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Johnson v. GMAC Mortgage Corp.2/22/2005
ne of cases whose initial pleadings were filed under the wrongful death statute by plaintiffs who had no right to maintain the action, had no standing to sue under the statute, and were not parties authorized to sue under the strict wording of the statute. See State ex rel. Jewish Hosp. of St. Louis v. Buder, 540 S.W.2d 100, 107 (Mo. App. 1976); see also Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957) (stating that " party suing under the [wrongful death] statute ... must bring himself in his pleading and proof strictly within the statutory requirements necessary to confer the right. Otherwise his petition states no cause of action, and his proof is insufficient to sustain his judgment."). The focus in such cases is on the plaintiff and his or her ability to bring the action in the first place. Without the authority conferred by the wrongful death statute, there is no cause of action.
Here, Mr. Johnson did have the authority to file his claims, and his ability to do so is not subject to conditions imposed by the legislature as they are with respect to an action for wrongful death. That a court subsequently determined he had no cause of action on the basis of the allegations in his pleading is entirely distinguishable. We are mindful that our supreme court construes relation back liberally and that Rule 55.33(c) is derived from Rule 15(c) of the Federal Rules of Civil Procedure, which "is based on the concept that a party who is notified of litigation concerning a given transaction or occurrence has been given all the notice that statutes of limitations are intended to afford." Koerper & Co., Inc. v. Unitel Int'l, Inc. , 739 S.W.2d 705, 706 (Mo. banc 1987) (internal quotation marks and citations omitted). The Koerper case overruled Miller v. Werner , 431 S.W.2d 116 (Mo. 1968) and implicitly rejected the analysis of Rule 55.33(c) as announced in Welch , 627 S.W.2d at 321-22, which followed the old analysis under cases like Miller . We also note that long before Rule 55.33(c) was adopted, we had a general doctrine that amended petitions relate back to the filing of the original petition, regardless of whether the original petition has been abandoned. In Philip Gruner & Bros. Lumber Co. v. Hartshorn-Barber Realty & Bldg. Co., 154 S.W. 846, 851 (Mo. App. 1913), we observed that the doctrine was a legal fiction that should be resorted to for the promotion of justice and the lawful intention of the parties, "by giving effect to acts or instruments which, without it, would be invalid." Id.
Accordingly, we need only determine whether Mr. Johnson's TILA claims arose from the conduct, transaction, or occurrence outlined in his original and first amended petitions. Mr. Johnson brought suit in September 2002, mere months after the transaction giving rise to his claims arose. In that petition, Mr. Johnson alleged that his cancellation of the loan was made under "applicable truth in lending laws." It cannot be said that respondents lacked the notice that statutes of limitation are intended to afford.
C. Mr. Johnson's Second Amended Petition Stated a Claim for Relief by Way of Declaratory Judgment
Mr. Johnson's first amended petition requested that the trial court issue a judgment "declaring that the deed of trust mortgage lien is void and that the instrument is of no legal force or effect." When the trial court dismissed this count it found that Mr. Johnson had failed to state a claim because he had not alleged "that he has tendered or offered to tender back the money GMAC Bank paid toward the prior mortgage loans" and that " his is a necessary element of a claim to rescind." Mr. Johnson then filed his second amended petition, in which he re-asserted a count for decla
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