| Interfood, Inc. v. Larry Rice, the Franklin County Case No. 07AB-CC00086 brought illegally by Armstrong Teasdale who falsely claimed to represent Interfood, Inc., is now in The Missouri Court of Appeals, Eastern District as ED94427. |
The first Point on Appeal is as follows:
The court erred in failing to enjoin Armstrong Teasdale and in failing to dismiss the complaint for lack of
jurisdiction following Appellants’ April 9, 2007 Petition, the February 20, 2008 Ruling, the June 11, 2008 Motion
to Dismiss, and the July 13, 2009 hearing on Rice’s motion to dismiss, because the court lacked jurisdiction
over this matter in that:
A) a corporation must be represented by an attorney of its choosing in filing suit, and Interfood Inc. was not
represented by Armstrong Teasdale or any other lawyer in filing this suit; and
B) the court obtains jurisdiction over a Plaintiff when Plaintiff files suit and Interfood Inc. did not file this suit or
authorize any attorney to file it on their behalf.
Standard of Review
“In reviewing a court-tried case, we defer to the Trial Court's findings of fact but independently review its
conclusions of law.” Trans World Airlines, Inc. v. Associated Aviation Underwriters, 58 S.W.3d 609, 617 (Mo.
App. E.D. 2001), see also Andersen v. Bd. of Regents of Missouri Western State College, 58 S.W.3d 581, 585
(Mo. App. W.D. 2001).
“Whether the circuit court had jurisdiction is a question of law, which we review independently on appeal.”
Stearns Bank v Noel Palmer, 182 S.W.3d 624 (Mo.App.E.D.,2005.) citing Norman v. Fischer Chevrolet
Oldsmobile, Inc., 50 S.W.3d 313, 316 (Mo. App. E.D. 2001)
“Whether a party has standing to sue is a legal question that we review de novo” Columbia Sussex Corp. v.
Missouri Gaming Comm'n, 197 S.W.3d 137, 140 (Mo. App. W.D. 2006).
The Court has “a duty to determine [its] jurisdiction sua sponte.” Reisinger v. Reisinger 39 S.W.3d 80, 83 (Mo.
App. E.D. 2001).
A. Where the plaintiff corporation did not file the case through an attorney, the case should be dismissed
Defendants moved to dismiss the complaint in part because the named Plaintiff corporation, had not brought
this action through its attorney; instead the action was commenced by an attorney without authorization,
acting under guise of the corporate name.
It has long been the rule that a corporation must be represented by counsel in legal proceedings. See Property
Exchange & Sles, Inc. (PESI) v. William Bozarth 778 S.W.2d 1 (Mo.App.E.Dist. 1989) citing Clark v. Austin, 340
Mo. 467, 101 S.W.2d 977, 983 (1937). Missouri courts have consistently held that a corporation cannot appear in
a legal proceeding except through an attorney. See Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d
945, 955 (1939); Dobbs Houses, Inc. v. Brooks, 641 S.W.2d 441, 443 (Mo.App.1982); Credit Card Corp. v.
Jackson County Water Co., 688 S.W.2d 809, 811 (Mo.App.1985); § 484.020, R.S.Mo.1986.
A corporation “must act in all its affairs though agents or representatives. In legal matters, it must act, if at all,
through licensed attorneys.” PESI 778 S.W.2d at 3 Where an action is commenced without the proper
representation of counsel, courts have routinely granted dismissal. See e.g. Schenberg v. Bitzmart, Inc and
Steath Media Labs, Inc. 178 S.W.3d 543 ((Mo.App.E.Dist. 2005) and PESI 778 S.W.2d 1.
Usually these cases arise where the corporation is being represented by someone who is not a licensed
attorney. “The normal effect of a representative’s unauthorized practice of law is to dismiss the cause or treat
the particular actions taken by the representatives as a nullity.” Bitzmart,. 178 S.W.3d 543 at 544 citing Strong
v. Gilster Mary Lee Corp., 23 S.W.3d 234, 241 (Mo.App. E.D.2000); Joseph Sansone Co. v. Bay View Golf Course,
97 S.W.3d 531, 532 (Mo.App. E.D.2003). However, even where the pleadings are being filed by a licensed
attorney that alone is not dispositive. See e.g. Miller v. Continental Assur. Co. of America, 134 S.W. 1003 (Mo.
1910.) and Cooper v. Armour & Co., 222 Mo.App. 1176 (Mo.App.1929). (judgment vacated on grounds that
licensed attorney had no authority to file suit.) The decision to file suit is exclusively the clients. See e.g.
Schwartz v. Custom Printing Co., 972 S.W.2d 487 (Mo.App.E.Dist. 1998) (attorney limited to the purpose for
which they were hired) and Robinson v. DeWeese, 379 S.W.2d 831, (Mo.App. 1964) (power to deal with matters
exclusively the clients.)
To have effect the pleadings and other filings must be brought by an attorney that actually represents the party.
