Jordan v. Greene, WD

• Decision Date: 25 July 1995
• Docket Number: No. WD,WD
• Citation: 903 S.W.2d 252
• Parties: Jimmy R. JORDAN, Appellant, v. Arthur GREENE, et al., Respondents. 50045.
• Court: Missouri Court of Appeals

Page 252

903 S.W.2d 252

Jimmy R. JORDAN, Appellant, v. Arthur GREENE, et al., Respondents.

No. WD 50045.

Missouri Court of Appeals Western District.

July 25, 1995.

Jimmy J. Jordan, Grand Prairie, TX, pro se.

Kathleen Hauser, City Atty., Lana K. Torczon, Asst. City Atty., Kansas City, for respondents.

Before HANNA, P.J., and BERREY and SPINDEN, JJ.

BERREY, Judge.

Jimmy R. Jordan, pro se appellant, appeals the trial court's order granting respondent Neighborhood and Community Services Development Department's (hereinafter "Department") motion to dismiss and respondent Arthur Greene's (hereinafter "Greene") motion for summary judgment as to appellant's action for defamation. Appellant claims four specific points of error.

He first contends the trial court erred in granting summary judgment in favor of respondent Greene because "the court did not properly apply the statute of limitations in that no consideration was given to appellant's lack of knowledge of the defamatory acts, ... leaving a fact issue, defeating summary judgment." Appellant next argues the trial court erred in granting summary judgment in favor of respondent Greene because "the court applied the wrong limitations statute ..." For his third point, appellant claims the trial court erred in granting respondent Department's motion to dismiss because "the name of the party sued was not a critical error ..." Finally, appellant asserts the trial court erred in its written order of September 7, 1994, because "it incorrectly issued judgment for each defendant ..." Affirmed.

In March of 1989, appellant owned and lived on his residential property located at 3015 Linwood in Kansas City, Missouri. On March 3, 1989, the Department sent a letter to appellant, admittedly received, notifying him of certain violations of Chapter 25 of the City's ordinances relating to rank weeds and open storage. On March 11, 1989, appellant sent a reply letter to the Department denying the existence of violations. On March 12, 1989, appellant "filed an appeal contesting the charge of violations."

On May 5, 1989, appellant moved to Grand Prairie, Texas, allegedly as the result of a job transfer. Then, on June 8, 1989, the Property Maintenance Appeals Board considered his appeal. After weighing the evidence and testimony presented, the Appeals Board found that 1) appellant's residential premises were being used for open storage of unapproved items; 2) appellant's residential premises were being used for temporary open storage of building materials stored in an illegal manner; and 3) the cited violation concerning rank weeds was made in error and should be omitted.

On June 9, 1989, appellant spoke by telephone to David Park, the manager of respondent Department, concerning the erroneous charge of rank weeds. By appellant's own admission, he also hired an attorney on June 9, 1989, to work on his behalf to settle the remaining allegations. On August 30, 1989, David Park sent a letter of apology to appellant explaining the citation of weed violation was made in error and assuring appellant that respondent Greene did not intend to falsely accuse appellant.

On March 26, 1990, summons number G722288, signed by respondent Greene as complainant, was issued to appellant at his address in Kansas City, Missouri. This summons cited appellant with a nuisance violation of using his residential premises for long term storage of building materials. However, this summons was dismissed for ineffective service because it was mailed to the wrong address. Then, on March 22, 1991, two new summonses signed by respondent Greene as complainant were issued to appellant--one numbered G777410 was issued to appellant at his address in Kansas City, Missouri and cited violations of open storage of unapproved items on residential premises; the other, numbered G778137, was issued to appellant at his address in Grand Prairie, Texas and cited violations of using residential premises for long term storage of building materials. Summons number G777410 was subsequently dismissed for ineffective service because it was mailed to the wrong address.

Appellant admittedly received summons number G778137 at his address in Texas and filed a motion to dismiss. However, appellant did not attend the October 11, 1991, court hearing regarding summons number G778137, and a bench warrant was ordered for appellant's arrest.

