Magee v. Blue Ridge Professional Bldg. Co., Inc.

• Decision Date: 17 December 1991
• Docket Number: No. 73282,73282
• Citation: 821 S.W.2d 839
• Parties: Hope MAGEE, Appellant, v. BLUE RIDGE PROFESSIONAL BUILDING CO., INC., Lawrence D. Mock, Henry and Jacqueline Houser, d/b/a Westwood Ornamental Iron Company, Respondents.
• Court: Missouri Supreme Court

Page 839

821 S.W.2d 839

Hope MAGEE, Appellant, v. BLUE RIDGE PROFESSIONAL BUILDING CO., INC., Lawrence D.

Mock, Henry and Jacqueline Houser, d/b/a Westwood

Ornamental Iron Company, Respondents.

No. 73282.

Supreme Court of Missouri,

En Banc.

Dec. 17, 1991.

William H. Pickett and David T. Greis, Kansas City, for appellant.

Paul D. Cowing, Amy L. Peck, and Therese M. Schuele, Kansas City, for respondents.

HOLSTEIN, Judge.

The trial court dismissed Count II of plaintiff Hope Magee's petition in which she alleged that defendant, Lawrence D. Mock, negligently designed and constructed a stairway. She claims to have fallen and sustained injury on the stairway due to the negligent design and construction. The dismissal was based on § 516.097. ¹ Among other arguments, plaintiff attacks the constitutionality of that statute. This Court has jurisdiction of the appeal. Mo. Const. art. V, § 3. Affirmed.

The Blue Ridge Professional Building was constructed in 1964 and 1965. Included in the construction was a stairway. At the time, Mock owned shares and was an officer of the corporation that constructed the building. Mock sold all interest in the corporation in 1968.

On January 28, 1985, plaintiff allegedly fell on the stairway in the building, sustaining injury. She filed suit March 13, 1987, naming only the Blue Ridge Professional Building Company as defendant. Thereafter, on April 21, 1989, an amended petition was filed. In it, Mock, Henry Houser and Jacqueline Houser were named as additional defendants. The amended petition alleged that the steps deviated from accepted standards for height of riser and width of tread, and that the steps were not finished or coated with anti-skid materials. The petition alleged that Mock was "primarily responsible for the design and construction" of the building and the stairs.

Mock filed an answer and a motion to dismiss on June 16, 1989. Thereafter, on August 3, 1989, Mock filed an amended answer and an amended motion to dismiss, titled "Amended Suggestions in Support of Motion to Dismiss." These pleadings alleged that plaintiff's claim was barred by the statute of limitations found in § 516.097. On August 18, 1989, a hearing was held on the amended motion to dismiss. Plaintiff argued that § 516.097 violated the open courts provision of the Missouri Constitution and the due process and equal protection provisions of the state and federal constitutions. These claims were articulated primarily in the oral argument of the motion to dismiss before the trial court. On August 28, 1989, the trial court, without stating the basis for its decision, granted Mock's motion to dismiss.

On May 21, 1990, plaintiff voluntarily dismissed her claims against all remaining defendants without prejudice. She then appealed from the trial court's dismissal of her claim against Mock. The appeal was initially lodged in the Missouri Court of Appeals, Western District. Due to the constitutional attack on § 516.097, the cause was transferred to this Court.

I.

At the outset plaintiff recognizes the questionable appealability of the order of dismissal. The leading case on the question of whether an appeal lies based on the record presented in this case is Bolin v. Farmers Alliance Mutual Ins. Co., 549 S.W.2d 886 (Mo. banc 1977). In that case the plaintiff had sued two defendants. A summary judgment in favor of one defendant was entered on March 21, 1975. A separate order dismissing the claim against the second defendant, without prejudice, was entered on March 25, 1975. Plaintiffs sought to appeal the summary judgment of March 21, 1975. The Court noted that with some exceptions, an aggrieved party may appeal "from any final judgment in the case." Bolin, 549 S.W.2d at 889, quoting § 512.020. The Court stated that a judgment is final if it disposes of all parties and all issues, but that the March 25, 1975, order did not dispose of all parties and all issues. The only method to determine that no issues or parties remained required looking at both the March 21 and March 25 orders. The Court concluded that an appellate court should not be required to search the record to determine if various orders entered at different times amounted collectively to a final judgment and thus, no final judgment had been entered in that case. Bolin, 549 S.W.2d at 891.

