ALAN F. DECKER, ) d/b/a DECKER TRANSPORTATION ) SERVICES, ) ) Plaintiff-Respondent, ) ) v. ) No. SD37226 ) Filed: July 6, 2022 TIMOTHY T. COLLINS, ) d/b/a COLLINS HEAVY HAUL, ) ) Defendant-Appellant.[1] )
APPEAL FROM THE CIRCUIT COURT OF OZARK COUNTY
Honorable Raymond M. Gross, Associate Circuit Judge
VACATED AND REMANDED WITH DIRECTIONS
Timothy Collins (Collins) was sued for breach of contract and related theories of
recovery by Alan Decker (Decker). The trial court entered judgment against Collins for
$7,507.50, plus costs. On appeal, Collins argues in his first point that Decker lacked
standing to bring the claim. After reviewing the petition, its attachments and other
undisputed facts, we agree. Because Decker lacked standing to bring this action and his
1 This case caption deviates from that used in the trial court’s judgment. Here, the business names of the parties have been corrected to reflect their proper identification in the initial petition. petition must be dismissed without prejudice, Collins’ quantum meruit counterclaim no
longer presents a justiciable controversy for the trial court to decide on the merits.
Therefore, the judgment against Collins is vacated. The cause is remanded with directions
to dismiss the petition, and Collins’ counterclaim, without prejudice.
Factual and Procedural Background
In July 2018, Decker filed suit as an individual, purportedly doing business as
“Decker Transportation Services[,]” against Collins. The petition named Collins, “an
individual, d/b/a Collins Heavy Haul,” as the defendant and had attached exhibits showing
Collins had registered that fictitious name of his business with the Missouri Secretary of
State. No such exhibits were attached showing that Decker had ever registered a sole
proprietorship conducting business in Missouri using the fictitious name of Decker
Transportation Services. The theories of recovery in the three-count petition were breach
of contract, suit on account, and account stated. The petition alleged that Collins was a
resident of Ozark County, Missouri, and that the cause of action accrued in that county.
Decker alleged that he and Collins entered into a shipping agreement “wherein [Decker]
hired [Collins] to ship equipment.”
Exhibit No. 1, which was attached to the petition and incorporated by reference,
was an agreement dated October 25, 2017, between Pacific Crane and Equipment (Pacific)
and Decker Transport Services, LLC (hereinafter referred to as Decker LLC). Decker LLC
agreed “to coordinate tear down, load out and delivery of [the] listed equipment[.]” Pacific
agreed to pay Decker LLC $52,720, of which $45,000 was to be paid to Collins for his
services. This agreement was signed by Decker on behalf of Decker LLC. There was
another agreement between “Decker Transportation Services [of] Medford, OR” and
Collins to tear down, load out, transport and deliver the three pieces of equipment, from
2 sites in Pennsylvania and Ohio to Pikeville, Kentucky. Collins signed this agreement, and
Decker did so for “Decker Transportation Services[.]”
Collins filed a counterclaim for quantum meruit. The counterclaim alleged, inter
alia, that: (1) Decker told Collins that all of the equipment was functioning, and Collins
relied on that statement to quote and contract to transport the equipment; (2) Collins learned
that portions of the equipment were not functional, which required additional time, parts
and labor, over and above the initial contracted amount; (3) Collins was not paid for the
additional time, parts and labor, despite making a demand for such payment; and (4)
Decker was unjustly enriched by retaining the unpaid, reasonable value of such work, parts
and labor.
At trial, Decker testified that he resided in Medford, Oregon. According to Decker,
he “own[ed] Decker Transportation Services, LLC” when the agreement with Collins was
made and at the time of trial. Decker stated that he entered into a business relationship
with Collins in October 2017. The contract between “Decker Transportation Services” and
Collins was admitted in evidence as Plaintiff’s Exhibit No. 1. In Collins’ testimony, he
also identified this exhibit as the agreement he signed. There was no evidence that Decker
had been assigned any contract rights belonging to Decker LLC. There also was no
evidence that Decker operated in Missouri as a sole proprietor under the name of Alan F.