See e.g. Miller 134 S.W. 1003, Cooper, 222 Mo.App. 1176 and, J.S. Samland, et. Al v. J. White Transportation Co.,
Inc. 675 S.W.2d 92 (Mo.App. W.D.1984) (stipulation of dismissal had effect where allegation of lack of authority
of attorney not substantiated.) The defect of instituting an action without representation of counsel, where such
representation is required, is not curable. See Commercial & Railroad Bank of Vicksburg v. Slocomb, Richards
& Co., 14 Pet. (39 U.S.) 60, 65 (1840); see also Mullin-Johnson v. Penn Mutual Life Insurance Co., 9 F. Supp. 175
(N.D. Cal. 1934) (judgment rendered in such a proceeding is void); Southwest Express Co., Inc. v. ICC, 670 F.2d
53 (5th Cir. 1982); In re Beech St. Holding Co., 344 F. Supp. 548 (E.D. Pa. 1972); Move Organization v. U.S. Dept.
of Justice, 555 F. Supp. 684, 692-693 (E.D. Pa. 1983); Gill v. Richmond Co-op Assoc., Inc., 309 Mass. 73, 75
(1941); Henry L. Sawyer Co. v. Boyajian, 296 Mass. 215, 218 (1936); Quinn v. Hous. Auth. of Orlando, 385 So.2d
1167 (Fla. App. 1980).
In this case, the original complaint was brought in the name of Plaintiff Interfood Inc. (Inc.) on March 26, 2007.
Inc. is a corporation. As a corporation, Inc. must act through representation of counsel in legal proceedings.
Defendants moved the Trial Court to dismiss the complaint because alleged Plaintiff Interfood, Inc., did not
bring this action, but rather the action was commenced by an attorney falsely claiming to represent Inc. On
April 9, 2007, Appellants /Defendants filed a “Petition for Temporary Restraining Order, Preliminary Injunction
and Permanent Injunction” asking that the alleged Plaintiffs be enjoined from representing themselves as
Interfood, Inc. See L, Vol-I, p88, point 5. T
In the Trial Court, Judge Forder held, on February 20, 2008, later affirmed by the Appeals Court, that at least
prior to November 16, 2007, Rice and Hussmann were President and VP respectively of Inc. and represented its
board. See L, Vol-III, p 354. At the time the suit was filed, on March 26, 2007, the lawyers who filed the suit
allegedly in Inc.’s name, did not represent Inc. In hearing the Motion to Dismiss, Judge Lynch stated “Judge
Forder and her order, I mean – which is now a final judgment, said that that [this suit] basically couldn’t have
been brought by Interfood.” T, Vol-III, 69: Hearing p 45, lines 15-18. Judge Lynch further stated that “whoever
this is that brought something purporting to be Interfood did not have authority to bring that lawsuit”. Quote at
T, Vol-III, 70, hearing p 51, lines 8-10. At this point the case should have been dismissed. In reaching this
conclusion, Judge Lynch should have dismissed the complaint with no opportunity to cure.
The court erred when they did not grant Appellants’ April 9, 2007 Petition and later Motion to Dismiss filed on
June 11, 2008 see L, Vol-III, p 509, in which Appellants stated, among other reasons, that “Tepco does not have
the authority to retain counsel on behalf of Interfood, Waltepco or Waltepco Realestate”. The court continued
this error on July 13, 2009 when Judge Lynch failed to dismiss the matter after he acknowledged that Inc. had
not filed the suit. At the hearing Judge Lynch summarized “Judge Forder and her order, I mean – which is now
a final judgment, said that that [this suit] basically couldn’t have been brought by Interfood.” T, Vol-III, 69:
Hearing p 45, line 15
B. Where the named plaintiff did not in fact file the complaint and did not avail themselves of the court’s
jurisdiction the alleged complaint should be dismissed
Where the named Plaintiff did not in fact file the complaint and did not avail themselves of the Court’s
jurisdiction, the alleged complaint should be dismissed. The Trial Court erred in failing to dismiss the complaint
filed in Inc.’s name for lack of Jurisdiction.
The court erred in failing to dismiss the case when Judge Forder ruled on January 11 and 14 2008 and
February 20, 2008, that in effect Rice and Husmann were the parties running Inc. at least until November 16,
2007, meaning Armstrong Teasdale had not been hired by Inc., and Inc. had not in fact filed this suit. Judge
Lynch said that Judge Forder “made a determination that Mr. Rice was in control of Interfood at the time this
suit was filed”. Quoting T, Vol-III, p70, hearing p 51, lines 13-14.
The Supreme Court of Missouri’s recent decision in Webb sought to clarify the issue of jurisdiction. “In modern
times, when a court says that it lacks personal jurisdiction, it means simply that the constitutional principle of
due process bars it from affecting the rights and interests of a particular person, whether such a “person” be
an individual or an entity such as a corporation” J.C.W. ex rel. Webb v. Wyciskalla 275 S.W.3d 249, 253 Mo.,
2009. “One of the elementary principles of personal jurisdiction is that a trial court obtains personal jurisdiction
over a plaintiff upon the filing of the plaintiff's petition.” Manning v. Fedotin 64 S.W.3d 841, 848 (Mo.App.W.D.
2002) citing 12 STEVEN KATZ, MISSOURI PRACTICE § 39 (2nd Ed.1994). Where there is no jurisdiction over a
named party the case should be treated as void ab initio. See e.g Taylor v. Taylor, 47 S.W.3d 377 (Mo.App.W.D.
