Williams v. Blumer

• Decision Date: 22 November 1988
• Docket Number: No. WD,WD
• Citation: 763 S.W.2d 242
• Parties: J.D. WILLIAMS, Plaintiff-Appellant, v. Thaine Q. BLUMER, Defendant-Respondent, and Theodore Collier, Defendant. 40671.
• Court: Missouri Court of Appeals

Page 242

763 S.W.2d 242

J.D. WILLIAMS, Plaintiff-Appellant, v. Thaine Q. BLUMER, Defendant-Respondent and Theodore Collier, Defendant.

No. WD 40671.

Missouri Court of Appeals,

Western District.

Nov. 22, 1988.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 27, 1988.

Application to Transfer Denied

Feb. 14, 1989.

Robert L. Shirkey, James M. Sloan, Kansas City, for plaintiff-appellant.

William A. Lynch, Peter T. Niosi, Kansas City, for defendant-respondent.

Before LOWENSTEIN, P.J., and TURNAGE and COVINGTON, JJ.

LOWENSTEIN, Presiding Judge.

The plaintiff Williams brought this suit against Collier and his attorney Blumer claiming the conversion of a special trust self-insurance fund in which Williams claimed an interest. The plaintiff also contended that the defendants' taking of the funds also gave rise to a cause for: tortious interference with plaintiff's business and outrageous conduct that amounted to wrongful garnishment. Williams obtained a default judgment against Collier who is not a party to this appeal.

This controversy has spawned two appeals to this court. Williams was the majority stockholder in Consolidated Cab Co., Inc. Collier was an employee of that company. Throughout Collier's employment money was deducted from his wages as contribution to a group health insurance plan. While Collier was working for Consolidated he became ill and required hospitalization. It was determined his health insurance had lapsed because of nonpayment of premiums. Collier sued Williams and Consolidated for fraud and obtained a default judgment against both in January, 1974, in the sum of $37,546.00.

Prior to the time of that judgment, Williams had $20,000.00 deposited as a special trust fund in the then Traders National Bank in accordance with the Taxicab Ordinance of Kansas City, Missouri. Under § 33.67 of the Ordinances this money was to be used to pay any damages which might result from the negligent operation of Consolidated's taxi cabs. In essence, the city ordinance allowed taxi companies to self-insure but they had to provide this fund to pay damages.

In order to satisfy the default judgment against Williams and Consolidated, Blumer, as attorney for Collier, initiated a garnishment proceeding in an attempt to gain access to the funds held by the bank. Williams, and the City of Kansas City, Missouri, as intervenor, asserted that the $20,000.00 self-insurance fund was not subject to the claim of a general creditor. The court ruled in favor of Collier and ordered that the money be paid into the court's registry. Williams and the city appealed that decision. Blumer applied to the circuit court for an order to disburse the funds held in the registry of the court. While that appeal was pending, and without notice to the adverse parties, the court ordered the funds paid to Blumer and his client. On that same date, Blumer obtained a check from the court payable jointly to himself and Collier for the sum of $19,289.42. This court later issued an opinion holding that the deposited funds were restricted for a special purpose and not subject to garnishment by a general creditor. The cause was reversed with directions to the trial court to enter judgment in favor of Williams and the city. On December 19, 1979, the mandate issued on that decision. That case, referred to as "Collier I" is reported as Collier v. Consolidated Cab Co., Inc., 591 S.W.2d 391, 404 (Mo.App.1979).

After Collier I, Williams (not the cab company) and the city filed for an "Order of Restitution" to get the money back. The trial court granted that order on September 3, 1980, and as amended on October 2, 1980. Collier and Blumer were directed to repay the money, plus interest to the court administrator. This prompted an appeal prosecuted by Blumer but not by his client Collier, Collier v. Williams, 625 S.W.2d 634, 636 (Mo.App.1981) ("Collier II").

The Collier II ruling dismissed that appeal. Judge Clark, writing for the court, was critical of the record on appeal. Exception was taken to the fact that many important decisions in the restitution action were done ex parte. Collier II noted the trial court should not have released the funds to Blumer, because it had notice that an appeal had been perfected. The September 3, 1980 order, entered without notice or hearing, merely compounded the error. That order, the opinion recited, failed to recognize that Blumer was not a party to the case and had no notice of the proceeding. This led to the further question of standing a nonparty, Blumer, to prosecute the appeal. 625 S.W.2d at 637. Additionally, Collier II noted the failure of the order to provide for the interests of Kansas City and the court's administrator. The order was held to be interlocutory and not subject to appeal, because the record was incomplete and further proceedings were required. Collier II, supra at 637.

