Pizzurro v. Estate of Hichew

• Decision Date: 24 July 1978
• Docket Number: No. 60371,60371
• Citation: 568 S.W.2d 263
• Parties: Rina L. PIZZURRO, Plaintiff-Appellant, v. ESTATE of John O. HICHEW, Deceased, Marion H. Hichew, Executrix, Defendant-Respondent.
• Court: Missouri Supreme Court

Page 263

568 S.W.2d 263

Rina L. PIZZURRO, Plaintiff-Appellant, v. ESTATE of John O. HICHEW, Deceased, Marion H. Hichew Executrix, Defendant-Respondent.

No. 60371.

Supreme Court of Missouri,En Banc.

July 24, 1978.

Thomas M. Gioia, St. Louis, for appellant.

Stephen D. Hoyne, James J. Amelung, Amelung, Wulff & Willenbrock, St. Louis, for respondent.

FINCH, Judge.

During the course of litigation involving plaintiff, Rina Pizzurro, her former husband, Vito Pizzurro, Oasis Car Wash, Inc. (hereinafter Oasis), Oasis Oil Co., Inc., (two corporations owned entirely by the Pizzurros) and several other parties, John O. Hichew was appointed as receiver pendente lite of each of the corporations. While that case was pending, but after the death of Hichew, plaintiff filed the petition herein against the estate of Hichew seeking damages claimed to have resulted from an alleged conflict of interest and breach of a fiduciary duty by Hichew when in his capacity as receiver he negotiated a lease agreement between Oasis and Shell Oil Company, Inc. The trial court dismissed the petition without prejudice and plaintiff appealed. The Missouri Court of Appeals affirmed. We ordered the case transferred and we now decide the case as though here on direct appeal. We affirm.

The petition was in two counts. Count I alleged that plaintiff owned 50 per cent of the stock of Oasis Car Wash, Inc., "(t)hat Plaintiff brings this action in the right of said corporation as a stockholder thereof in behalf of herself and all other stockholders similarly situated . . . (t)hat Plaintiff has made no effort to secure action from the directors or all other shareholders of said corporation relating to the bringing of this action for the reason that said attempt or effort would have been futile"; that plaintiff is and was a joint owner of real estate which plaintiff leased to Oasis for $3,000.00 per month and Oasis in turn subleased to Shell Oil Co., Inc., for $3,000.00 per month at the same time; that at the termination of said sublease Hichew, as receiver for Oasis, negotiated a new sublease between Oasis and Shell which obligated Shell to pay only $2,000.00 a month which was considerably less than the prior lease; that Hichew and the law firm of which he was a partner represented Shell Oil Co., Inc., in an attorney-client relationship; that plaintiff negotiated a sale of the realty with Shell but the sale was never consummated because the other joint owner was unavailable; that with full knowledge of the prior offer by Shell to purchase the realty in question Hichew refused to enter into any kind of sale agreement among Shell, plaintiff and Oasis; and that as a result of the conflict of interest Oasis was damaged in the sum of $250,000.

Count II realleged "each and every allegation contained in Count I" and further alleged that Oasis was under a contractual obligation to pay plaintiff and the other joint owner of the realty $3,000.00 per month for rent under the lease between plaintiff and Oasis but "by virtue of Defendant's aforementioned conflict of interest and resultant damage no sums were paid to Plaintiff subsequent to January 1971, . . .." It alleged damages to plaintiff of $144,000.

Defendant filed a motion to dismiss plaintiff's petition alleging failure to state a claim upon which relief could be granted or in the alternative asking that plaintiff make her petition more definite and certain. Subsequently, new counsel were employed by defendant and they filed another motion to dismiss which set out four separate grounds for dismissal. These were (1) that the plaintiff's petition attempted to state a stockholder's derivative action but failed to comply with the requirements of Rule 52.09, V.A.M.R., (2) that a successor receiver was appointed and plaintiff was not the real party in interest, (3) that the lease with Shell Oil Company about which the petition complained had been presented as a proposal in the receivership case to which plaintiff was a party and that the lease had been approved by the court at that time, as a result of which the matter of the propriety of the lease was res judicata, and (4) that the case in which a receiver had been appointed was then pending and it concerned the same subject matter as in plaintiff's petition so that said petition ought to be dismissed. The latter ground was asserted pursuant to Rule 55.27(a)(10).

The transcript on appeal shows that on September 24, 1976, "motion of defendant to dismiss was called, heard and submitted" and that on September 27 it was sustained without prejudice. The order did not state the grounds for the decision or whether the court was acting on the first or second motion to dismiss. However, we treat the second motion to dismiss as an amendment of or supplement to the earlier motion to dismiss so that it is considered to include all of the grounds asserted in both motions. If any of said grounds are valid, the trial court's order dismissing the petition must be affirmed. McClellan v. Highland Sales & Investment Co., 514 S.W.2d 371, 374 (Mo.App.1974).

It is clear that Count I of the petition was an attempt by plaintiff to assert a stockholder's derivative action on behalf of the corporation. Said count failed to meet the requirements of Rule 52.09 because it did not "allege with particularity the efforts, if any, made by the plaintiff to obtain the action (she) desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for (her) failure to obtain the action or for not making the effort." It merely alleged that such demand would be "futile." A similar petition which alleged that a demand would be "fruitless" was held deficient in O'Maley v. ISC Industries, Inc., 519 S.W.2d 346, 349 (Mo.App.1975).

While the trial court did not specify the ground on which it was dismissing Count I without prejudice, it is apparent that it was justified on the basis of the assertion in the second motion that it did not comply with the requirements of Rule 52.09 for a stockholder's derivative action. We hold that Count I was not sufficient under Rule 52.09 and the court properly dismissed that count without prejudice. Thus, we need not address the other grounds asserted to justify dismissal of Count I.

Count II realleged all of Count I which would seem to indicate that it, too, was a stockholder's derivative action. However, Count II also alleged that Oasis was under a contractual obligation to pay plaintiff and the other joint owner of the realty (plaintiff's ex-husband) the sum of $3,000 per month as rental, that said rentals had not been paid, that this was the result of defendant's alleged conflict of interest and that plaintiff, as a result, had been damaged in the amount of $144,000. These allegations indicate an attempt to state a cause of action on behalf of plaintiff individually and we so treat it. Therefore, Rule 52.09 was not applicable to Count II. The issue we must resolve is whether for any of the other reasons asserted in defendant's motion, the court correctly dismissed Count II.

In considering this question, we note that in reaching its decision on defendant's motion to dismiss, the trial court was asked to and did take judicial notice of the contents of the circuit court's file in cause number 319,687, then pending in the Circuit Court of St. Louis County. ¹ Accordingly, in order to assist the court on appeal to review the trial court's action, the parties have stipulated that the record on appeal in this case shall include the transcript filed in cause numbers 36763 and 38524 in the ...