Shockley v. Harry Sander Realty Co., Inc., No. 54634
| Court | Missouri Court of Appeals |
| Writing for the Court | CARL R. GAERTNER; PUDLOWSKI, C.J., and CRANDALL |
| Citation | 771 S.W.2d 922 |
| Parties | Helena SHOCKLEY, Successor for Frank W. Shockley, d/b/a Aalco- Barney Company, Appellant-Plaintiff, v. HARRY SANDER REALTY COMPANY, INC., Harry Sander & Middlewest Realty, Inc., Respondents-Defendants. |
| Decision Date | 06 June 1989 |
| Docket Number | No. 54634 |
Page 922
Frank W. Shockley, d/b/a Aalco-
Barney Company, Appellant-Plaintiff,
v.
HARRY SANDER REALTY COMPANY, INC., Harry Sander & Middlewest
Realty, Inc., Respondents-Defendants.
Eastern District,
Division Five.
Page 923
Ted F. Frapolli, St. Louis, for appellant-plaintiff.
Mark E. Goodman, Clayton, for respondents-defendants.
CARL R. GAERTNER, Judge.
The origin of this litigation was a lawsuit filed by Frank W. Shockley against Harry A. Sander Realty Company, a corporation, seeking to recover $25,565.50 for plumbing services. On September 1, 1981 a judgment was entered against Harry A. Sander Realty Company for the full amount of the claim plus interest in the amount of $12,071.64, a total judgment of $37,637.14. After an execution was returned nulla bona Shockley filed a second lawsuit against Harry A. Sander individually and Middlewest Realty, Inc., (Middlewest) to recover for the value of his plumbing services from these defendants. He alleged in that action Harry A. Sander Realty Company was a subterfuge and alter ego of the two named defendants. Because that action was filed more than five years after the performance of the services, it was dismissed as barred by the statute of limitations. We affirmed that dismissal. Shockley v. Sander, 720 S.W.2d 418 (Mo.App.1986) 1. In that opinion, authored by the Honorable John J. Kelly, the evidence regarding the relationship between Sander, Middlewest Realty (and its predecessor corporation H.A.S. Investments, Inc.) and Harry A. Sander Realty Company is set forth as follows:
Shockley also called Harry A. Sander as a witness. Sander testified that he had no work orders or documents sent to Shockley that had a Middlewest Realty or H.A.S. Investments, Inc. letterhead on them and that he had never told Shockley that Shockley was doing business with H.A.S. Investments, Inc. He stated that although all memoranda for services to be rendered were communicated to Shockley on Harry Sander Realty Company letterhead, the requests were actually issued by H.A.S. Investments, Inc. Further, H.A.S. Investments, Inc. paid for all memos, letterheads and supplies of Harry Sander Realty Company and Middlewest Realty, Inc., H.A.S. Investments, Inc.'s successor corporation, paid the franchise tax for Harry Sander Realty Company. While Harry Sander Realty Company had a telephone listing, it never maintained a bank account, never had any employees, never maintained any assets to offset its debts, and had never done any business. Sander concluded his testimony by stating that payments made to Shockley for plumbing service were issued on checks by H.A.S. Investments, Inc. These checks, marked as exhibits, were never received into evidence. Id. at 420.
We held that where one fraudulently conceals one's identity as defendant, rather than concealing the existence of the cause of action itself, the statute of limitations is not tolled, no matter how "dishonorable or distasteful we find the unsavory business practices engaged in by respondents" and regardless of "the procedural manipulations engaged in by defendant to thwart discovery of the proper defendant". Id. Judge Kelly concluded:
Page 924
While Shockley's recourse against the proper party defendants is barred by the statute of limitations in this separate legal action, he may have recourse by way of a creditor's bill, a rarely used but flexible equitable remedy, against these defendants to enforce execution of his judgment in the original action. Id. at 421.