2001) (judgment is void if the court that rendered the judgment lacked personal jurisdiction or acted in a
manner inconsistent with due process.)
Lack of jurisdiction over the plaintiff can not be waived. See generally Manning 64 S.W.3d 841. Lack of
jurisdiction can be raised at the Trial Court and sua sponte on appeal. See e.g. Reisinger v. Reisinger 39 S.W.
3d 80, 83 (Mo.App.E.D.2001)
Appellants raised the issue on multiple occasions in the Trial Court, starting just days after the complaint. The
complaint was filed on March 26, 2007 and Appellants filed on April 9, 2007 a petition for a TRO asking that:
“Plaintiff be enjoined from representing itself as “Interfood” without the consent of both Rice and Husmann as
Husmann and Rice are the rightful members of the Board of Directors and are the current President and Vice-
President for both corporations [Waltepco and Inc.]” L, Vol-I, 87, points 5. & 1.
This case was not brought by Interfood Inc. but instead filed by Armstrong Teasdale using Inc.’s corporate
name. Judge Lynch stated “whoever this is that brought something purporting to be Interfood did not have
authority to bring that lawsuit at that point in time”. T, Vol-III, 70, hearing p 51, lines 8-10. The Judge erred in
then not dismissing the case where he determined that the named Plaintiff did not in fact file the case. Instead
ruling that “I think the Supreme Court [in Webb] intended to make a seat [sic] change in the jurisdiction issue.
So with that being said, I’m going to deny the Defendants’ Motion to Dismiss Plaintiffs’ First Amended Petition.”
Id. at page 78, hearing page 81, lines 2-6.
Because Inc. did not file the complaint, or hire an attorney to file the complaint on Inc.’s behalf, the Trial Court
did not have personal jurisdiction over Inc. in this matter and the case should be treated as void ab initio.
Similarly, Waltepco and Tepco did not enter this case on their own, or hire an attorney to do so on their behalf.
The only attorneys Waltepco hired were instructed to dismiss all claims brought allegedly on Waltepco’s behalf.
1. An entities' authority, also called capacity, to sue is not the same as an attorney's authority, which is given by
their client.
The legal authority, or capacity, of an entity to bring a suit is a different issue than the authority, or agency, that
an attorney needs to act on behalf of another – these are different uses of the word authority.
“Capacity refers to the status of a person or group as an entity that can sue or be sued.” In Their
Representative Capacity As Trustees For The Indian Springs Owners Association, v. Greeves, 277 S.W.3d 793
(Mo.App.E.D.,2009.) quoting City of Wellsoton v. SBC Communications, Inc. 203 S.W.3d 189, 193 (Mo.banc.
2006). Courts also refer to capacity as the party’s authority to sue. Indian Springs 277 S.W.3d 793, 798. “A party
has the right to have access to the courts when it is free from any general disability, such as infancy or
insanity.” Id. citing Midwestern Health Management, Inc. v. Walker, 208 S.W.3d 295 (Mo.App. W.D.2006). To
maintain a suit the plaintiff must have capacity to sue. ADP Dealer Services Grp. v. Carroll Motor Company, 195
S.W.3d 1 (Mo.App.E.D. 2005) (unincorporated divisions do not have capacity to sue). A corporation, Inc. in this
case, has the capacity to sue in its own name, if it chooses to do so. Id.
Capacity or authority of a party is not the same as the authority of an attorney to file suit on one’s behalf.
Authority of an attorney to act on behalf of a client arises from the attorney-client relationship. See Samland,
675 S.W2d. 92. While it is strongly presumed that “where a party appears in a court of record by a duly licensed
and practicing attorney, the attorney was duly authorized to appear and represent such party in said court.”
Curtis v. Curtis 427 S.W.2d 410. 413 (Mo. 1968.) quoting Miller, 134 S.W. 1003, 1004. The authority of an attorney
of record can be challenged, the burden typically being on the party challenging the authority. Samland, 675 S.
W2d. 92 at 96. However, if the alleged client challenges the attorney’s authority, then the burden shifts to the
attorney. Id.
The attorney-client relationship is a relation of agency, and is governed by the same rules. World Resources,
Ltd. v. Utterback, 943 S.W.2d 269, 271 (Mo. App. 1997). Agency must be proven from the facts and not inferred
from conjecture. Id.
In this case, Armstrong Teasdale’s alleged representation of Inc. was repeatedly challenged by Inc.,
represented by Husmann and Rice as Inc.’s President, Vice-president, and the majority of the Board of
Directors. The Complaint was filed on March 26, 2007, and on April 9, 2007 the controlling board of Inc. was
already in court seeking to remove Armstrong Teasdale from claiming to represent Inc. See L, Vol- I, p87. In fact
the Appellants filed numerous times with the Trial Court seeking to remove Armstrong Teasdale. Because the
determination has already been made by the Court that Armstrong Teasdale did not represent Inc. at least prior
to November 16, 2007, there is no need to discuss individually each of the Appellants’ multiple filings on the
issue at this point. See L, Vol-III, p354.
When it is determined that an attorney did not have authorization to act, the filings by that attorney are void.
