Williams v. Malone, No. 11062

• Court: Missouri Court of Appeals
• Writing for the Court: MAUS; HOGAN; BILLINGS
• Citation: 592 S.W.2d 879
• Docket Number: No. 11062
• Decision Date: 08 January 1980
• Parties: Leah Lemoyne WILLIAMS, Plaintiff-Appellant, v. George Mike MALONE, Defendant-Respondent.

Page 879

592 S.W.2d 879 Leah Lemoyne WILLIAMS, Plaintiff-Appellant,
v.
George Mike MALONE, Defendant-Respondent. No. 11062. Missouri Court of Appeals, Southern District, Division Two. Jan. 8, 1980.

Douglas M. Hamilton, Joplin, for plaintiff-appellant.

Max H. Glover, Glover, Tiede & Brown, Webb City, for defendant-respondent.

MAUS, Judge.

This is a case of first impression in Missouri. The question presented is whether or not a general statute of limitations § 516.120(5) RSMo, V.A.M.S., which would otherwise be tolled under § 516.200 because of the defendant's absence is not tolled because the defendant was subject to personal service in another state under the long-arm statute, § 506.500.

By her petition the plaintiff seeks to recover actual and punitive damages by reason of allegedly fraudulent sales of corporate stock on December 11, 1967, December 26, 1967 and January 3, 1968. The petition was filed August 20, 1976. The answer denied the fraud and affirmatively alleged the action was barred by § 516.120(5). There was no reply. The defendant filed a motion for judgment on the pleadings. The deposition of the plaintiff was taken and filed. The circuit court thereafter sustained the motion and dismissed the action.

Page 880

It seems the motion was not treated as a motion for judgment on the pleadings. The circuit court could have considered the question of whether or not the plaintiff was required to affirmatively plead an avoidance of the prima facie bar of the five year period of limitations. See Kerber v. Rowe, 348 Mo. 1125, 156 S.W.2d 925 (1941); Foster v. Petree, 347 Mo. 992, 149 S.W.2d 851 (1941); Siler v. Kessinger, 149 S.W.2d 890 (Mo.App.1941); Bennett v. Metropolis Pub. Co., 148 S.W.2d 109 (Mo.App.1941). However, the transcript includes the plaintiff's deposition. The statement of facts in the plaintiff's brief, adopted by the defendant, includes facts established by the deposition. The cause has been briefed and argued as if the circuit court sustained the defendant's motion for summary judgment. The appeal will be considered on that basis. Anderson v. Dyer, 456 S.W.2d 808 (Mo.App.1970). Taken from the transcript and briefs the following is a summary of the facts established for the consideration of the motion.

The allegedly fraudulent sales were made in Missouri on December 11 and 26, 1967, and January 3, 1968. In the summer of 1968 the defendant moved and became a resident of Mississippi. From the summer of 1968 on the plaintiff knew the defendant's residence. Later in 1968 the plaintiff learned of the alleged fraud and first consulted an attorney. The petition was filed August 20, 1976. Service was had by personal service on the defendant in Mississippi under § 506.500. The plaintiff's sole point on appeal is that the action was improperly dismissed because the applicable statute of limitations, § 516.120(5), was tolled by § 516.200 in spite of the fact the Missouri court could acquire jurisdiction in personam of the defendant under § 506.500.

For reference § 516.120(5) provides: "Within five years: . . . (5) An action for relief on the ground of fraud, the cause of action in such case to be deemed not to have accrued until the discovery by the aggrieved party, at any time within ten years, of the facts constituting the fraud." Section 516.200 provides: "If at any time when any cause of action herein specified accrues against any person who is a resident of this state, and he is absent therefrom, such action may be commenced within the times herein respectively limited, after the return of such person into the state; and if, after such cause of action shall have accrued, such person depart from and reside out of this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action."

Sections 506.500 to 506.520, as implemented by V.A.M.R. Civil Rules 54.06, 54.14, and 54.20, in general provide that by reason of specified acts or conduct of a defendant, a Missouri court can by out-of-state personal service acquire in personam jurisdiction of that defendant in regard to causes of action arising from such acts or conduct. The plaintiff concedes that method of service was available to her in regard to the pleaded causes of action.

Before reaching the principal question, an alternative contention of the defendant must be considered. He contends that under § 516.120(5) a cause of action for fraud shall be "deemed not to have accrued" until the discovery of the facts constituting the fraud. Therefore, since the defendant left Missouri before the facts were discovered, he left before the cause of action accrued and § 516.200 is not applicable. Obviously, it would be ironic if the statute was tolled against an individual who remained in and was subject to process in Missouri after his fraud was discovered and then left, but was not tolled against a defendant who managed to depart before his fraud was discovered. Such a result is not required. It is for the purpose of determining when the statute of limitations, § 516.120(5), starts to run a cause of action for fraud is deemed to accrue when the facts are...