Falcon Enterprises, Inc. v. Precise Forms, Inc.

• Decision Date: 01 April 1974
• Docket Number: No. KCD,KCD
• Parties: FALCON ENTERPRISES, INC., Appellant, v. PRECISE FORMS, INC., et al., Respondents. 26394.
• Court: Missouri Court of Appeals

Page 170

509 S.W.2d 170

FALCON ENTERPRISES, INC., Appellant, v. PRECISE FORMS, INC., et al., Respondents.

No. KCD 26394.

Missouri Court of Appeals, Kansas City District.

April 1, 1974.

Rehearing Denied May 6, 1974.

Patrick R. Faltico, Paul Margolis, Jr., Kansas City, for appellant.

William B. Teasdale, Jack Z. Krigel, Kansas City, for respondents.

Before DIXON, C.J., and SHANGLER and WASSERSTROM, JJ.

WASSERSTROM, Judge.

Plaintiff, the appellant here, sued to recover the value of two signs located on leased premises which it alleged were misappropriated by the defendants after a default in the payment of rent. Four of the defendant, Mr. and Mrs. Trimmer and Mr. and Mrs. McKinley, as owners of the real estate, counterclaimed for the amount of unpaid rent, unpaid utilities, damages to the premises and the removal of certain equipment. Plaintiff in due time filed a reply to this counterclaim.

The case was set for trial on July 3, 1972, and the defendants appeared in court on that date. However, no appearance was made by plaintiff. Defendants proceeded to introduce evidence, and the court entered judgment for the full amount claimed by the Trimmers and McKinleys in the sum of $4,590.

Four days later, on July 7, 1972, plaintiff filed a motion to Set Aside Judgment. In support of that motion, plaintiff set forth that depositions, including that of Mr. Patrick R. Faltico, had been set for June 28 1972, just a few days before the trial date. The motion further stated that Mr. Faltico, one of the officers of the plaintiff corporation and also its attorney, was ill on that date and that Mrs. Faltico called the court reporter to arrange for a resetting of the deposition. An affidavit of Mrs. Faltico attached to the motion stated that she further advised the reporter that Mr. Faltico would be willing to agree to a continuance of the case in the event that the deposition could not be rescheduled before the trial date of July 3.

The motion also set forth that on June 29, Mr. Faltico was served with a notice to take his deposition on July 5, 1972. Mr. Faltico stated in the motion that he understood this notice to reflect an agreement by the defendants' attorney to reset the case for trial at some date subsequent to the taking of his deposition. Mr. Faltico further stated in the motion that he received no further word concerning the trial setting until he called defendants' lawyer on July 5, 1972, to say he would be a few minutes late for the deposition, at which time he was informed that judgment had already been entered two days earlier.

This motion by plaintiff was taken under advisement and was overruled by the court. Thereafter, plaintiff filed a Motion for Rehearing, supported by voluminous affidavits, and that motion was also overruled.

Plaintiff assigns two points of error on this appeal: 1) that the counterclaim should have been dismissed for failure to state a claim upon which relief could be granted; and 2) that the judgment should have been set aside because of irregularity and mistake.

I.

If the after-trial proceedings instituted by plaintiff were, in fact, one to set aside the judgment for 'irregularity' under § 511.250 RSMo 1969, V.A.M.S. and Rule 74.32, V.A.M.R., as indicated by the name attached by plaintiff to its motion and terminology employed therein, then plaintiff's first point could not be considered. This is for the reason that the failure of a pleading to state facts upon which relief can be granted is not an 'irregularity' within the meaning of this type of proceeding. State ex rel. v. Tate, 109 Mo. 265, 18 S.W. 1088 (1892); Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132 (banc 1952).

However, the name given by a party to his after-trial motion is not controlling. Under facts very similar to those here, the court in Hamm v. Hamm, 437 S.W.2d 449, l.c. 452--453 (Mo.App.1969), treated the motion and proceedings as one for a new trial. ¹ So treating the motion, it was filed within time, and the appeal herein must be considered as an ordinary direct appeal from the judgment itself. Even though the motion in the trial court did not raise any point concerning the sufficiency of the counterclaim to state a cause of action, nevertheless, this question is not waived by failure to properly preserve it in the trial court and it may be raised for the first time on appeal. Harding v. State Farm Mutual Automobile Insurance Co., 448 S.W.2d 5 (Mo.banc 1969).

Plaintiff contends that the counterclaim failed to state a cause of action basically because it did not set forth sufficient facts to tie plaintiff into the lease and to show any responsibility on its part for performance of the lease obligations. The facts alleged by the counterclaim are that the premises were originally leased by Charles T. and Cecilia Heaton to Kansas City Beef No. 1, Inc.; that the lease was thereafter assigned to Steakland, Inc.; that thereafter the Heatons sold the real estate to the Trimmers and McKinleys; that Kansas City Beef No. 2, Inc. and Steakland, Inc. had their charters forfeited on January 1, 1969, and January 1, 1971 respectively; ² and that Patrick R. Faltico was registered agent for the first of those companies and he was an officer and director of the other two. The pleadings as a whole show that the lease became in default sometime prior to January, 1971. The counterclaim further alleges that the rent default, as well as default in payment of utilities, were the acts of all of the three named corporations and certain named individuals 'jointly and severally.' The counterclaim further alleges that all these parties jointly and severally did designated damage to the premises and also 'removed from the premises one (1) furnace and returned a furnace similar to the one removed, necessitating installation of an overhead blower type furnace with new wiring; removed another furnace from the premisees; removed one (1) 5--ton central air conditioner which was bolted to the floor and hooked to a water tower; snipped wires on flourescent light fixtures, necessitating rewiring and reinstallation of said light fixtures; * * * disconnected a water heater, necessitating reinstallation; * * * left on the premises trash and debris which had to be hauled away; * * * left holes in the wall which had to be repaired and repainted; * * *'.

Plaintiff contends that these allegations fail to allege any attornment by any tenant to the Trimmers and McKinleys subsequent to their purchase of the premises from the original landlord; fail to allege any assignment of the lease to or any assumption of lease obligations by the plaintiff; and fail to allege any agency or successorship by plaintiff to either the original tenant (Kansas City Beef No. 2, Inc.) or its assignee (Steakland, Inc.). Plaintiff's argument proceeds that absent these allegations, there is no basis upon which to hold this plaintiff liable for any breach of the lease obligations.

It is unnecessary to decide whether that argument is sound, for the reason that the counterclaim seeks damages for acts which are wrongful and actionable wholly independent of any lease obligation. Whether or not plaintiff had assumed any of the...