See e.g. Curtis 427 S.W.2d 410 (prior pleadings signed by unauthorized attorney shall not relate back to party)
citing Anderson v. McPike, 86 Mo. 239 (Mo.1885) (excluding answer signed by attorney who was not hired by
defendant) and Patterson v. Yancey, 97 Mo.App. 681 (Mo.App.1903) (judgment set aside when defendant
testified that no attorney had been authorized to appear or file answer on defendants behalf.) Where an
attorney had no authority to file suit the judgment should be vacated. Cooper, 222 Mo.App. 1176.
At the hearing on the Motion to Dismiss, Judge Lynch stated that Armstrong Teasdale filed the case without
being authorized to act on behalf of Inc. and Armstrong Teasdale agreed. T, Vol-III, 70, Hearing p 51 lines 1-20.
Armstrong Teasdale Attorney Shultz: “I agree with your analysis, Your Honor, especially when you say that by
virtue of her [Judge Forder] decision, those folks [Armstrong Teasdale] didn't have authority to file the suit in
the name of Interfood” Id. lines 10-20. Upon finding that the pleadings were filed without the authority of the
named Plaintiff, the case should have been dismissed.
2. A case filed by an attorney without authority from the client can not be cured by amending the complaint.
Armstrong Teasdale argues that filing the original complaint in the name of Inc. without actually representing
Inc., can be cured by amending the complaint. T, Vol-III, 70, Hearing p 51 lines 17-25. In support of their position
they cite to Indian Springs, 277 S.W.3d 793 and Western Casualty and Surety Co. v. Kansas City Bank and
Trust Co., 743 S.W.2d. 578 (Mo.App.W.D.,1988.)
In Indian Springs, two homeowners, purporting to be trustees and purporting to represent an unincorporated
property owners association, sued two of the association's member homeowners over the building of a shed
with out approval. 277 S.W.3d 793. The Trial Court dismissed for lack of standing, because the trustees had not
properly held elections. Id. The Association Appealed claiming that the issue was not one of standing but
“whether the Trustees, as representative parties of the Association, had capacity or authority to sue
Homeowners.” Id at 799. Standing can not be waived, but capacity can be. Id. at 798. The Appeals Court then
found that the Homeowners had waived the “capacity” claim by not filing a motion or pleading to raise the
issue in the Trial Court, and on appeal would not review the merits of the “capacity” issue. Id. So the Court of
Appeals moved to the issue of Standing and found that there was indeed standing because the trustees who
had brought the suit had standing in their own right as homeowners and per the association rules could
indeed represent the association. Id. at 800.
Indian Springs does not apply to our case for three reasons: 1) Inc. is a Corporation, not an unincorporated
association; 2) although the homeowner members claiming to represent the association did have standing on
their own to bring that action, in this case Armstrong Teasdale does not in its own right have standing to bring
the complaint using Inc.’s name; and 3) while the Indian Springs homeowners did not raise up the issue of
authority to sue, Defendants in this case have brought it up early (April 9, 2007) and often.
In Western Casualty, Western sought to set aside the transfer of the property of a debtor. See 743 S.W.2d. 578.
Where the original pleadings lacked sufficient facts to show that Western was indeed a creditor on a note
reduced to final judgment, the lower court dismissed the case, denying Western’s request to amend the
pleadings to add the needed facts. Id. On appeal the Court found that Western’s proposed amended petition
sufficiently alleged that the note was reduced to judgment at a time before the petition was filed. Id. at 581 The
Appeals Court held that where there was no prejudice to the opposing party, Western should be allowed to
amend the pleadings to “cure the inadequacy of its petition.” Id. at 582.
Western Casualty does not apply to our case because in that case there is no dispute that Western filed the
original petition and wanted to amend it; in our case however, Inc. never even sought to file the original suit, in
March 2007.
As explained in detail above, the issue is not one of the named Plaintiff, Inc., lacking capacity, or failing to add
overlooked facts, but whether Armstrong Teasdale was even hired by and representing Inc. when Armstrong
Teasdale filed suit using Inc.’s corporate name. Following the logic of the Trial Court’s ruling, at least prior to
November 2007 Armstrong Teasdale did not represent Inc. or have any authority from Inc. to file suit using Inc.’
s name.
There has been no finding of fact that Armstrong Teasdale was ever hired by Inc. even though that issue was
repeatedly raised in the filings and hearings at the Trial Court.
The case at hand is also distinguishable from Western Casualty, where, presumably, the named Plaintiff
actually wanted to file suit, but did so with unartful pleadings, omitting some necessary facts. See generally 743
S.W.2d. 578. In the present case, with Inc., no facts that existed at the time of filing would have given Armstrong
Teasdale permission to file a suit using Inc.’s corporate name in March 2007. Instead the Court’s Order is quite
to the contrary, and Judge Lynch has said specifically that the case “couldn't have been brought by Interfood.”
T, Vol-III, 69: hearing p 45, line 17.
The issue of an attorney filing suit in the name of a corporation that they do not in fact represent
is not a curable defect of the kind contemplated in Western Casualty and Indian Springs. This
case was not filed by an attorney representing Inc. and because Inc. never submitted to the
jurisdiction of the court by filing the original petition, this case was void ab initio. Because these
defects are not curable, this case should be dismissed.
