Kingsley v. Burack

• Decision Date: 14 April 1976
• Docket Number: No. 59081,59081
• Citation: Kingsley v. Burack, 536 S.W.2d 7 (Mo. 1976)
• Parties: Maurice S. KINGSLEY, Appellant, v. Albert J. BURACK et al., Respondents.
• Court: Missouri Supreme Court

Page 7

536 S.W.2d 7

Maurice S. KINGSLEY, Appellant, v. Albert J. BURACK et al., Respondents.

No. 59081.

Supreme Court of Missouri, En Banc.

April 14, 1976.

William C. Maier, Dubail, Judge, Kilker & Maier, St. Louis, for appellant.

Gideon H. Schiller, Ackerman, Schiller & Schwartz, Clayton, for respondents.

BARDGETT, Judge.

Plaintiff-appellant's action was dismissed by the trial court for failure to join a necessary party and an appeal was taken to the Missouri court of appeals, St. Louis district, where, by opinion, the order of dismissal was affirmed. On application of appellant, the case was transferred here by order of this court because the circuit court's ruling and the court of appeals opinion presented a serious challenge to the scope of S.Ct.Rule 52.04 ¹, as amended effective December 1, 1972, Art. V, sec. 9, Mo.Const.1945, as amended. S.Ct.Rule 83.03.

On September 20, 1973, plaintiff-appellant (hereinafter plaintiff) sued defendants alleging plaintiff was the owner of a one-half interest in an apartment complex; that plaintiff entered into an oral contract with his co-owner (unnamed) whereby each co-owner was to supply fifty percent of the purchase price of the complex and each was to receive fifty percent of the rents and profits therefrom; that in June 1973 defendants Buracks, individually and as agents of the Alson Real Estate Co., knowingly and wilfully represented to the tenants of the apartments that they were the authorized managers of the apartments knowing the same to be false, and pursuant to such misrepresentations collected rents from the tenants and deposited same to the account of Alson which money was due to plaintiff; that plaintiff demanded the defendants cease the misrepresentation and remit to plaintiff fifty percent of the rents collected but defendants have wilfully refused to do so; that since June 1973 to date of suit, plaintiff was damaged in the sum of $3,000 per month. Plaintiff prayed judgment for $12,000 plus $3,000 per month from October 1973 until defendants ceased the false representation and punitive damages of $50,000 against each defendant.

On November 27, 1973, defendants filed a verified motion to dismiss denying plaintiff's allegations that he was an individual owning a one-half interest in the apartment complex; that the unnamed co-owner alleged in plaintiff's petition is plaintiff's wife Shirley; that the sole interest of plaintiff in the complex is that of joint tenant, and sought dismissal on the ground that the action could not be maintained without joining plaintiff's wife, the joint tenant, as a necessary party.

On December 6, 1973, the trial court entered the following order: 'Defendants' Verified Motion to Dismiss argued, submitted and sustained. Plaintiff granted thirty days within which to join joint tenant as a party plaintiff or defendant, otherwise cause shall stand as dismissed.' Plaintiff then appealed the order of dismissal.

Since the verified motion to dismiss was undenied, it constituted competent evidence as to the facts stated therein. Litzinger v. Pulitzer Publishing Company, 356 S.W.2d 81, 87(2) (Mo.1962); Rule 55.28.

The verified motion established that the unnamed co-owner was plaintiff's wife and their interest in the premises was that of joint tenants.

We will not undertake to categorize the nature of plaintiff's suit on the record before us as it is not necessary to do so. There have been no motions attacking the petition nor any responsive pleadings filed. The only motion filed by defendants sought dismissal for failure to join the co-owner joint tenant. It appears that the case was dismissed solely for failure to join the co-owner.

Plaintiff contends the trial court had no authority to dismiss for nonjoinder under Rule 52.06, entitled 'Misjoinder and Nonjoinder of Parties', which provides:

Misjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.

The substantive provision of 52.06 prohibits dismissal for misjoinder. It does not prohibit dismissal for nonjoinder. The word 'nonjoinder' appears in the title because the rule, in part, provides that parties may be added by order of court on motion of a party or on the court's own initiative. If a party is to be added, it is obvious that such party was not a party under the original pleadings--not having been joined (non-joinder) in the original petition. Rule 52.06 therefore, does not, in itself, either authorize or prohibit dismissal for nonjoinder.

Plaintiff cites Mercantile Trust Company v. Chase Hotel, Inc., 510 S.W.2d 807 (Mo.App.1974). There the circuit court dismissed a two-count petition on three grounds, one of which was failure to join a defunct corporation as a defendant. In the opinion the court of appeals held, inter alia, that misjoinder is not a ground for dismissal citing Rule 52.06 which is, of course, correct, and after ruling on other issues reversed and remanded for further proceedings. It appears from the factual statement that the case involved nonjoinder rather than misjoinder, and so Rule 52.06 was probably not the applicable rule, but the other and more important issues upon which the decision of the court of appeals was based make it clear that the result reached was correct and would have been the same even if the court had considered the joinder issue under Rule 52.04 rather than Rule 52.06.

The point is overruled.

Rule 55.27(a)(7) provides that a party may raise by motion or responsive pleading failure to join a party under Rule 52.04. When the issue is whether the suit should proceed or be dismissed for failure to join a person as a party (nonjoinder), Rule 52.04 is the procedural rule which controls the matter.

Rule 52.04 provides:

(a) Persons to be Joined if Feasible. A person shall be joined in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant.

(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(1)--(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent party being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to him or those already parties; second, the extent to which by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivisions (a)(1)--(2) hereof who are not joined, and the reasons why they are not joined.

(d) Exception of Class Actions. This rule is subject to the provisions of Rule 52.08.

The record in this case does not show the basis upon which the trial court dismissed the action other than in a conclusionary sense--failure to join plaintiff's wife Shirley as a plaintiff or defendant. Nor does it reveal that the trial court considered the matter upon the criteria set forth in Rule 52.04.

Defendants seek to uphold the trial court's dismissal upon the basis that plaintiff and his wife are joint owners of the apartment complex; that the nonparty joint tenant is, therefore, a 'necessary' party and, consequently, and as a matter of law, an indispensable party. This position is arrived at by restricting the consideration to be given to the issue of dismissal under Rule 52.04 for nonjoinder to the conceptual aspects of a joint tenancy. Defendants' position disregards the pragmatic approach required by the rule and equates 'necessary' with 'indispensable'. The rule proceeds on the basis that a person may be conceptually necessary but nevertheless allows the suit to proceed unless the absent party is pragmatically indispensable in the particular case. Whether or not a person is an indispensable party must be determined by applying the criteria of the rule, and the finding of indispensability is the end result--not the starting point.

Rule 52.04 is virtually the same as Rule 19 F.R.Civ.P. with references to jurisdiction and venue eliminated. The identifications of the comparable paragraphs and phrases of both rules by number and letter are also the same which makes comparison between the two a bit easier. Rule 19 F.R.Civ.P. was adopted by the United States Supreme Court in February 1966, effective July 1, 1966. In 1968, about five years before Rule 52.04 became effective in Missouri, the United States Supreme Court decided Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 773, 19 L.Ed.2d 936 (1968), which is the leading case construing Rule 19 F.R.Civ.P. ²

Numerous federal cases have been decided following Provident Tradesmens. See Vol. 28 U.S.C.A. Rule 19 and pocket part supplement. Since Rule 52.04 is practically the same as Rule 19, it is appropriate to use federal...