Olean Associates Inc. v. Knights of Columbus
| Decision Date | 03 August 1999 |
| Citation | 5 S.W.3d 518 |
| Parties | (Mo.App. E.D. 1999) . Olean Associates, Inc., and Realty Development-North, Inc., Plaintiffs/Appellants, v. Knights of Columbus, Unico Management Company a/k/a Unico Properties, Inc., Nooney Krombach n/k/a NK Realty, and Sitex Environmental, Inc., Defendants/Respondents. Case Number: 74030 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of St. Louis County, Hon. Emmett M. O'Brien
Counsel for Appellant: David M. Harris
Counsel for Respondent: Kurtis B. Reeg, Michael D. Hart, David Wells, and John R. Barsanti
Opinion Summary: Olean Associates, Inc. and Realty Development-North, Inc. appeal from the judgment of the trial court sustaining Respondents' motions to dismiss. The trial court dismissed Appellants' petition with prejudice on the ground that Appellants' claims were barred by the five-year statute of limitations pursuant to Section 516.120, RSMo 1994. Appellants contend the trial court erred in dismissing the petition because the petition filed by Appellants on June 24, 1997, relates back to the petition filed by Appellants' parent corporation on June 10, 1996. Alternatively, Appellants argue that the statute of limitations had not expired as to Appellants' claims discovered and ascertained in 1997.
AFFIRMED.
Division Five holds: The trial court did not err in sustaining Respondents' motions to dismiss because the petition, on its face, did not allege that the cause of action was not barred by the statute of limitations. Further, Appellants failed to plead why the claims discovered in 1997 were not capable of ascertainment sooner.
Olean Associates, Inc. ("Olean") and Realty Development-North, Inc. ("Realty-North") (collectively referred to as "Appellants") appeal from the judgment of the trial court sustaining Respondents' motions to dismiss. The trial court dismissed Appellants' petition with prejudice on the ground that Appellants' claims were barred by the five-year statute of limitations pursuant to Section 516.120, RSMo 1994. Appellants contend the trial court erred in dismissing the petition because the petition filed by Appellants on June 24, 1997, relates back to the petition filed by Appellants' parent corporation on June 10, 1996. Alternatively, Appellants argue that the statute of limitations had not expired as to Appellants' claims discovered and ascertained in 1997. We affirm.
In 1988, Knights of Columbus and Unico Management Company ("Unico") put their respective portions of the River Roads Mall, located at 120 River Roads Mall in St. Louis County, on the market. The River Roads Mall is comprised of two separate parcels. The first parcel is the portion of the mall containing the former Dillards department store. The Dillards building parcel was owned by Knights of Columbus. The second parcel was the attached mall structure. Unico was the owner of the mall portion of the River Roads Mall property. Knights of Columbus and Unico engaged the services of Nooney Krombach ("Krombach") as the commercial listing agent. Krombach also managed the Dillards building for Knights of Columbus.
Knights of Columbus, Unico and Krombach hired Sitex Environmental, Inc. ("Sitex") to perform an environmental assessment of the River Roads Mall property. On March 16, 1988, Sitex submitted its report to Knight of Columbus, Unico and Krombach. In this March report, Sitex disclosed that there was asbestos in the boiler room in the form of cladding to piping. In the March report, Sitex further represented the insulation in the basement of the property did not contain asbestos and there were no other environmental hazards in either the Knights of Columbus property or the Unico property. Krombach forwarded this March report to Appellants, as potential purchasers of the property.
On April 25, 1988, Sitex sent a second report to Knights of Columbus, Unico and Krombach. The April report notified Knights of Columbus, Unico and Krombach that the representation in the March report that the insulation in the basement of the property did not contain asbestos was incorrect. The April report advised that the 40,000 square feet of insulation did, in fact, contain asbestos. None of Respondents ever gave this April report to Appellants.
Appellants purchased the River Roads Mall property. The purchase took place in two steps because of the separate ownership of the two parcels. Olean acquired the Unico mall property in June 1988, and Realty-North acquired the Knights of Columbus Dillards building in 1990. Olean and Realty-North are subsidiaries of a parent corporation, Benderson Development Co., Inc. ("Benderson").
In December 1991, the St. Louis County Health Department and the Occupational Safety and Health Administration (OSHA) inspected the property. That inspection revealed, contrary to the first Sitex report, there was asbestos present in the property that had not been disclosed in the March 1988 Sitex report. Like the April 1988 Sitex report, the OSHA inspection revealed 40,000 square feet of insulation in the basement contained asbestos.
Benderson filed a lawsuit in St. Louis County Circuit Court on June 10, 1996, seeking recovery from Knights of Columbus, Unico, Krombach, and Sitex (collectively referred to as "Respondents") for the false statements and negligence for reporting in the March 1988 Sitex report that the sprayed on insulation did not contain asbestos. On January 24, 1997, the trial court granted Benderson leave to file an amended petition. When Benderson filed its amended petition, it added Olean and Realty-North as party plaintiffs. Respondents moved to dismiss, inter alia, because Benderson did not seek leave to amend to add or substitute parties. On May 20, 1997, the trial court dismissed the petition without prejudice. An appeal was taken, but this court dismissed it on August 26, 1997, for lack of jurisdiction because there was no final judgment.
On June 24, 1997, Appellants filed the present action. The petition set forth claims for fraud, negligent misrepresentation, and civil conspiracy associated with the sprayed on insulation discovered in 1991 and added...
To continue reading
Request your trial
-
Reid v. Doe Run Res. Corp.
...Assocs. v. W.R. Grace & Co., 861 S.W.2d 686, 690 (Mo.Ct.App.1993) (negligence and strict liability); Olean Assocs., Inc. v. Knights of Columbus, 5 S.W.3d 518, 521–22 (Mo.Ct.App.1999) (civil conspiracy).IV. Choice–of–Law Analysis Would Be Premature The defendants also move for a determinatio......
-
Thomas v. Grant Thornton LLP
...fraud, and the plaintiff is deemed to know of the fraud when plaintiff possesses the means of discovery. Olean Assocs., Inc. v. Knights of Columbus, 5 S.W.3d 518, 522 (Mo.App.E.D.1999) ; Cmty. Title, 965 S.W.2d at 252. When a fiduciary relationship exists, however, only the actual discovery......
-
Thomas v. Grant Thornton LLP
...and the plaintiff is deemed to know of the fraud when plaintiff possesses the means of discovery. Olean Assocs., Inc. v. Knights of Columbus, 5 S.W.3d 518, 522 (Mo. App. E.D. 1999); Cmty. Title, 965 S.W.2d at 252. When a fiduciary relationship exists, however, only the actual discovery of t......
-
Summer Chase Second Addit. v. Taylor-Morley
...the allegations in favor of the pleader, to determine whether they involve principles of law. Olean Associates, Inc. v. Knights of Columbus, 5 S.W.3d 518, 521 (Mo.App. E.D.1999). Discussion We must first determine our jurisdiction sua sponte. Because the trial court did not specify "with pr......