the same or similar circumstances."

Defendant's first challenge to Instruction 6 is that it was not supported by...