Decker d/b/a Decker Transportation Services.
The trial court found in favor of Decker and entered judgment against Collins in
the amount of $7,507.50, plus costs. Collins appealed and requested oral argument.
Thereafter, Decker filed a pro se respondent’s brief. His brief contained a request
that oral argument be denied. He signed the request:
3 ALAN F DECKER DECKER TRANSPORT SERVICES, LLC 722 Halvorsen St. Medford, Or. 97501
Records from the Corporate Division of the Oregon Secretary of State’s Office
show that “Decker Transport Services, LLC” (Registry number 1203151-97) is an active,
domestic limited liability company in Oregon. Its principal place of business is located at
722 Halvorsen St., Medford, Oregon 97501. Alan F. Decker is listed as the registered
agent. Jordan J. Decker is the manager of Decker LLC.
This company was organized on March 31, 2016, with a perpetual duration. The
organizers and members were Jordan J. Decker and Aaron A. Decker. The Articles of
Organization stated that the LLC “will be member-managed by one or more members.”
Discussion and Decision
In Point 1, Collins contends Decker lacked standing to bring this claim. Collins
argues that Decker was not a party to the contract alleged in the petition. Collins also points
out there was no evidence Decker had been assigned any rights under the contract or had
ever operated as a sole proprietor under the name of Alan F. Decker d/b/a Decker
Transportation Services.
Because standing is required to give a court the authority to address substantive
issues, it is a threshold issue we must consider. See Byrne & Jones Enterprises, Inc. v.
Monroe City R-1 Sch. Dist., 493 S.W.3d 847, 851 (Mo. banc 2016); S.C. v. Juvenile
Officer, 474 S.W.3d 160, 163 (Mo. banc 2015); Foster v. Dunklin Cnty., 641 S.W.3d 421,
423 (Mo. App. 2022). Thus, we have a duty to determine whether Decker had standing
prior to addressing the substantive issues raised in Collins’ brief. See CACH, LLC v.
Askew, 358 S.W.3d 58, 61 (Mo. banc 2012). “Because standing relates to the court’s
4 authority to render a judgment, standing cannot be waived.” Eaton v. Doe, 563 S.W.3d
745, 747 (Mo. App. 2018); see also Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc
2002) (lack of standing cannot be waived). A challenge to standing may be raised at any
time, including sua sponte by an appellate court. See Aufenkamp v. Grabill, 112 S.W.3d
455, 458 (Mo. App. 2003). “A party’s standing to sue is a question of law that we review
de novo on appeal [and determine] on the basis of the petition, along with any other
undisputed facts.” Stander v.
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ALAN F. DECKER, ) d/b/a DECKER TRANSPORTATION ) SERVICES, ) ) Plaintiff-Respondent, ) ) v. ) No. SD37226 ) Filed: July 6, 2022 TIMOTHY T. COLLINS, ) d/b/a COLLINS HEAVY HAUL, ) ) Defendant-Appellant.[1] )
APPEAL FROM THE CIRCUIT COURT OF OZARK COUNTY
Honorable Raymond M. Gross, Associate Circuit Judge
VACATED AND REMANDED WITH DIRECTIONS
Timothy Collins (Collins) was sued for breach of contract and related theories of
recovery by Alan Decker (Decker). The trial court entered judgment against Collins for
$7,507.50, plus costs. On appeal, Collins argues in his first point that Decker lacked
standing to bring the claim. After reviewing the petition, its attachments and other
undisputed facts, we agree. Because Decker lacked standing to bring this action and his
1 This case caption deviates from that used in the trial court’s judgment. Here, the business names of the parties have been corrected to reflect their proper identification in the initial petition. petition must be dismissed without prejudice, Collins’ quantum meruit counterclaim no
longer presents a justiciable controversy for the trial court to decide on the merits.
Therefore, the judgment against Collins is vacated. The cause is remanded with directions
to dismiss the petition, and Collins’ counterclaim, without prejudice.