The problem with Bolin is that any reasonable reading of the facts in that case leads to the inescapable conclusion that the summary judgment, coupled with the dismissal without prejudice, concluded the case, leaving nothing for the trial court to decide. The sole basis for denial of appellate jurisdiction was the inconvenience of having to look at more than one document to determine if the judgment was final.

Judicial inconvenience is not the proper measure for determining if appellate jurisdiction exists. Inconvenience to judges must give way to the just, speedy and inexpensive disposition of cases on their merits. See Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 1513, 8 L.Ed.2d 510 (1962). The rule, well founded in reason and law, is that a judgment is final that disposes of all issues as to all parties, leaving nothing for future determination. Pizzo v. Pizzo, 365 Mo. 1224, 295 S.W.2d 377, 379 (Mo. banc 1956); State ex rel. Thompson v. Terte, 357 Mo. 229, 207 S.W.2d 487, 489 (Mo. banc 1947); Quiktrip Corp. v. City of St. Louis, 801 S.W.2d 706, 711 (Mo.App.1990). In this case, when plaintiff dismissed her action as to the remaining defendants, the order of dismissal for failure to state a cause of action against Mock became a final judgment. To the extent that Bolin is in conflict, it is overruled. ²

II.

Plaintiff's brief on appeal raises a number of issues regarding the construction and constitutionality of § 516.097. In each of the points addressing these issues, plaintiff asserts that the trial court erred in granting "summary judgment." The record does not reflect any summary judgment. The record only reflects a dismissal of plaintiff's petition. The difference between summary judgment and dismissal of the claim is significant because the standard of appellate review is different. When reviewing the grant of a motion to dismiss a petition, all facts alleged in the petition are deemed true and the plaintiff is given the benefit of every reasonable intendment. Lowrey v. Horvath, 689 S.W.2d 625, 626 (Mo. banc 1985). When reviewing a summary judgment, the appellate court looks not just to the petition but to all the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits to determine if there is any material fact issue and that the moving party was entitled to judgment as a matter of law. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 243-44 (Mo. banc 1984); Rule 74.04(c).

In this case the plaintiff's amended petition asserted an injury in 1985 due to negligent design and construction. The petition is silent as to the date of design and construction. Generally, a statute of limitations is an affirmative defense. Rule 55.08. Nevertheless, plaintiff admits facts establishing that defense. Here the defendant alleged in the trial court that the building was complete in 1965 and the claim was barred by § 516.097. Plaintiff's response was to file suggestions which included portions of Mock's deposition establishing that the construction occurred in 1964 and 1965. Plaintiff's brief also admits, in the fact statement, that the Blue Ridge Professional Building was constructed in 1964 and 1965. The brief further states that Mock disposed of all interest relating to the building in 1968. Where the plaintiff's brief on appeal admits facts omitted from the petition that if true will defeat plaintiff's cause of action, the appellate court will treat the petition as amended to include the omitted facts in determining if plaintiff stated a cause of action. Nastasio v. Cinnamon, 295 S.W.2d 117, 119 (Mo.1956). The purpose of this rule is to avoid the useless and time consuming remand of the case when the plaintiff agrees the omitted facts are true and those facts are dispositive of the case. Id. The points relied on will be treated as claiming the trial court erred in sustaining the motion to dismiss as to Mock.

Plaintiff's brief argues that even if § 516.097 is constitutional, the claim against Mock is not barred. First, plaintiff argues that the statute applies only to those persons whose "sole connection with the improvement is performing or furnishing ... the design, planning or construction, including architectural, engineering or construction services ..." § 516.097.2. Plaintiff claims that since Mock was an owner of the building in addition to his status as designer-contractor, then his connection to the building was not solely as architect, engineer or builder, and the statute is inapplicable to him.

The petition does not allege that Mock was the owner of the building or that he had some other possessory interest giving rise to a duty toward plaintiff at the time of her injury. The only allegation in the petition is that Mock designed and constructed the stairway. Documents filed with the plaintiff's suggestions in opposition to Mock's amended motion to dismiss disclose that Mock was a former officer and shareholder of the corporation that built and now owns the building. In an application for a building permit dated September 15, 1964, Mock's name appears in the block next to the word "owner." However, Mock terminated all association with the building and the corporation in 1968.

Even assuming that the plaintiff's petition has been amended to include these allegations, Mock is not shown to have any connection to the allegedly unsafe condition of the stairway that would give rise to liability separate from his connection as designer and builder. The purpose of § 516.097 is to protect those providing architectural, engineering and construction services from indeterminate liability. See Lamb v. Wedgewood...