Shockley v. Sander, 50903

• Decision Date: 25 November 1986
• Docket Number: No. 50903,50903
• Citation: 720 S.W.2d 418
• Parties: Helen SHOCKLEY, Successor-Appellant, Frank Shockley, Plaintiff, v. Harry SANDER, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 418

720 S.W.2d 418

Helen SHOCKLEY, Successor-Appellant, Frank Shockley, Plaintiff, v. Harry SANDER, et al., Defendants-Respondents.

No. 50903.

Missouri Court of Appeals,

Eastern District,

Division One.

Nov. 25, 1986.

Ted F. Frapolli, St. Louis, for successor-appellant.

Mark E. Goodman, Clayton, for defendants-respondents.

KELLY, Presiding Judge.

Frank Shockley, d/b/a Aalco Barney Company, appealed the judgment dismissing his five count petition against Harry A. Sander and Middlewest Realty, Inc., respondents herein. ¹ The petition was dismissed upon motion of respondents asserting that the statute of limitations barred Shockley's claim. The trial court determined that Shockley's suit was not timely filed within the five year period required under § 516.120 RSMo 1978, the applicable statute of limitations. The court held that the untimely filing was not excused because Shockley failed to prove respondents' concealment within the meaning of § 516.280 RSMo 1978 which precludes the tolling of the statute of limitations "[i]f any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action." We affirm.

In October 1980, Shockley, a plumber, sued Harry A. Sander Realty Company for unpaid plumbing services he had rendered. Although Harry A. Sander, the registered agent for Harry A. Sander Realty Company, was served and filed an answer, Shockley obtained a default judgment on September 1, 1981, for $37,637.14 against the realty company when its pleadings were struck in response to Shockley's motion for sanctions for its failure to answer his interrogatories. This judgment remains unsatisfied, after an execution issued against Harry Sander Realty Company on October 13, 1981, was returned nulla bona.

Shockley then filed another lawsuit October 1, 1981, naming as defendants both Harry A. Sander and Middlewest Realty, Inc., respondents herein, alleging that the Harry A. Sander Realty Company was a subterfuge and alter ego of the two named defendants, and asked that Shockley be allowed to pierce the corporate veil of Harry A. Sander Realty Company so that defendants would be liable to Shockley as the undisclosed principals of Harry A. Sander Realty Company. Defendants' answer alleged the statute of limitations barred Shockley's action because it was not brought within five years from the date Shockley had performed any work. Shockley acknowledged that the action was not brought within a five year period but replied that § 516.280 RSMo 1978 creates an exception where defendants concealed themselves and by their improper acts prevented the commencement of the action against them.

A hearing was held on October 22, 1985, for Shockley to prove concealment or other improper acts by Harry A. Sander and Middlewest Realty, Inc. Shockley's evidence included the circuit court file from the earlier default judgment case, various exhibits, and direct testimony by Shockley, his wife, and Sander. The numerous exhibits reflected work orders issued to Shockley, all from "Harry Sander Realty Company" requesting plumbing work, correspondence from various municipal authorities addressed to Harry Sander Realty concerning plumbing that was not in code compliance, and an exhibit listing business dealings between Harry Sander Realty Company and Shockley from mid 1974 through August 17, 1976.

Shockley testified that all documents and work orders he received were on the letterhead of Harry Sander Realty Company or were documents which designated Harry Sander Realty Company as the responsible entity. He further testified that he had never been told he was working for H.A.S. Investments, Inc., the predecessor corporation of respondent Middlewest Realty, Inc. and the apparent property owner of the locations where Shockley had performed his plumbing services; that he had never heard of H.A.S. Investments, Inc. during his years of business with Harry Sander Realty Company; and that he had never received any documents with the names of H.A.S. Investments, Inc. or Middlewest Realty, Inc. A crucial aspect of his testimony, however, was his admission on cross-examination that he supposed he saw checks from H.A.S. Investments, Inc., but that he did not know of the existence of H.A.S. Investments, Inc. prior to initiation of the first lawsuit on October 6, 1980. He added that "any checks from H.A.S. Investments, Inc. would have gone to his bookkeeper (his wife), that he did not handle the checks, and he would probably not see them."

Shockley's wife merely corroborated his testimony that she, not Shockley, handled the checks and payments for the services involved between Harry Sander Realty Company and Shockley.

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...