Durwood v. Dubinsky
| Decision Date | 14 November 1962 |
| Docket Number | No. 38747,No. 2,38747,2 |
| Parties | Stanley Hugh DURWOOD, Marjorie Beth Grant and Richard Mark Durwood, Executors of the Estate of Edward Dubinsky Durwood, Deceased, and Stanley Hugh Durwood, Marjorie Beth Grant and Richard Mark Durwood, Individually, Appellants-Respondents, v. H. W. DUBINSKY, Irwin Dubinsky, Ruth Dubinsky, Executrix of The Estate of Barney Dubinsky, Deceased, and Dubinsky Brothers Theatres, Inc., a corporation, Appellants-Respondents, And Commerce Trust Company, a corporation, Respondent |
| Court | Missouri Supreme Court |
Terence M. O'Brien, Edward F. Aylward, Kansas City, for plaintiffs as respondents.
Basil L. Kaufmann, St. Joseph, S. David Trusty, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondents and cross-appellants.
STOCKARD, Commissioner.
This is the second appeal to this court in litigation which was commenced in November 1948. See Durwood v. Dubinsky, Mo., 291 S.W.2d 909.
For some time prior to May 9, 1946, Edward D. Durwood and two of his children, Stanley H. Durwood and Marjorie Beth Grant, were engaged in the operation of a number of theaters in partnership with Irwin Dubinsky, H. W. Dubinsky and Barney Dubinsky, all younger brothers of Edward D. Durwood. A dispute arose concerning the ownership of the theatrical properties, and a suit was filed in Cole County, Missouri, by Barney, Irwin and H. W. Dubinsky to establish their interest. During trial that suit was settled and a contract (hereafter referred to as the '1946 contract') was entered into setting out the terms of the settlement. It provided that the partnership was terminated as of May 8, 1946, that Barney, Irwin and H. W. Dubinsky disclaimed any interest in the various theatrical properties, and that Edward D. Durwood was to pay to his three brothers the sum of $400,000 and certain other amounts. In addition, Edward D. Durwood was to employ each of his brothers for a term beginning May 9, 1946, and expiring June 30, 1949, and as compensation therefor he was to pay them a sum equal to 25% of the net profits from the operation of certain named theaters, 10% to be paid to Barney and Irwin Dubinsky each, and 5% to H. W. Dubinsky. Other provisions of the contract will be mentioned subsequently. Barney Dubinsky died in July 1948 and his executrix is a party to these proceedings.
On November 3, 1948 Edward D. Durwood filed the pending suit against Irwin and H. W. Dubinsky and the executrix of the estate of Barney Dubinsky. He alleged that although he had paid to his brothers all the money due them under the 1946 contract the defendants contended otherwise, and he prayed that they be required to exhibit all claims and demands against him and that it be determined whether he owed and additional amounts. Plaintiff subsequently filed 'supplemental petitions' which stated separate causes of action for an injunction and a declaratory judgment. All the issues were referred to the referee, and after the hearing plaintiff filed an 'amended petition' in four counts. Count I was an action at law for an accounting and was the same as the original petition. Count II and Count III were the same as the 'supplemental petitions.' Count IV had no counterpart in the previous pleadings. It was there alleged that Irwin and H. W. Dubinsky, in conspiracy with others, violated the 1946 contract by engaging in the theatrical business prior to July 1, 1949, and had built, acquired and operated theatrical property and received profits therefrom. In the prayer it was requested that the court impress the theatrical properties obtained, and the rentals and profits derived therefrom, with a constructive trust in favor of plaintiff.
The trial court approved the report of the referee and entered judgment (hereafter referred to as the '1954 judgment') in favor of the Dubinsky brothers on Count I and in favor of plaintiff on Counts II, III and IV. On appeal, Durwood v. Dubinsky, Mo., 291 S.W.2d 909, this court held that the issues presented by Counts III and IV of the amended petition pertaining to an injunction and a constructive trust were not referable to a referee over the objections of the Dubinsky brothers, and that part of the judgment pertaining to those counts was reversed and the causes remanded for trial before the court as distinguished from a referee. It was also held that the issues presented by Count II, in which a declaratory judgment was sought, were not referable, but that plaintiff was entitled to judgment on the pleadings. As to Count I it was held that the issues there presented had been properly referred to a referee, that the only challenge of the correctness of the judgment entered thereon was without merit, and that part of the judgment disposing of the issues there presented was affirmed.
Upon remand the parties stipulated that the record made before the referee and the trial court in the first trial, including all exhibits, could be considered by the trial court on the rehearing. On March 24, 1960, after trial pursuant to the remand, but before the entry of the judgment, Edward D. Durwood died. Stanley Hugh Durwood, Marjorie Beth Grant and Richard Mark Durwood, as executors of the estate of Edward D. Durwood and also as individuals were substituted as plaintiffs. When we hereafter use the singular term 'plaintiff' we refer to Edward D. Durwood or to those who are now substituted as plaintiffs, and when we use the term 'defendants' we refer to Irwin and H. W. Dubinsky.
On January 10, 1961 the trial court entered judgment (hereafter referred to as the '1961 judgment') in favor of plaintiff on Count III and made the injunction permanent. It dismissed Count IV thereby ruling in favor of defendants. Plaintiff has appealed from the ruling as to Count IV and the defendants have appealed from the ruling as to Count III.
