Welch v. Continental Placement, Inc.
| Decision Date | 12 January 1982 |
| Docket Number | No. WD,WD |
| Citation | 627 S.W.2d 319 |
| Parties | Evelyn L. WELCH, Appellant, v. CONTINENTAL PLACEMENT, INC., Delores Sawyer and M. B. Sawyer, Respondents. 31979. |
| Court | Missouri Court of Appeals |
James Bartimus, Kansas City, for appellant.
Joe W. Coleman, Lawrence J. Skidmore, Kansas City, for respondent.
Before TURNAGE, P. J., and PRITCHARD and CLARK, JJ.
In a complex matrix of initial and amended pleadings and fragmented disposition of multiple claims, cross claims and counterclaims, plaintiff appeals from a judgment which dismissed Counts I and II of her amended petition on the ground that the action there asserted was barred by the statute of limitations. Affirmed.
This case originated in a petition filed January 19, 1972, and arose out of the sale of plaintiff's stock in Evelyn Welch Associates, Inc. to defendants. An earlier appeal, dismissed for want of a final judgment, is reported at 583 S.W.2d 251 (Mo.App.1979) and reference is made to that opinion for a summary of the pertinent facts. Designation of the partial summary judgment as a final judgment for purposes of appeal pursuant to Rule 81.06 has remedied the previous deficiency and authorizes consideration of the cause on the merits of the issue presented.
In a single point, plaintiff contends the trial court erred in sustaining the defense of the statute of limitations because the challenged pleading should be deemed to relate back to an earlier pleading filed before the limitation on the claim expired. A summary of the content of relevant portions of plaintiff's various pleadings is necessary to understand the question posed.
Plaintiff's 1972 petition in Counts I and II sought actual and punitive damages from defendants on grounds of fraud and deceit. In particular, plaintiff claimed that defendants induced plaintiff to contract for the sale of stock in plaintiff's corporation by representing that defendants would work to preserve and expand the business of plaintiff's corporation when in fact defendants intended to and did transfer the assets of that business to another corporation controlled by them. Added counts sought equitable relief on plaintiff's own behalf and derivatively for her corporation by way of an accounting, for an injunction, for restoration of assets taken and for appointment of a receiver. 1
In 1975, plaintiff filed her first amended petition in which the earlier allegations of fraud and deceit were omitted in favor of allegations that the written agreement for purchase of plaintiff's stock in Evelyn Welch Associates, Inc. did not set out the terms of agreement intended by the parties. The sole claim for relief in the first amended petition was for reformation of the contract to conform to the actual agreement.
Trial commenced in 1977 on the first amended petition which then presented for adjudication only the claim for reformation of the contract. Before submission, plaintiff sought and was granted leave to file a second amended petition, the content of which revived the original Counts I and II of the 1972 petition and restated as Count III the claim for reformation as asserted in the 1975 first amended petition. The trial then proceeded to conclusion on the Count III claim only and judgment was entered denying reformation. Defendants thereafter filed their motion for summary judgment on Counts I and II remaining and the order thereon sustaining the motion is the judgment here appealed.
Plaintiff does not dispute and it appears without question that the limitation upon the action for fraud and deceit set out in Counts I and II of the 1972 and 1977 petitions is that specified in § 516.120(5), RSMo 1978 and is five years. It is also undisputed that the acts complained of occurred in 1971 and if the claim is regarded as first advanced in the 1977 petition, it is barred by the five-year statute. Plaintiff, however, relies on Rule 55.33(c) and contends that the second amended petition relates back to the date of the original pleading in 1972 and thus avoids the bar of the statute.
Plaintiff misconceives the application of the rule. As this court recently observed in Briggs v. Cohen, 603 S.W.2d 20 (Mo.App.1980), the function of an amendment to a petition is to cure...
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