Stemley v. Downtown Medical Bldg., Inc.

• Decision Date: 13 December 1988
• Docket Number: No. 70287,70287
• Citation: 762 S.W.2d 43
• Parties: Orless STEMLEY, Plaintiff, v. DOWNTOWN MEDICAL BUILDING, INC., Defendant/Third Party Plaintiff/Appellant, v. Leonard L. SCHULER, Jr., et al., Third Party Defendants/Respondents.
• Court: Missouri Supreme Court

Page 43

762 S.W.2d 43

Orless STEMLEY, Plaintiff, v. DOWNTOWN MEDICAL BUILDING, INC., Defendant/Third Party Plaintiff/Appellant, v. Leonard L. SCHULER, Jr., et al., Third Party Defendants/Respondents.

No. 70287.

Supreme Court of Missouri En Banc.

Dec. 13, 1988.

Rehearing Denied Jan. 17, 1989.

Stephen D. Hoyne, St. Louis, for defendant/third party plaintiff/appellant.

Kevin P. Krueger, Kenneth W. Bean, St. Louis, for third party defendants/respondents.

RENDLEN, Judge.

From 1976 through April 1980 the Downtown Medical Building, Inc. (Downtown) contracted with General Elevator Engineering Co. (General), a Missouri corporation, to examine, maintain and repair the signal devices, enclosures, doors and interlocks of the elevator in its building at 819 Locust Street in St. Louis. ¹

On April 7, 1980, plaintiff Orless Stemley stepped through an open elevator door in the Downtown building and learned to her dismay, as she fell down the shaft, that the elevator was not in position at the floor she sought to board. At that time Leonard Schuler, Jack Wilkinson, Clifford Stebe, and Harold M. Schmich were employees of General and General carried an occurrence policy of liability insurance with Canadian Universal Insurance Company with limits of $500,000.00 and an excess policy of $3,000,000.00 with Stonewall Insurance Company.

Following the Stemley incident, employees of General spoke with employees of Downtown, photographs of the interlock system were taken, and a recorded statement of Clifford Stebe was obtained. In April 1981, General changed its name to Twelve Ten Corporation and subsequently the corporation was dissolved and a Certificate of Dissolution issued on August 18, 1981.

In February 1984, Stemley filed suit for her injuries, naming Twelve Ten Corporation as defendant. Twelve Ten, alleging its dissolution, moved to dismiss, and on August 21st the action was dismissed with prejudice. Stemley appealed to the Eastern District Court of Appeals, where, on April 16, 1985, the dismissal order of the circuit court was affirmed. This occurred more than five years following Stemley's accident and three years, eight months after the dissolution of Twelve Ten Corporation. In the meantime, Stemley brought the current action against Downtown on April 5, 1985, two short days before the five-year statute of limitations ran. On May 18, 1987, Downtown filed its third party petition against Jack W. Wilkinson and Leonard L. Schuler as statutory trustees of Twelve Ten and as individuals, and against Clifford C. Stebe and Harold M. Schmich as individuals; judgment is also sought against a defendant ad litem to be appointed by the court. Count I seeks an equitable decree against Wilkinson, Schuler, and Twelve Ten, setting aside the dissolution of Twelve Ten on grounds that it was procured through misrepresentation. Count II prays appointment of Jack Wilkinson as defendant ad litem for Twelve Ten pursuant to § 537.020, RSMo 1986 on the showing that the certificate of dissolution established the death of the corporation. Downtown alleges it is entitled to indemnification and contribution by Twelve Ten from the proceeds of insurance which it had procured. Count III also seeks indemnity and contribution against Wilkinson and Schuler, alleging that if § 351.565 is applied and a defendant ad litem not appointed, Downtown will be denied due process and equal protection of the laws, for such application of the statute would create an impermissibly discriminatory distinction between corporate citizens and natural citizens without a rational basis. The trial court appointed Jack Wilkinson as defendant ad litem but thereafter on February 11, 1988, dismissed Counts I, II, and III as to Wilkinson and Schuler. ² Wilkinson and Schuler's motion to dismiss Count IV, which sought noncontractual indemnity and contribution against all of the third party defendants based on their liability as individuals, was denied, and the presence of that count has not been challenged on appeal.