The court erred in failing to enjoin Armstrong Teasdale and in failing to dismiss the complaint for lack of
jurisdiction following Appellants’ April 9, 2007 Petition, the February 20, 2008 Ruling, the June 11, 2008 Motion
to Dismiss, and the July 13, 2009 hearing on Rice’s motion to dismiss, because the court lacked jurisdiction
over this matter in that:
A) a corporation must be represented by an attorney of its choosing in filing suit, and Interfood Inc. was not
represented by Armstrong Teasdale or any other lawyer in filing this suit; and
B) the court obtains jurisdiction over a Plaintiff when Plaintiff files suit and Interfood Inc. did not file this suit or
authorize any attorney to file it on their behalf.
Standard of Review
“In reviewing a court-tried case, we defer to the Trial Court's findings of fact but independently review its
conclusions of law.” Trans World Airlines, Inc. v. Associated Aviation Underwriters, 58 S.W.3d 609, 617 (Mo.
App. E.D. 2001), see also Andersen v. Bd. of Regents of Missouri Western State College, 58 S.W.3d 581, 585
(Mo. App. W.D. 2001).
“Whether the circuit court had jurisdiction is a question of law, which we review independently on appeal.”
Stearns Bank v Noel Palmer, 182 S.W.3d 624 (Mo.App.E.D.,2005.) citing Norman v. Fischer Chevrolet
Oldsmobile, Inc., 50 S.W.3d 313, 316 (Mo. App. E.D. 2001)
“Whether a party has standing to sue is a legal question that we review de novo” Columbia Sussex Corp. v.
Missouri Gaming Comm'n, 197 S.W.3d 137, 140 (Mo. App. W.D. 2006).
The Court has “a duty to determine [its] jurisdiction sua sponte.” Reisinger v. Reisinger 39 S.W.3d 80, 83 (Mo.
App. E.D. 2001).
A. Where the plaintiff corporation did not file the case through an attorney, the case should be dismissed
Defendants moved to dismiss the complaint in part because the named Plaintiff corporation, had not brought
this action through its attorney; instead the action was commenced by an attorney without authorization,
acting under guise of the corporate name.
It has long been the rule that a corporation must be represented by counsel in legal proceedings. See Property
Exchange & Sles, Inc. (PESI) v. William Bozarth 778 S.W.2d 1 (Mo.App.E.Dist. 1989) citing Clark v. Austin, 340
Mo. 467, 101 S.W.2d 977, 983 (1937). Missouri courts have consistently held that a corporation cannot appear in
a legal proceeding except through an attorney. See Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d
945, 955 (1939); Dobbs Houses, Inc. v. Brooks, 641 S.W.2d 441, 443 (Mo.App.1982); Credit Card Corp. v.
Jackson County Water Co., 688 S.W.2d 809, 811 (Mo.App.1985); § 484.020, R.S.Mo.1986.
A corporation “must act in all its affairs though agents or representatives. In legal matters, it must act, if at all,
through licensed attorneys.” PESI 778 S.W.2d at 3 Where an action is commenced without the proper
representation of counsel, courts have routinely granted dismissal. See e.g. Schenberg v. Bitzmart, Inc and
Steath Media Labs, Inc. 178 S.W.3d 543 ((Mo.App.E.Dist. 2005) and PESI 778 S.W.2d 1.
Usually these cases arise where the corporation is being represented by someone who is not a licensed
attorney. “The normal effect of a representative’s unauthorized practice of law is to dismiss the cause or treat
the particular actions taken by the representatives as a nullity.” Bitzmart,. 178 S.W.3d 543 at 544 citing Strong
v. Gilster Mary Lee Corp., 23 S.W.3d 234, 241 (Mo.App. E.D.2000); Joseph Sansone Co. v. Bay View Golf Course,
97 S.W.3d 531, 532 (Mo.App. E.D.2003). However, even where the pleadings are being filed by a licensed
attorney that alone is not dispositive. See e.g. Miller v. Continental Assur. Co. of America, 134 S.W. 1003 (Mo.
1910.) and Cooper v. Armour & Co., 222 Mo.App. 1176 (Mo.App.1929). (judgment vacated on grounds that
licensed attorney had no authority to file suit.) The decision to file suit is exclusively the clients. See e.g.
Schwartz v. Custom Printing Co., 972 S.W.2d 487 (Mo.App.E.Dist. 1998) (attorney limited to the purpose for
which they were hired) and Robinson v. DeWeese, 379 S.W.2d 831, (Mo.App. 1964) (power to deal with matters
exclusively the clients.)
To have effect the pleadings and other filings must be brought by an attorney that actually represents the party.