Factual and Procedural Background
In July 2018, Decker filed suit as an individual, purportedly doing business as
“Decker Transportation Services[,]” against Collins. The petition named Collins, “an
individual, d/b/a Collins Heavy Haul,” as the defendant and had attached exhibits showing
Collins had registered that fictitious name of his business with the Missouri Secretary of
State. No such exhibits were attached showing that Decker had ever registered a sole
proprietorship conducting business in Missouri using the fictitious name of Decker
Transportation Services. The theories of recovery in the three-count petition were breach
of contract, suit on account, and account stated. The petition alleged that Collins was a
resident of Ozark County, Missouri, and that the cause of action accrued in that county.
Decker alleged that he and Collins entered into a shipping agreement “wherein [Decker]
hired [Collins] to ship equipment.”
Exhibit No. 1, which was attached to the petition and incorporated by reference,
was an agreement dated October 25, 2017, between Pacific Crane and Equipment (Pacific)
and Decker Transport Services, LLC (hereinafter referred to as Decker LLC). Decker LLC
agreed “to coordinate tear down, load out and delivery of [the] listed equipment[.]” Pacific
agreed to pay Decker LLC $52,720, of which $45,000 was to be paid to Collins for his
services. This agreement was signed by Decker on behalf of Decker LLC. There was
another agreement between “Decker Transportation Services [of] Medford, OR” and
Collins to tear down, load out, transport and deliver the three pieces of equipment, from
2 sites in Pennsylvania and Ohio to Pikeville, Kentucky. Collins signed this agreement, and
Decker did so for “Decker Transportation Services[.]”
Collins filed a counterclaim for quantum meruit. The counterclaim alleged, inter
alia, that: (1) Decker told Collins that all of the equipment was functioning, and Collins
relied on that statement to quote and contract to transport the equipment; (2) Collins learned
that portions of the equipment were not functional, which required additional time, parts
and labor, over and above the initial contracted amount; (3) Collins was not paid for the
additional time, parts and labor, despite making a demand for such payment; and (4)
Decker was unjustly enriched by retaining the unpaid, reasonable value of such work, parts
and labor.
At trial, Decker testified that he resided in Medford, Oregon. According to Decker,
he “own[ed] Decker Transportation Services, LLC” when the agreement with Collins was
made and at the time of trial. Decker stated that he entered into a business relationship
with Collins in October 2017. The contract between “Decker Transportation Services” and
Collins was admitted in evidence as Plaintiff’s Exhibit No. 1. In Collins’ testimony, he
also identified this exhibit as the agreement he signed. There was no evidence that Decker
had been assigned any contract rights belonging to Decker LLC. There also was no
evidence that Decker operated in Missouri as a sole proprietor under the name of Alan F.
Decker d/b/a Decker Transportation Services.
The trial court found in favor of Decker and entered judgment against Collins in
the amount of $7,507.50, plus costs. Collins appealed and requested oral argument.
Thereafter, Decker filed a pro se respondent’s brief. His brief contained a request
that oral argument be denied. He signed the request:
3 ALAN F DECKER DECKER TRANSPORT SERVICES, LLC 722 Halvorsen St. Medford, Or. 97501
Records from the Corporate Division of the Oregon Secretary of State’s Office
show that “Decker Transport Services, LLC” (Registry number 1203151-97) is an active,
domestic limited liability company in Oregon. Its principal place of business is located at
722 Halvorsen St., Medford, Oregon 97501. Alan F. Decker is listed as the registered
agent. Jordan J. Decker is the manager of Decker LLC.
This company was organized on March 31, 2016, with a perpetual duration. The
organizers and members were Jordan J. Decker and Aaron A. Decker. The Articles of
Organization stated that the LLC “will be member-managed by one or more members.”
Discussion and Decision
In Point 1, Collins contends Decker lacked standing to bring this claim. Collins
argues that Decker was not a party to the contract alleged in the petition. Collins also points
out there was no evidence Decker had been assigned any rights under the contract or had
ever operated as a sole proprietor under the name of Alan F. Decker d/b/a Decker
Transportation Services.
