Rolwing v. Nestle Holdings, Inc.

437 S.W.3d 180, 2014 WL 2583407, 2014 Mo. LEXIS 153
CourtSupreme Court of Missouri
DecidedJune 10, 2014
DocketNo. SC93756
StatusPublished
Cited by22 cases

This text of 437 S.W.3d 180 (Rolwing v. Nestle Holdings, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rolwing v. Nestle Holdings, Inc., 437 S.W.3d 180, 2014 WL 2583407, 2014 Mo. LEXIS 153 (Mo. 2014).

Opinion

RICHARD B. TEITELMAN, Judge.

John Rolwing appeals a judgment dismissing with prejudice his petition for breach of contract. Rolwing’s petition alleged that Nestle Holdings Inc. violated a stock merger agreement by making a late payment to shareholders. The petition was filed more than five years after the alleged late payment. Rolwing sought recovery of interest for the late payment. The trial court dismissed the petition pursuant to section 516.120(1), which applies a five-year limitations period to “[a]ll actions upon contracts ... except those mentioned in section 516.110.”1 Rolwing argues that the trial court erred in not applying the 10-year statute of limitations in section 516.110(1), which applies to all actions “upon any writing ... for the payment of money....”

Rolwing is not suing to enforce the payment of money promised in the contract. Instead, Rolwing’s alleged damages consist of interest that was not promised in the merger agreement. Consequently, the applicable statute is the five-year limitations period set forth in section 516.120(1).

Rolwing also argues that, if the five-year statute applies, the petition is still timely because the five-year limitations period was tolled by a pending class action against Nestle in Ohio. Rolwing has identified no authority holding that a pending class action in one state tolls the statute of limitations in another state. The judgment is affirmed.

I. Facts

Rolwing alleges that on January 15, 2001, Nestle entered a merger agreement with Ralston Purina Company. Rolwing was a Ralston shareholder. The merger agreement provides that, at the “effective time” of the merger, Ralston stock would be converted into a right for all Ralston shareholders to receive $83.50 per share. Rolwing alleges the stock was cancelled on December 12, 2001, but he and other Ral-ston shareholders were not paid until December 18, 2001.

On March 30, 2011, Rolwing filed a class action petition alleging that Nestle breached the merger agreement by failing to timely pay shareholders the $33.50 per share owed pursuant to the agreement. Rolwing alleged he and other class members, as book entry shareholders, were entitled to interest for the alleged late payment as a matter of custom and practice. The petition seeks interest at the statutory rate for the alleged late payment.

The trial court sustained Nestles’ motion to dismiss the petition as barred by the five-year statute of limitations in section 516.120(1). Rolwing raises five points on appeal: (1) the trial court erred in applying the five-year statute instead of the 10-[182]*182year statute; (2) if the five-year statute applies, the petition was timely because the statute was tolled by the pending Ohio action; (3) the trial court erred in not finding that the petition adequately alleged equitable tolling; (4) the trial court erred in denying an opportunity to amend the petition to allege equitable tolling adequately; and (5) none of the other grounds in Nestle’s motion to dismiss warrant dismissal.

II. Standard of Review

This Court applies de novo review to a judgment dismissing a petition. City of Lake Saint Louis v. City of O’Fal-lon, 324 S.W.3d 756, 759 (Mo. banc 2010). When relevant facts are uncontested, the question of whether a statute of limitations bars an action can be decided by a court as a matter of law. State ex rel. Marianist Province of U.S. v. Ross, 258 S.W.3d 809, 811 (Mo. banc 2008).

III. Section 516.120(1) is the Applicable Statute

Rolwing’s first point on appeal asserts that the trial court erred by not applying the 10-year statute of limitations in section 516.110(1). “Missouri has two statutes of limitations relating generally to contract actions: sections 516.110(1) and 516.120.... ” Hughes Development Co. v. Omega Realty Co., 951 S.W.2d 615, 616 (Mo. banc 1997). Section 516.120(1) provides “[A]ll actions upon contracts, obligations or liabilities, express or implied, except those mentioned in section 516.110(1) ... must be brought within five years.” Section 516.110(1) provides “an action upon any writing, sealed or unsealed, for the payment of money or property” must be brought within 10 years.

There is no dispute that the merger agreement contained a promise to pay $33.50 per share to Ralston shareholders. Rolwing contends that this promise to pay money requires application of the 10-year statute for “an action upon a writing ... for the payment of money.” Adopting Rolwing’s position would require this Court to hold that the 10-year statute applies to every breach of contract action involving a contract that includes a promise to pay money even when the plaintiff is not seeking recovery of the money that was promised to be paid.

Conversely, Nestle argues that the 10-year statute applies only when the writing contains a promise to pay money and the plaintiff seeks a judgment for the payment of money that the defendant agreed to pay. In other words, Nestle’s position is that the 10-year statute applies only if the promise sued upon is the promise for the payment of money in the contract. Nestles’ interpretation is correct.

Section 516.110(1) is an exception to the general five-year limitations period established by section 516.120(1).2 The exception mentioned in section 516.110(1) consists of “actions upon a written contract ... for the payment of money or property.” The plain language of section 516.120(1), however, applies generally to all breach of contract actions, including written contracts containing a promise for the payment of money or property. If this Court adopts Rolwing’s argument that section 516.110(1) applies to all breach of contract actions involving a contract that includes a promise to pay money or property, with no requirement that the plaintiff seek a judgment for recovery of the money promised, then section 516.110(1) and [183]*183section 516.120(1) often will conflict. Section 516.110(1) — the exception — would overcome the generally applicable five-year limitations period established by section 516.120(1).

The correct application of sections 516.110(1) and 516.120(1) was set forth by this Court in Hughes, 951 S.W.2d 615. In Hughes, the issue was whether the five-year statute or the 10-year statute applied to an action to recover money allegedly earned and payable under a written contract for services. Id. at 616. The precise issue in Hughes was whether the 10-year statute applied only when the contract at issue established an absolute and fixed liability without resort to extrinsic evidence. Id. Although some prior cases indicated that the 10-year statute did not apply if resort to extrinsic proof was necessary to ascertain the amount owed, this Court held that the 10-year statute contained no requirement that the amount owed must be determinable without resort to extrinsic evidence. Id. at 617. Instead, the 10-year statute established by section 516.110(1) “applies to every breach of contract action in which the plaintiff seeks a judgment from the defendant

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Bluebook (online)
437 S.W.3d 180, 2014 WL 2583407, 2014 Mo. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rolwing-v-nestle-holdings-inc-mo-2014.