See e.g. Miller 134 S.W. 1003, Cooper, 222 Mo.App. 1176 and, J.S. Samland, et. Al v. J. White Transportation Co.,
Inc. 675 S.W.2d 92 (Mo.App. W.D.1984) (stipulation of dismissal had effect where allegation of lack of authority
of attorney not substantiated.) The defect of instituting an action without representation of counsel, where such
representation is required, is not curable. See Commercial & Railroad Bank of Vicksburg v. Slocomb, Richards
& Co., 14 Pet. (39 U.S.) 60, 65 (1840); see also Mullin-Johnson v. Penn Mutual Life Insurance Co., 9 F. Supp. 175
(N.D. Cal. 1934) (judgment rendered in such a proceeding is void); Southwest Express Co., Inc. v. ICC, 670 F.2d
53 (5th Cir. 1982); In re Beech St. Holding Co., 344 F. Supp. 548 (E.D. Pa. 1972); Move Organization v. U.S. Dept.
of Justice, 555 F. Supp. 684, 692-693 (E.D. Pa. 1983); Gill v. Richmond Co-op Assoc., Inc., 309 Mass. 73, 75
(1941); Henry L. Sawyer Co. v. Boyajian, 296 Mass. 215, 218 (1936); Quinn v. Hous. Auth. of Orlando, 385 So.2d
1167 (Fla. App. 1980).
In this case, the original complaint was brought in the name of Plaintiff Interfood Inc. (Inc.) on March 26, 2007.
Inc. is a corporation. As a corporation, Inc. must act through representation of counsel in legal proceedings.
Defendants moved the Trial Court to dismiss the complaint because alleged Plaintiff Interfood, Inc., did not
bring this action, but rather the action was commenced by an attorney falsely claiming to represent Inc. On
April 9, 2007, Appellants /Defendants filed a “Petition for Temporary Restraining Order, Preliminary Injunction
and Permanent Injunction” asking that the alleged Plaintiffs be enjoined from representing themselves as
Interfood, Inc. See L, Vol-I, p88, point 5. T
In the Trial Court, Judge Forder held, on February 20, 2008, later affirmed by the Appeals Court, that at least
prior to November 16, 2007, Rice and Hussmann were President and VP respectively of Inc. and represented its
board. See L, Vol-III, p 354. At the time the suit was filed, on March 26, 2007, the lawyers who filed the suit
allegedly in Inc.’s name, did not represent Inc. In hearing the Motion to Dismiss, Judge Lynch stated “Judge
Forder and her order, I mean – which is now a final judgment, said that that [this suit] basically couldn’t have
been brought by Interfood.” T, Vol-III, 69: Hearing p 45, lines 15-18. Judge Lynch further stated that “whoever
this is that brought something purporting to be Interfood did not have authority to bring that lawsuit”. Quote at
T, Vol-III, 70, hearing p 51, lines 8-10. At this point the case should have been dismissed. In reaching this
conclusion, Judge Lynch should have dismissed the complaint with no opportunity to cure.
The court erred when they did not grant Appellants’ April 9, 2007 Petition and later Motion to Dismiss filed on
June 11, 2008 see L, Vol-III, p 509, in which Appellants stated, among other reasons, that “Tepco does not have
the authority to retain counsel on behalf of Interfood, Waltepco or Waltepco Realestate”. The court continued
this error on July 13, 2009 when Judge Lynch failed to dismiss the matter after he acknowledged that Inc. had
not filed the suit. At the hearing Judge Lynch summarized “Judge Forder and her order, I mean – which is now
a final judgment, said that that [this suit] basically couldn’t have been brought by Interfood.” T, Vol-III, 69:
Hearing p 45, line 15
B. Where the named plaintiff did not in fact file the complaint and did not avail themselves of the court’s
jurisdiction the alleged complaint should be dismissed
Where the named Plaintiff did not in fact file the complaint and did not avail themselves of the Court’s
jurisdiction, the alleged complaint should be dismissed. The Trial Court erred in failing to dismiss the complaint
filed in Inc.’s name for lack of Jurisdiction.
The court erred in failing to dismiss the case when Judge Forder ruled on January 11 and 14 2008 and
February 20, 2008, that in effect Rice and Husmann were the parties running Inc. at least until November 16,
2007, meaning Armstrong Teasdale had not been hired by Inc., and Inc. had not in fact filed this suit. Judge
Lynch said that Judge Forder “made a determination that Mr. Rice was in control of Interfood at the time this
suit was filed”. Quoting T, Vol-III, p70, hearing p 51, lines 13-14.
The Supreme Court of Missouri’s recent decision in Webb sought to clarify the issue of jurisdiction. “In modern
times, when a court says that it lacks personal jurisdiction, it means simply that the constitutional principle of
due process bars it from affecting the rights and interests of a particular person, whether such a “person” be
an individual or an entity such as a corporation” J.C.W. ex rel. Webb v. Wyciskalla 275 S.W.3d 249, 253 Mo.,
2009. “One of the elementary principles of personal jurisdiction is that a trial court obtains personal jurisdiction
over a plaintiff upon the filing of the plaintiff's petition.” Manning v. Fedotin 64 S.W.3d 841, 848 (Mo.App.W.D.
2002) citing 12 STEVEN KATZ, MISSOURI PRACTICE § 39 (2nd Ed.1994). Where there is no jurisdiction over a
named party the case should be treated as void ab initio. See e.g Taylor v. Taylor, 47 S.W.3d 377 (Mo.App.W.D.