Because standing is required to give a court the authority to address substantive
issues, it is a threshold issue we must consider. See Byrne & Jones Enterprises, Inc. v.
Monroe City R-1 Sch. Dist., 493 S.W.3d 847, 851 (Mo. banc 2016); S.C. v. Juvenile
Officer, 474 S.W.3d 160, 163 (Mo. banc 2015); Foster v. Dunklin Cnty., 641 S.W.3d 421,
423 (Mo. App. 2022). Thus, we have a duty to determine whether Decker had standing
prior to addressing the substantive issues raised in Collins’ brief. See CACH, LLC v.
Askew, 358 S.W.3d 58, 61 (Mo. banc 2012). “Because standing relates to the court’s
4 authority to render a judgment, standing cannot be waived.” Eaton v. Doe, 563 S.W.3d
745, 747 (Mo. App. 2018); see also Farmer v. Kinder, 89 S.W.3d 447, 451 (Mo. banc
2002) (lack of standing cannot be waived). A challenge to standing may be raised at any
time, including sua sponte by an appellate court. See Aufenkamp v. Grabill, 112 S.W.3d
455, 458 (Mo. App. 2003). “A party’s standing to sue is a question of law that we review
de novo on appeal [and determine] on the basis of the petition, along with any other
undisputed facts.” Stander v. Szabados, 407 S.W.3d 73, 78 (Mo. App. 2013).
Collins first argues that Decker was not a party to the contract that formed the basis
for theories of recovery pled in the petition. We agree. Pacific contracted with Decker
LLC to coordinate the tear down, load out and delivery of the listed equipment. Decker
signed that contract on behalf of Decker LLC. It is settled Missouri law that “an agent for
a disclosed principal is not a party to a contract[.]” State ex rel. William Ranni Associates,
Inc. v. Hartenbach, 742 S.W.2d 134, 140 (Mo. banc 1987); Hardcore Concrete, LLC v.
Fortner Ins. Servs., Inc., 220 S.W.3d 350, 355 (Mo. App. 2007). The undisputed facts
demonstrate that Decker LLC was, and is, an active Oregon limited liability company
managed by its members. They do not include Decker, who is only the registered agent
for Decker LLC. A party has standing when it has: (1) an interest in the subject matter of
the suit that gives it a right of recovery, if validated; or (2) a legally cognizable interest in
the subject matter and a threatened or actual injury. Empire Dist. Elec. Co. v. Coverdell,
484 S.W.3d 1, 19 (Mo. App. 2015); Cook v. Cook, 143 S.W.3d 709, 711 (Mo. App. 2004).
The agreement signed by Collins was between himself and “Decker Transportation
Services [of] Medford, OR.” The undisputed facts show that this is a reference to Decker
LLC, rather than Decker personally. The theories of recovery alleged in the petition all
arise out of the contract between Collins and Decker LLC. There was no proof of any
5 assignment of those contract rights to Decker personally. See, e.g., Portfolio Recovery
Assocs., LLC v. Schultz, 449 S.W.3d 427, 434 (Mo. App. 2014) (an attempt to recover on
an account owed to some other party requires proof of an assignment of the account).
Next, Collins notes that the lawsuit was brought by Decker doing business as
Decker Transportation Services. Collins argues that there was no evidence Decker had
ever operated in Missouri as a sole proprietor under that fictitious name. We agree. It is
unlawful for a person to transact business in Missouri using an unregistered fictitious name.
See § 417.200 RSMo (2016); Elnicki v. Caracci, 445 S.W.3d 59, 68 (Mo. App. 2014)
(§ 417.200 permits “individuals and entities to conduct business under a ‘fictitious name,’
commonly known as a ‘d/b/a’ or ‘doing business as’ designation”)2; see also Springfield
Television, Inc. v. Gary, 628 S.W.2d 398, 402 n.4 (Mo. App. 1982) (use of an unregistered
fictitious name violates § 417.200, but does not render void the business dealings of the
person or entity who nonetheless uses that name). The absence of any Missouri fictitious
name documents for Decker is especially telling since that same information was included
with respect to Collins’ business. The undisputed facts, on the other hand, show that
Decker LLC is an Oregon domestic limited liability company that did transact business in
Missouri using that corporate name. Thus, the petition filed by Decker as an individual
must be dismissed without prejudice because he lacked standing to assert the theories of
recovery contained therein. See Schweich v. Nixon, 408 S.W.3d 769, 779 (Mo. banc 2013)
(holding that lack of standing does not implicate a claim’s merits and that dismissal without
prejudice is appropriate); Foster, 641 S.W.3d at 424 (dismissal without prejudice is
required when a plaintiff lacks standing).
