Other Areas of Law

Editor:
Rex P. Fennessey, Esquire

A corporate officer is not personally liable for violations of the Telephone Consumer Protection Act unless the officer has actual knowledge of violations of the Act.  Hoops & Associates, P.C., v. Financial Solutions and Associates, Inc., et al., No. 96391 (Mo. App. E.D., November 15, 2011) Draper, J.

Michael Grimes is the president and sole shareholder of Financial Solutions and Associates, Inc. (“Financial Solutions”).  Financial Solutions contracted with ActiveCore Technologies (“ActiveCore”) to send faxes to potential clients.  ActiveCore represented to Financial Solutions that the recipients of these faxes had consented to their receipt.  Hoops received of one of the faxes sent by ActiveCore for Financial Solutions without having consented to such receipt.  Hoops & Associates, P.C. (“Hoops”) filed suit against Grimes and Financial Solutions alleging, inter alia, violations of the federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.  Hoops moved for summary judgment against Financial Solutions and Grimes.  Grimes submitted an affidavit attesting that he was not aware that Financial Solutions’ actions violated the TCPA. The trial court granted Hoops’ motion, finding both Grimes and Financial Solutions liable.  Grimes appealed, claiming genuine issues of fact existed as to his intent to violate the TCPA’s prohibitions.

Held:
 Reversed and remanded.  The Eastern District began by reciting that a violation of the TCPA occurs when a person or entity sends “material advertising the commercial availability or quality of property, goods, or services to a facsimile machine without the recipients’ prior express invitation or permission.” All American Painting, LLC v. Financial Solutions & Associates, Inc., 315 S.W.3d 719, 722 (Mo. banc 2010).  The court then turned to the question of when a corporate officer may be personally liable under the TCPA.  Citing extensively from the district court’s opinion in Texas v. American Blastfax, Inc., et al., 164 F.Supp.2d 892 (W.D.Tex 2001), the Eastern District adopted the general rule that “corporate officers will not be personally liable [for their corporations’ violations of a federal statute] solely because of their status as officers” except when the “officer directly participated in or authorized the statutory violations[.]” Id. at 897.  Because Grimes had submitted an affidavit that he did not have actual knowledge that the actions of Financial Solutions violated the TCPA, the Eastern District found a genuine issue of material fact that precluded summary judgment. 


A trial court’s striking (non-prejudicial dismissal) of a petition constitutes a “nonsuit” for purposes of Missouri’s one-year savings statute.  The savings statute may not be used more than once in a particular cause.  Lucille Williams, v. Southern Union Company d/b/a Missouri Gas and Energy, et al., No. 73013 (Mo. App. W.D., November 15, 2011) Welsh, J.

Lucille Williams was investigated by Southern Union Company d/b/a Missouri Gas Energy (“MGE”) for suspicion of diverting natural gas.  Following her acquittal for an ordinance violation on April 27, 2004, Williams filed suit against MGE and Jeffrey Harris (an employee of MGE) for trespass and malicious prosecution on April 26, 2006 (“First Suit”).  On December 18, 2006, the trial court ordered Williams’ petition struck when her counsel failed to appear at a hearing.  On December 13, 2007, Williams filed a second petition against MGE and Harris, again alleging malicious prosecution, among other claims. (“Second Suit”).  The trial court sustained a motion by MGE and Harris to dismiss the claims added by the Second Suit, but denied the motion with respect to the malicious prosecution claim.  Williams then voluntarily dismissed her Second Suit in its entirety on March 20, 2009.  On March 19, 2010, Williams filed a third petition, again alleging malicious prosecution among other claims (“Third Suit”).  MGE and Harris moved to dismiss the malicious prosecution claim on the grounds that it was barred by the two year statute of limitations for such actions.  The trial court sustained the motion, and following dismissal of her other claims, Williams appealed.

Held: Affirmed in part, reversed in part.
  The Western District noted that the statute of limitations for malicious prosecution is two years, and that the action accrues upon termination of the allegedly malicious action in plaintiff’s favor.  See § 516.140, RSMo.  It also noted that Missouri has a “savings statute,” § 516.230, RSMo, which permits some actions to be re-filed within one year of a nonsuit.  However, the Western District reiterated that a plaintiff may “receive the benefit of this savings statute only once.”  Thus, the question of whether Williams’ malicious prosecution claim was barred by the statue of limitation turned on whether the trial court’s striking of her First Suit constituted a “nonsuit” under the savings statute.  Reaffirming a 1905 Missouri Supreme Court holding, the Western District held that, although the typical “nonsuit” involves a plaintiff’s voluntary dismissal of his own claims, the trial court’s involuntary dismissal without prejudice in this case constituted a nonsuit for purposes of the savings statute.  Because the First Suit’s malicious prosecution claim suffered a “nonsuit” for purposes of the statute, and because the Second Suit’s malicious prosecution claim had already benefitted from the savings statute, Williams could not again benefit from the saving statute in the Third Suit.

Note:
The Court’s opinion also discusses the applicability of collateral estoppel to several of Williams’ other claims.  That discussion is not summarized here.