It is out of this total morass that the present appeal emerges. The cast of characters involved in this case now includes only Williams (the owner of the cab corporation) and Blumer (the attorney of the driver who obtained a default judgment in 1974). What, if anything, transpired as to the restitution action after the dismissal of the appeal in Collier II is not known. What is known is that Williams filed the petition in this suit on December 19, 1984.

The trial court granted a motion for summary judgment in favor of Blumer. The court held that the statute of limitations had run on all four claims. Additionally, the court noted that the motion for summary judgment on the outrageous conduct count was also appropriate because plaintiff failed to plead an essential element of that claim; namely, that a bodily injury resulted from the conduct. The court further concluded the conversion suit would not lie because the plaintiff was not entitled to possess the funds in dispute.

I.

The trial court's initial reason for granting summary judgment for Blumer on all counts of the petition (conversion, tortious interference, outrageous conduct and wrongful garnishment) was because the December 19, 1984 petition came after the applicable five year statute of limitations had run. A chronology of pertinent events is as follows:

January 31, 1978 Williams and Consolidated appeal ruling that the Traders account could satisfy Collier's judgment.

September 6, 1978 Letter from Kansas City taxi administrator to Williams to stop operating a taxi service because the $20,000.00 deposit was gone.

October 5, 1978 Circuit court authorizes Traders account now in registry of court to be disbursed to Collier and Blumer, and money is withdrawn.

December 3, 1979 Opinion in Collier I holding garnishment of Traders account was in error.

December 19, 1979 Mandate issued in Collier I.

September-October 1980 Circuit court order of restitution directed to Collier and Blumer to repay the money to the court administrator.

December 19, 1984 The petition in the present suit is filed.

The sole issue on the first point of appeal is as follows: when does the clock begin to run, for statute of limitations purposes, to a party who suffers an adverse ruling in a court tried case, but who is successful on appeal and the appellate court decision creates a cause of action for that party?

The trial court in its ruling for Blumer relied on language from D.E.J. v. G.H.B., 631 S.W.2d 113 (Mo.App.1982), and State ex rel. Kansas City v. Public Service Commission, 228 S.W.2d 738, 741 (Mo.1950), both to the effect the appeals opinion and not the issuance of the mandate operates as the judgment of the court. If, as Williams urges, the date of the mandate controls, his petition was filed, as calculated under Rule 44.01(a), on the last day possible. The pertinent holding in D.E.J., supra, involved the timeliness of application for a change of judge under Rule 51.05. That case was a parental rights termination judgment that came for review to this court. It was reversed and remanded because of a lack of factual findings by the trial court under the statute. The opinion stated the remand was for the recitation of such findings--not for a new trial. On remand the mother sought a change of judge on the theory the mandate stated only that the judgment was reversed and was, "remanded with directions for further proceedings in conformity with the opinion ..." D.E.J., 631 S.W.2d at 117-18. This court held the mother had not received a new trial. Instead she partook in a proceeding to make necessary determinations absent earlier, and a motion for change of judge was improper. Within that context this court used the following language relied on by the trial court on the limitations issue in the case at bar:

The mandate, however, is not the judgment; the appeals opinion is the judgment. Argeropoulos v. Kansas City Rys. Co., 201 Mo.App. 287, 212 S.W. 369, 372[1-3] (1919). The mandate merely constitutes the official communication of the appellate judgment to the subordinate court. McClellan v. Highland Sales and Investment Co., 514 S.W.2d 371, 374[1-4] (Mo.App.1974).

D.E.J., 631 S.W.2d at 117. Accord Moore v. Beck, 730 S.W.2d 538, 540 (Mo.banc 1987).

State ex rel Kansas City, supra, 228 S.W.2d 738, contains similar language to that of D.E.J. (mandate serves to communicate or notify the trial court of a judgment), but that case is also inapplicable to the issue here. The issue in that case involved a second order of the Public Service Commission following an appeal to the circuit court. Id. 739-41.

A traditional point for commencing the time to start running on a cause of action is notice or knowledge of the existence of a claim; which would make the date of the opinion the logical date to start the time running on the statute of limitations. The problem with using the opinion date as a milestone is that the opinion is not necessarily the last significant event in the appellate process. The opinion can be modified between the time of handdown and the issuing of the...