On June 7, 1994, appellant filed this action in defamation, alleging libel and slander against respondents Greene and the Department. On July 15, 1994, respondent Greene filed a motion for summary judgment claiming the action was barred by the statute of limitations contained in § 516.140, RSMo.1986. Also on July 15, 1994, respondent Department filed a motion to dismiss claiming the Department was not an independent body and therefore not an entity capable of being sued. On August 15, 1994, the trial court sustained both motions. Upon appellant's request, the trial court reconsidered the respondents' motions and its own order to take into account appellant's responsive pleadings that were initially deemed filed out of time. Ultimately, however, on September 7, 1994, the trial court entered a second order sustaining the motions, and this appeal followed.

In Points I and II, appellant claims the trial court erred in granting summary judgment in favor of respondent Greene. On appeal from summary judgment, the issue is one of law and our review is essentially de novo. We must test the propriety of summary judgment by the same standards as those which should be employed by the trial court. Dana Commercial Credit Corp. v. Cukjati, 880 S.W.2d 612 (Mo.App.1994). We review the record in the light most favorable to the party against whom judgment was entered. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo. banc 1984). However, facts set forth by affidavit or otherwise in support of a party's motion for summary judgment are taken as true unless contradicted by the nonmoving party's response. Cherry v. City of Hayti Heights, 563 S.W.2d 72, 75 (Mo. banc 1978). To overcome the motion, the nonmoving party must set forth specific facts showing a genuine issue for trial. St. Charles County v. Dardenne Realty Co., 771 S.W.2d 828 (Mo.1989).

For Point I, appellant asserts a fact issue exists to prevent summary judgment. He recognizes that § 516.140, RSMo.1986, imposes a two-year period of limitations for actions sounding in libel or slander. However, he claims to have lacked knowledge of the allegedly defamatory acts thereby tolling the two-year period of limitations contained in § 516.140. Appellant relies on § 516.100, RSMo.1986 which provides that:

[F]or the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, ...

Appellant argues that he lacked knowledge of respondent Greene's defamatory acts so that his damages were therefore not sustained and capable of ascertainment. Thus, he claims a jury question is presented as to when appellant knew of respondent Greene's activities.

In support, appellant cites Vogel v. A.G. Edwards & Sons, Inc., 801 S.W.2d 746 (Mo.App.1990). In Vogel, plaintiff-investors brought suit against a brokerage firm alleging that their broker breached his fiduciary duty by "churning" accounts. The court held that the plaintiffs' action was not barred by the statute of limitations as a matter of law because a jury question may be presented on the issue of when the plaintiffs knew that the broker's trading constituted churning, triggering the statute of limitations. Id. at 753, 756. Whether the issue becomes a jury question depends on the evidence offered. Id. at 756. There was evidence in Vogel that the plaintiff-investors testified that the trading was not what they expected, that the plaintiff-investors received trade confirmations daily and received monthly account summaries, and that the plaintiff-investors were in daily contact with the broker during the period of churning. The court held this evidence did not establish the plaintiffs' knowledge of the churning as a matter of law. Id. However, the rationale for the court's holding involved the plaintiff-investors' reliance on the broker as an expert and their possible lack of understanding as to the meaning of the trading being discussed. Id.

The instant case is immediately distinguishable. Contrary to appellant's argument, the record clearly demonstrates that he knew the allegedly defamatory nature of respondent Greene's actions long before his filing of the present action. The record shows that appellant sent a letter to the Department on March 11, 1989, denying the existence of violations. And on March 12, 1989, he filed an appeal contesting the charge of the violations. Following the June 8, 1989, hearing, held by the Property Maintenance Appeals Board, appellant telephoned the manager of the Department. In his brief, appellant admits the purpose of the call was to "express[ ] his concern about the incorrect testimony provide[d] at the hearing by Inspector Greene." He also admittedly hired an attorney that same day "to work on his behalf to settle the remaining allegations." Then, on August 30, 1989, the manager of the Department sent a letter to appellant stating that respondent Greene was mistaken about the alleged weed violation, but that Greene never intended to falsely accuse appellant.

Additionally, although one of the summonses dated March 22, 1991, was eventually dismissed for ineffective service by mail, appellant admittedly had notice of the summons effort. In his brief, appellant states:

On November 1, 1990, a hearing was held regarding the above summons. Appellant was not in attendance, having only learned of the hearing a few days prior. Appellant did however quickly prepare and send an objection to the hearing based...