Because of some challenges on this appeal made by plaintiff to that part of the 1961 judgment in which reference is made to Count I, it is necessary that we set out in some detail certain facts pertaining to the contents of the 1954 and 1961 judgments.
The 1954 judgment did not specifically refer to the various counts of the amended petition, but it was divided into paragraphs and the subject matter pertaining to the respective counts is readily discernible. As to the issues presented by Count I the trial court on the first trial found that 'Barney Dubinsky was entitled to receive as compensation under the terms of said contract * * * a balance * * * in the sum of $22,664.84.' It then held that the executrix of Barney Dubinsky's estate should have judgment against Edward D. Durwood in the sum of $31,056.41 (which included accrued interest), and that the judgment be secured by a lien on certain corporate stock and a note placed in escrow with the Commerce Trust Company pursuant to the 1946 contract. It also held that Irwin Dubinsky and H. W. Dubinsky should have judgment against Edward D. Durwood in the sum of $27,281.22 and $13,510.53 respectively (which sums included accrued interest), but the judgment did not provide that the payment of these latter two amounts should be secured by a lien on the property in escrow. Instead it provided that 'this judgment in favor of [Irwin Dubinsky in one case and H. W. Dubinsky in the other] be, and it hereby is satisfied by setoff as hereinafter provided.' It was then held that Edward D. Durwood should have judgment against Irwin Dubinsky and H. W. Dubinsky in the sum of $160,156.51 by reason of imposing a constructive trust on the profits derived from the operation by them of certain theaters in violation of the 1946 contract, but that this 'judgment [in favor of Edward D. Durwood] is hereby reduced by setting off against it the amounts of the judgments against plaintiff herein rendered for the sums of $27,281.22 and $13,510.53 in favor of defendants Irwin Dubinsky and H. W. Dubinsky, leaving a balance of $119,364.76.' Our mandate on the previous appeal rpovided that 'the judgment * * * as to Count I * * * be in all things affirmed and stand in full force and effect,' and also that 'that part of the judgment pertaining to * * * Count IV, be reversed, annulled and for naught held and esteemed, and that the said appellants [including Irwin and H. W. Dubinsky] be restored to all things which they have lost by reason of that portion of the judgment.'
After the conclusion of the trial on remand the trial court made findings of fact and conclusions of law pertaining to Count I, the substance of which was that (1) those findings of fact made by the referee which did not pertain to Count I are void and of no effect; (2) plaintiff breached the terms of the 1946 contract by failing to account properly and fully to the Dubinsky brothers; (3) Irwin Dubinsky, H. W. Dubinsky and the estate of Barney Dubinsky should have judgment against plaintiff on Count I in the amounts set forth in the findings; and (4) the judgment in favor of Edward D. Durwood based on Count IV against Irwin and H. W. Dubinsky in the sum of $160,156.51 was annulled and wiped out by the judgment of the Supreme Court and no setoffs exist in plaintiff's favor against the judgments in favor of the Dubinsky brothers and against him pursuant to Count I. The trial court then set aside the entire 1954 judgment and entered a new judgment covering the entire case, and that part pertaining to Count I is in agreement with the above findings of fact and conclusions of law. Although stated differently, the amount of the judgment in favor of each of the Dubinsky brothers pursuant to Count I is the same in the 1954 and the 1961 judgments, except for the provision for and the effect of the setoff.
Plaintiff now contends on this appeal that since Count I was affirmed on the previous appeal 'the court below had no power or authority to set aside said adjudication or the findings of fact or conclusions of law with respect thereto' or to 'enter new judgments on...
To continue reading
Request your trial
-
Lange v. Baker
...Life Ins. Co., Mo.App., 99 S.W.2d 160, 164(9).2 For factual situations invoking application of this doctrine, see Durwood v. Dubinsky, Mo., 361 S.W.2d 779, 788(5); Schwartz Plumbing Co. v. Shelby Const. Co., Mo., 338 S.W.2d 781, 794(14); Ruckels v. Pryor, 351 Mo. 819, 174 S.W.2d 185, 199(8)......
-
Schnucks Twenty-Five, Inc. v. Bettendorf
...name "Bettendorf" and enable the buyer or its assigns to establish itself in the St. Louis area grocery business. See, Durwood v. Dubinsky, 361 S.W.2d 779, 794 (Mo.1962). Point three is ruled against the In their fourth assignment of error, appellants contend that the trial court erred in c......
-
Brown v. Brown
...is not bound by an unyielding formula. The equities of the situation must shape the measure of the relief, if any." Durwood v. Dubinsky, 361 S.W.2d 779, 790 (Mo.1962). "The forms and varieties of constructive trusts are practically without limit," Musser v. Gen. Realty Co., 313 S.W.2d 5, 9 ......
-
James v. TACO John's Int'l, Inc.
...for TJI and prohibit them from engaging in any other employment or business ventures unrelated to TJI.7 See Durwood v. Dubinsky , 361 S.W.2d 779, 789–90 (Mo. 1962) (citations omitted) ("As a general proposition, an employee who contracts to devote his entire time, services and efforts to th......