2001) (judgment is void if the court that rendered the judgment lacked personal jurisdiction or acted in a
manner inconsistent with due process.)
Lack of jurisdiction over the plaintiff can not be waived. See generally Manning 64 S.W.3d 841. Lack of
jurisdiction can be raised at the Trial Court and sua sponte on appeal. See e.g. Reisinger v. Reisinger 39 S.W.
3d 80, 83 (Mo.App.E.D.2001)
Appellants raised the issue on multiple occasions in the Trial Court, starting just days after the complaint. The
complaint was filed on March 26, 2007 and Appellants filed on April 9, 2007 a petition for a TRO asking that:
“Plaintiff be enjoined from representing itself as “Interfood” without the consent of both Rice and Husmann as
Husmann and Rice are the rightful members of the Board of Directors and are the current President and Vice-
President for both corporations [Waltepco and Inc.]” L, Vol-I, 87, points 5. & 1.
This case was not brought by Interfood Inc. but instead filed by Armstrong Teasdale using Inc.’s corporate
name. Judge Lynch stated “whoever this is that brought something purporting to be Interfood did not have
authority to bring that lawsuit at that point in time”. T, Vol-III, 70, hearing p 51, lines 8-10. The Judge erred in
then not dismissing the case where he determined that the named Plaintiff did not in fact file the case. Instead
ruling that “I think the Supreme Court [in Webb] intended to make a seat [sic] change in the jurisdiction issue.
So with that being said, I’m going to deny the Defendants’ Motion to Dismiss Plaintiffs’ First Amended Petition.”
Id. at page 78, hearing page 81, lines 2-6.
Because Inc. did not file the complaint, or hire an attorney to file the complaint on Inc.’s behalf, the Trial Court
did not have personal jurisdiction over Inc. in this matter and the case should be treated as void ab initio.
Similarly, Waltepco and Tepco did not enter this case on their own, or hire an attorney to do so on their behalf.
The only attorneys Waltepco hired were instructed to dismiss all claims brought allegedly on Waltepco’s behalf.
1. An entities' authority, also called capacity, to sue is not the same as an attorney's authority, which is given by
their client.
The legal authority, or capacity, of an entity to bring a suit is a different issue than the authority, or agency, that
an attorney needs to act on behalf of another – these are different uses of the word authority.
“Capacity refers to the status of a person or group as an entity that can sue or be sued.” In Their
Representative Capacity As Trustees For The Indian Springs Owners Association, v. Greeves, 277 S.W.3d 793
(Mo.App.E.D.,2009.) quoting City of Wellsoton v. SBC Communications, Inc. 203 S.W.3d 189, 193 (Mo.banc.
2006). Courts also refer to capacity as the party’s authority to sue. Indian Springs 277 S.W.3d 793, 798. “A party
has the right to have access to the courts when it is free from any general disability, such as infancy or
insanity.” Id. citing Midwestern Health Management, Inc. v. Walker, 208 S.W.3d 295 (Mo.App. W.D.2006). To
maintain a suit the plaintiff must have capacity to sue. ADP Dealer Services Grp. v. Carroll Motor Company, 195
S.W.3d 1 (Mo.App.E.D. 2005) (unincorporated divisions do not have capacity to sue). A corporation, Inc. in this
case, has the capacity to sue in its own name, if it chooses to do so. Id.
Capacity or authority of a party is not the same as the authority of an attorney to file suit on one’s behalf.
Authority of an attorney to act on behalf of a client arises from the attorney-client relationship. See Samland,
675 S.W2d. 92. While it is strongly presumed that “where a party appears in a court of record by a duly licensed
and practicing attorney, the attorney was duly authorized to appear and represent such party in said court.”
Curtis v. Curtis 427 S.W.2d 410. 413 (Mo. 1968.) quoting Miller, 134 S.W. 1003, 1004. The authority of an attorney
of record can be challenged, the burden typically being on the party challenging the authority. Samland, 675 S.
W2d. 92 at 96. However, if the alleged client challenges the attorney’s authority, then the burden shifts to the
attorney. Id.
The attorney-client relationship is a relation of agency, and is governed by the same rules. World Resources,
Ltd. v. Utterback, 943 S.W.2d 269, 271 (Mo. App. 1997). Agency must be proven from the facts and not inferred
from conjecture. Id.
In this case, Armstrong Teasdale’s alleged representation of Inc. was repeatedly challenged by Inc.,
represented by Husmann and Rice as Inc.’s President, Vice-president, and the majority of the Board of
Directors. The Complaint was filed on March 26, 2007, and on April 9, 2007 the controlling board of Inc. was
already in court seeking to remove Armstrong Teasdale from claiming to represent Inc. See L, Vol- I, p87. In fact
the Appellants filed numerous times with the Trial Court seeking to remove Armstrong Teasdale. Because the
determination has already been made by the Court that Armstrong Teasdale did not represent Inc. at least prior
to November 16, 2007, there is no need to discuss individually each of the Appellants’ multiple filings on the
issue at this point. See L, Vol-III, p354.
When it is determined that an attorney did not have authorization to act, the filings by that attorney are void.