Pursuant to this advice, plaintiff filed a "Motion for Creditor's Bill," in the original action, naming Sander and Middlewest as "garnishees". In this motion plaintiff alleged, inter alia, that Harry Sander Realty Company was a mere sham and a device created to fraudulently...
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In re Broadview Lumber Co., Inc., Bankruptcy No. 91-30593. Adv. No. 93-3018.
...v. Tuckwiller, 413 S.W.2d 274 (Mo.1967); Godwin v. Graham, 360 Mo. 418, 228 S.W.2d 789, 795 (1950); Shockley v. Harry Sander Realty Co., 771 S.W.2d 922, 924 (Mo.Ct.App.1989); Farmer's New World Life Ins. Co., Inc. v. Jolley, 747 S.W.2d 704, 705 (Mo.Ct.App.1988); Stanovsky v. Group Enterpris......
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Commonwealth Land Title Ins. Co. v. Miceli, No. ED 101473
...on the existence of a prior judgment at law, a creditor's bill is a distinct claim in equity. See Shockley v. Harry Sander Realty Co., 771 S.W.2d 922, 924, 925 (Mo. App. E.D. 1989) ; see also 21 Am. Jur. 2d Creditors' Bills section 2 (2015) ("Creditors' bills ... [are] independent acti......
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Scarlett v. Barnes, No. 90-0381-CV-W-3.
...of legal process. Missouri courts have long recognized the equitable remedy of the creditor's bill. Shockley v. Harry Sander Realty Co., 771 S.W.2d 922, 924-25 (Mo.Ct.App.1989). A creditor's bill is a remedy which is available when "neither execution nor garnishment is effective to rea......
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Carpenters' Dist. Council of Greater St. Louis v. F.G. Lancia Custom Woodworking, LLC, No. 4:06-CV-1673 CAS
...be reached by traditional means of execution on a judgment established in a suit at law.” Shockley v. Harry Sander Realty Co., Inc. , 771 S.W.2d 922 (Mo.Ct.App.1989). Prerequisites to the issuance of a creditor's bill are the “existence of a judgment, the issuance of an execution against as......
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In re Broadview Lumber Co., Inc., Bankruptcy No. 91-30593. Adv. No. 93-3018.
...v. Tuckwiller, 413 S.W.2d 274 (Mo.1967); Godwin v. Graham, 360 Mo. 418, 228 S.W.2d 789, 795 (1950); Shockley v. Harry Sander Realty Co., 771 S.W.2d 922, 924 (Mo.Ct.App.1989); Farmer's New World Life Ins. Co., Inc. v. Jolley, 747 S.W.2d 704, 705 (Mo.Ct.App.1988); Stanovsky v. Group Enterpris......
-
Commonwealth Land Title Ins. Co. v. Miceli, No. ED 101473
...on the existence of a prior judgment at law, a creditor's bill is a distinct claim in equity. See Shockley v. Harry Sander Realty Co., 771 S.W.2d 922, 924, 925 (Mo. App. E.D. 1989) ; see also 21 Am. Jur. 2d Creditors' Bills section 2 (2015) ("Creditors' bills ... [are] independent acti......
-
Scarlett v. Barnes, No. 90-0381-CV-W-3.
...of legal process. Missouri courts have long recognized the equitable remedy of the creditor's bill. Shockley v. Harry Sander Realty Co., 771 S.W.2d 922, 924-25 (Mo.Ct.App.1989). A creditor's bill is a remedy which is available when "neither execution nor garnishment is effective to rea......
-
Carpenters' Dist. Council of Greater St. Louis v. F.G. Lancia Custom Woodworking, LLC, No. 4:06-CV-1673 CAS
...be reached by traditional means of execution on a judgment established in a suit at law.” Shockley v. Harry Sander Realty Co., Inc. , 771 S.W.2d 922 (Mo.Ct.App.1989). Prerequisites to the issuance of a creditor's bill are the “existence of a judgment, the issuance of an execution against as......