2 The basis for the attorney-fee ruling in Elnicki was overruled in Rallo v. Rallo, 477 S.W.3d 29 (Mo. App. 2015). 6 Our dismissal of Decker’s petition without prejudice requires us to next consider
whether the trial court still retains the authority to adjudicate Collins’ quantum meruit
counterclaim. Because no justiciable controversy remains before the trial court, we
conclude that the counterclaim also must be dismissed without prejudice.
Justiciability is a “prudential” rather than a jurisdictional doctrine. “A justiciable controversy exists where [1] the plaintiff has a legally protectable interest at stake, [2] a substantial controversy exists between parties with genuinely adverse interests, and [3] that controversy is ripe for judicial determination.” The first two elements of justiciability are encompassed jointly by the concept of “standing.”
Schweich, 408 S.W.3d at 773-74 (citations omitted); Chariton Grove Cemetery Ass’n v.
Love, 640 S.W.3d 776, 781 (Mo. App. 2022).
The second element mentioned above is missing here. The contract was between
Collins and Decker LLC. Decker signed on behalf of Decker LLC. As noted above, he
was not a party to the contract because he was an agent for a disclosed principal. See
Hartenbach, 742 S.W.2d at 140. As the agent for a disclosed principal, Decker was not
liable for nonperformance of the contract. Id. “Missouri courts, relying on the Restatement
(Second) of Agency, have held that an agent for a disclosed principal is not personally
liable for acts performed within the scope of the agent’s authority.” Murray-Kaplan v.
NEC Ins., Inc., 617 S.W.3d 485, 496 (Mo. App. 2021); see also Hardcore Concrete, 220
S.W.3d at 355.
The elements of a quasi-contract or quantum meruit theory of recovery are: (1) a
benefit conferred upon the defendant by the plaintiff; (2) appreciation by the defendant of
the fact of such benefit; (3) acceptance and retention by the defendant of that benefit under
circumstances which would make retention without payment inequitable. Almat Builders
& Remodeling, Inc. v. Midwest Lodging, LLC, 615 S.W.3d 70, 80-81 (Mo. App. 2020).
7 Here, any benefit was conferred by Collins upon Decker LLC, rather than Decker
personally. Because Decker LLC is not a party to this action, Collins’ quantum meruit
counterclaim is not justiciable because there is no substantial controversy between parties
with genuinely adverse interests before the trial court. See Mid-Century Ins. Co. v.
Wilburn, 422 S.W.3d 326, 329 (Mo. App. 2013) (there was no justiciable controversy
before the trial court because the liability insurer did not sue its named insured in an action
seeking a declaration that the insurer had no duty to defend or indemnify).3 Thus, Collins’
counterclaim also must be dismissed without prejudice. See S.C. v. Juv. Officer, 474
S.W.3d 160, 164 (Mo. banc 2015).
Collins’ first point concerning Decker’s lack of standing has merit. Because Decker
LLC is not a party to this action, Collins’ counterclaim is not justiciable. Therefore, we
vacate the judgment and remand with directions for the trial court to dismiss the petition
and counterclaim without prejudice.
JEFFREY W. BATES, J. – OPINION AUTHOR
WILLIAM W. FRANCIS, JR., P.J. – CONCUR
JACK A. L. GOODMAN, J. – CONCUR
3 As we explained in Rideout v. Koster, 439 S.W.3d 772, 774 n.5 (Mo. App. 2014), justiciability is prudential in nature, rather than jurisdictional. 8