See e.g. Curtis 427 S.W.2d 410 (prior pleadings signed by unauthorized attorney shall not relate back to party)
citing Anderson v. McPike, 86 Mo. 239 (Mo.1885) (excluding answer signed by attorney who was not hired by
defendant) and Patterson v. Yancey, 97 Mo.App. 681 (Mo.App.1903) (judgment set aside when defendant
testified that no attorney had been authorized to appear or file answer on defendants behalf.) Where an
attorney had no authority to file suit the judgment should be vacated. Cooper, 222 Mo.App. 1176.
At the hearing on the Motion to Dismiss, Judge Lynch stated that Armstrong Teasdale filed the case without
being authorized to act on behalf of Inc. and Armstrong Teasdale agreed. T, Vol-III, 70, Hearing p 51 lines 1-20.
Armstrong Teasdale Attorney Shultz: “I agree with your analysis, Your Honor, especially when you say that by
virtue of her [Judge Forder] decision, those folks [Armstrong Teasdale] didn't have authority to file the suit in
the name of Interfood” Id. lines 10-20. Upon finding that the pleadings were filed without the authority of the
named Plaintiff, the case should have been dismissed.
2. A case filed by an attorney without authority from the client can not be cured by amending the complaint.
Armstrong Teasdale argues that filing the original complaint in the name of Inc. without actually representing
Inc., can be cured by amending the complaint. T, Vol-III, 70, Hearing p 51 lines 17-25. In support of their position
they cite to Indian Springs, 277 S.W.3d 793 and Western Casualty and Surety Co. v. Kansas City Bank and
Trust Co., 743 S.W.2d. 578 (Mo.App.W.D.,1988.)
In Indian Springs, two homeowners, purporting to be trustees and purporting to represent an unincorporated
property owners association, sued two of the association's member homeowners over the building of a shed
with out approval. 277 S.W.3d 793. The Trial Court dismissed for lack of standing, because the trustees had not
properly held elections. Id. The Association Appealed claiming that the issue was not one of standing but
“whether the Trustees, as representative parties of the Association, had capacity or authority to sue
Homeowners.” Id at 799. Standing can not be waived, but capacity can be. Id. at 798. The Appeals Court then
found that the Homeowners had waived the “capacity” claim by not filing a motion or pleading to raise the
issue in the Trial Court, and on appeal would not review the merits of the “capacity” issue. Id. So the Court of
Appeals moved to the issue of Standing and found that there was indeed standing because the trustees who
had brought the suit had standing in their own right as homeowners and per the association rules could
indeed represent the association. Id. at 800.
Indian Springs does not apply to our case for three reasons: 1) Inc. is a Corporation, not an unincorporated
association; 2) although the homeowner members claiming to represent the association did have standing on
their own to bring that action, in this case Armstrong Teasdale does not in its own right have standing to bring
the complaint using Inc.’s name; and 3) while the Indian Springs homeowners did not raise up the issue of
authority to sue, Defendants in this case have brought it up early (April 9, 2007) and often.
In Western Casualty, Western sought to set aside the transfer of the property of a debtor. See 743 S.W.2d. 578.
Where the original pleadings lacked sufficient facts to show that Western was indeed a creditor on a note
reduced to final judgment, the lower court dismissed the case, denying Western’s request to amend the
pleadings to add the needed facts. Id. On appeal the Court found that Western’s proposed amended petition
sufficiently alleged that the note was reduced to judgment at a time before the petition was filed. Id. at 581 The
Appeals Court held that where there was no prejudice to the opposing party, Western should be allowed to
amend the pleadings to “cure the inadequacy of its petition.” Id. at 582.
Western Casualty does not apply to our case because in that case there is no dispute that Western filed the
original petition and wanted to amend it; in our case however, Inc. never even sought to file the original suit, in
March 2007.
As explained in detail above, the issue is not one of the named Plaintiff, Inc., lacking capacity, or failing to add
overlooked facts, but whether Armstrong Teasdale was even hired by and representing Inc. when Armstrong
Teasdale filed suit using Inc.’s corporate name. Following the logic of the Trial Court’s ruling, at least prior to
November 2007 Armstrong Teasdale did not represent Inc. or have any authority from Inc. to file suit using Inc.’
s name.
There has been no finding of fact that Armstrong Teasdale was ever hired by Inc. even though that issue was
repeatedly raised in the filings and hearings at the Trial Court.
The case at hand is also distinguishable from Western Casualty, where, presumably, the named Plaintiff
actually wanted to file suit, but did so with unartful pleadings, omitting some necessary facts. See generally 743
S.W.2d. 578. In the present case, with Inc., no facts that existed at the time of filing would have given Armstrong
Teasdale permission to file a suit using Inc.’s corporate name in March 2007. Instead the Court’s Order is quite
to the contrary, and Judge Lynch has said specifically that the case “couldn't have been brought by Interfood.”
T, Vol-III, 69: hearing p 45, line 17.
The issue of an attorney filing suit in the name of a corporation that they do not in fact represent
is not a curable defect of the kind contemplated in Western Casualty and Indian Springs. This
case was not filed by an attorney representing Inc. and because Inc. never submitted to the
jurisdiction of the court by filing the original petition, this case was void ab initio. Because these
defects are not curable, this case should be dismissed.
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