Farmers State Bank v. Place-Wiederholt Chevrolet-Oldsmobile, Inc.

• Decision Date: 12 January 1988
• Docket Number: No. WD,PLACE-WIEDERHOLT,CHEVROLET-OLDSMOBIL,INC,WD
• Citation: 747 S.W.2d 170
• Parties: FARMERS STATE BANK, Respondent, v., and Thomas Place, Appellants. 39015.
• Court: Missouri Court of Appeals

Page 170

747 S.W.2d 170

FARMERS STATE BANK, Respondent, v. PLACE-WIEDERHOLT CHEVROLET-OLDSMOBILE, INC., and Thomas Place, Appellants.

No. WD 39015.

Missouri Court of Appeals Western District.

Jan. 12, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 1, 1988.

Application to Transfer Denied April 19, 1988.

William M. Austin, Kansas City, for appellants.

R. Michael Poland, Cameron, for respondent.

Before KENNEDY, C.J., and LOWENSTEIN and GAITAN, JJ.

KENNEDY, Chief Judge.

Place-Wiederholt Chevrolet-Oldsmobile, Inc., defendant in an action commenced against it by Farmers State Bank, suffered a summary judgment for plaintiff upon Place-Wiederholt's counterclaim against the plaintiff Bank, on the ground that Place-Wiederholt's corporate charter had been forfeited on January 1, 1979, before the filing of the counterclaim on February 12, 1980, and the forfeiture had not been rescinded at the time of the summary judgment on December 12, 1986.

On December 22, 1986, the forfeiture of the corporate charter was rescinded by the secretary of state and the charter was reinstated. On that same day the defendant corporation filed its "Motion for Rehearing". The motion sought reconsideration of the summary judgment. The motion stated that "defendant has initiated and will expedite the procedure to rescind the forfeiture of the corporate charter", and that "counsel anticipates having the charter reinstated prior to the termination of the year 1986". Later, on January 7, 1987, a certified copy of the "Certificate of Rescission of Forfeiture" was filed with the court. It bore the date of December 22, 1986.

On January 9, 1987, the Motion for Rehearing was overruled by the trial court without explanation. Place-Wiederholt has appealed.

Had the charter been reinstated before the summary judgment, there would be no doubt that the case would be governed by A.R.D.C., Inc. v. State Farm Fire and Casualty Company, 619 S.W.2d 843, 846 (Mo.App.1981). The court in that case, considering Section 2 of Section 351.540, added by amendment in 1975, said:

... After a rescission of that forfeiture the legislature has now declared in express terms that the restoration of corporate rights and privileges has retroactive effect and is effective from the date of forfeiture ... While the filing of the suit in the name of the corporation after the forfeiture was denounced, the legislature nevertheless provided that if the forfeiture were rescinded, the suit was the act of the corporation the same as if the forfeiture had not occurred. The effect of the amendment for all practical purposes is to treat the forfeiture as if it had never occurred....

The court in A.R.D.C. reversed a trial court judgment dismissing a suit filed by a corporation during the time its charter was forfeited, but which had been reinstated before the dismissal was entered.

The question in the case before us is whether the granting of the summary judgment cut off the corporation's right to secure rescission of the charter forfeiture and to have the advantage of the curative effect of the 1975 amendment. We hold, for reasons we will presently explain, that the trial court should have vacated its summary judgment upon Place-Wiederholt's Motion for Rehearing.

We observe first that Place-Wiederholt's "Motion for Rehearing" was filed within 15 days of the summary judgment. We treat this motion for a rehearing as a motion for a new trial in a court-tried case. A summary judgment proceeding has been held for other purposes to be a court-tried case. Snowden v. Northwest Missouri State University, 624 S.W.2d 161, 165 (Mo.App.1981). A motion for a new trial in a court-tried case is expressly authorized by Supreme Court Rule 73.01(a)(3).

This Motion for Rehearing sought a reconsideration of the summary judgment on the ground that the corporation, which had been adjudged at the time of the summary judgment to have no corporate existence, actually did (by relation back) exist at the time. To request the court--or it might be better said, to give the court an opportunity--to correct its "error" in granting the summary judgment is an office of the motion for a new trial, Swift v. Bagby, 559 S.W.2d 635, 638 (Mo.App.1977), and was the reason for and the objective of the Motion for Rehearing. It is true that this motion was entitled "Motion for Rehearing" and not "Motion for New Trial". But a pleading is not judged by its title but by its substance and its content. State ex rel. Goldberg v. Darnold, 604 S.W.2d 826, 831 (Mo.App.1980). We may therefore treat the Motion for Rehearing as a motion for a new trial, and (it follows) as an authorized after-trial motion.

Since this was a timely motion for a new trial and therefore an authorized after-trial motion, it was not a mere suggestion to the court. See State ex rel. Duncan v. Mauer, 683 S.W.2d 287, 289 (Mo.App.1984); Rule 75.01. It was a motion which engaged the power of the court and required the court's ruling.

The summary judgment was not yet final when the charter was reinstated. The case was still pending. The reinstatement of the charter closed the gap between the revocation and the reinstatement. Looking back from the point of reinstatement, it was as if the corporate existence had never been interrupted. A.R.D.C., supra at 845-46. The reinstatement of the charter annihilated the ground upon which the summary judgment had been granted. The summary judgment should have been set aside on defendant's motion.

Plaintiff Bank, respondent here, says, however, that § 351.540.2, RSMo 1986, giving retroactive effect to the reinstatement of defendant's charter is unconstitutional as in violation of Art I, § 13, Mo. Const. This prompts us sua sponte to examine our jurisdiction. See Macon-Atlanta State Bank v. Gall, 647 S.W.2d 585 (Mo.App.1983). If this were a case "involving the validity ... of a statute", we would be required to transfer it to the Supreme Court as within its exclusive appellate jurisdiction, Art. V, § 3, Mo. Const. Any such claim, however, in order to divest us of jurisdiction, must be a real and substantial claim. State v. Charity, 637 S.W.2d 319, 321 (Mo.App.1982). Putting aside any other reasons which...