In light of recent changes to Rule 74.01(b), effective the beginning of this year, our jurisdiction is a threshold issue. The rule states that:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may enter a judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of such determination, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added.) The trial court's order failed to expressly state "that there is no just reason for delay," as commanded by the current version of Rule 74.01(b), but did state that it was "a final order and judgment for purposes of appeal," which sufficed under the rule previously in effect. Speck v. Union Electric Co., 731 S.W.2d 16, 20-22 (Mo. banc 1987). Though trial judges are cautioned to not only determine the necessary facts but also to employ the express language of Rule 74.01(b) in such cases, we see no necessity in remanding this cause for inclusion of the precise language of the rule, for it is plain that the trial court intended the order to be appealable and the record bespeaks the fact that "there is no just reason for delay." ³ Because this action was pending when the amendment to Rule 74.01 took effect, it might be argued under Rule 41.06 that the previous procedure should govern so as not to work an injustice, but on the facts here, we deem the spirit of the amended rule is satisfied and the trial court's order was appealable. In this we are mindful that our rules are "construed to secure the just, speedy and inexpensive determination of every action." Rule 41.03.

As to subject matter jurisdiction, we have original appellate jurisdiction in cases involving the validity of a statute, Mo. Const. art. V, § 3, and as appellants challenge the constitutionality of § 351.565 as applied to them the cause falls within the ambit of this Court's jurisdiction. State ex rel. Union Electric C. v. Public Service Commission, 687 S.W.2d 162, 164-65 (Mo. banc 1985). "If our appellate jurisdiction properly attaches jurisdiction is not lost if the case is decided without reaching the constitutional issues, because our jurisdiction extends to all issues in the case." Id. at 165.

Turning to the merits, we hold that § 351.565 does not bar the third party petition. This statute, in pertinent part, provides:

The dissolution of a corporation ... by the issuance of a certificate of dissolution by the secretary of state ... shall not take away or impair any remedy available to or against such corporation, its directors or shareholders, for any right or claim existing, or any liability incurred, prior to such dissolution if suit or other proceeding thereon is commenced within two years after the filing of the articles of dissolution in the office of the secretary of state, or at any time prior to the filing of articles of liquidation in the office of the secretary of state, whichever date is later....

In State ex rel. General Electric Co. v. Gaertner, 666 S.W.2d 764 (Mo. banc 1984), a majority of this Court established "the general rule that a third party suit for contribution from a joint tortfeasor can be filed during the pendency of the underlying suit, irrespective of the statute of limitations applicable to the underlying tort claim." Rowland v. Skaggs Companies, Inc., 666 S.W.2d 770, 772 (Mo. banc 1984). Though § 351.565 is technically a survival statute rather than a statute of limitations, State ex rel. Eagle Oil Co. v. Tillman, 712 S.W.2d 20, 23 (Mo.App.1986), ⁴ it has the practical effect of limiting to two years the time in which the action may be brought, id. at 22, and we find the principle of General Electric applicable here. The third party action could not possibly have been instituted within the statutory period because the third party plaintiff was not made a defendant until after the expiration of the two-year period. As voiced by the majority in General Electric, the third party petition should not be governed by the time limitations placed on the original plaintiff's claim, 666 S.W.2d at 767, and the majority there noted that Rule 52.11 provides a third party petition may be brought "[a]t any time after commencement" of the original action, or in other words at any time during the pendency of the action. Id. at 766. Our holding is thus consistent with and furthers the purpose of the rule; accordingly, we need not reach the constitutional question posed in Count III of the third party petition.

We also hold that §§ 537.020 and 537.021 are applicable and the trial court's dismissal of Count II must therefore be reversed. § 537.020.1 provides:

Causes of action for personal injuries, other than those resulting in death, whether such injuries be to the health or to the person of the injured party, shall not abate by reason of his death, nor by reason of the death of the person against whom such cause of action shall have accrued; but in case of the death of either or both such parties, such cause of action...