Fisher v. Spray Planes, Inc.

• Decision Date: 31 July 1991
• Docket Number: No. 58884,58884
• Citation: 814 S.W.2d 628
• Parties: J. Cecil FISHER, et al., Appellants, v. SPRAY PLANES, INC., et al., Respondents.
• Court: Missouri Court of Appeals

Page 628

814 S.W.2d 628

J. Cecil FISHER, et al., Appellants, v. SPRAY PLANES, INC., et al., Respondents.

No. 58884.

Missouri Court of Appeals,

Eastern District,

Division Two.

July 31, 1991.

Application to Transfer Denied Sept. 10, 1991.

Siegfreid, Runge, Leonatti, Pohlmeyer, Hagan & Seigfreid, Mexico, for appellants.

Oliver, Walker, Carlton & Wilson, Columbia, Casserly & Jones, Clayton, for respondents.

AHRENS, Judge.

In this action for costs, appellants, J. Cecil Fisher, Billy Fisher, Lena Fisher and Sue Fisher allege the trial court erred in sustaining respondents' application for execution for costs filed pursuant to Rule 76.01 and § 514.170 RSMo 1986.

Appellants raise five points of error. First, the trial court erred in denying their motion to quash respondents' application for execution, because respondent Spray Planes, Inc. had forfeited its corporate charter prior to filing the application and, therefore, it had no standing or capacity to sue, and its application failed to state a claim. We disagree, because the trustees succeeded to the interests of the corporation by operation of law, and appellants waived their claim of lack of capacity to sue. Second, the trial court erred in granting respondents' application for execution, because there was no underlying judgment, order or decree assessing costs against appellants. We disagree because no such judgment, order, or decree was necessary. Third, the trial court erred in overruling appellants' motion to quash the application for execution because appellants dismissed the underlying lawsuit without prejudice and respondents were not the "prevailing party." We disagree, because § 514.170 permits respondents to recover their costs upon appellants' dismissal of their suit.

Fourth, the trial court erred in failing to quash the application for execution, because the trial court lacked jurisdiction over the matter. We disagree, because the costs taxed against appellants were definite, fixed by statute, and required no judicial investigation and determination. Fifth, the trial court erroneously overruled appellants' motion to quash the application because respondents failed to sustain their burden of proof. We agree, because there was no evidence indicating which depositions were requested and costs therefor actually paid by respondents.

Background

Appellants filed a civil action in Monroe County Circuit Court alleging their property was damaged and they suffered personal injuries from exposure to the toxic chemical Paraquat when it was sprayed by aerial application to a neighboring field owned by Charles O'Laughlin.

In the original petition, appellants named as defendants: the owner of the neighboring field; the pilot who applied the chemical; the lessor of the airplane; and Spray Planes, Inc., the lessee of the airplane. The company alleged to have arranged for the spraying of the neighboring field was subsequently joined as a defendant as was Chevron Chemical Company, the alleged manufacturer of the Paraquat.

Thereafter, some defendants entered into a settlement with appellants with each party bearing its own costs. Appellants voluntarily dismissed their cause of action without prejudice against the remaining defendants, including Spray Planes and Chevron Chemical, pursuant to Rule 67.01. Judge McKenzie entered an order which purported to overrule the appellants' motion to dismiss. Appellants filed a petition for writ of prohibition which was granted by the Supreme Court of Missouri. State ex rel. Fisher v. McKenzie, 754 S.W.2d 557 (Mo. banc 1988).

Thereafter, appellants filed the lawsuit in federal district court against the remaining nonresident defendants. Fisher v. Chevron Chemical Co., 716 F.Supp. 1283 (W.D.Mo.1989). Appellants subsequently dismissed the lawsuit.

The Monroe County circuit clerk prepared a cost bill on November 15, 1988. On May 17, 1990, respondent Spray Planes filed an application for execution in Monroe County Circuit Court for unpaid court costs of $4,203.32 arising from appellants' earlier suit in that court. The major portion of the costs, $4,126.42, was for twenty-two depositions. Appellants filed a motion to stay and/or quash respondents' application for execution. After a hearing, at which respondent Chevron Chemical joined in the application for writ of execution, the trial court overruled appellants' motion, sustained respondents' application, and assessed costs against appellants. This appeal followed.

I. Forfeiture of Corporate Charter

Appellants first assert the trial court erred in overruling their motion to quash respondents' application for execution, because Spray Planes had forfeited its corporate charter on January 1, 1983. Appellants contend the corporate entity had no capacity to sue, and only the statutory trustees had standing to bring any action on behalf of the corporation. This point is directed solely to Spray Planes. Appellants make no claim that Chevron Chemical lacked standing or capacity to seek recovery of its costs.

Here, appellants filed their first petition against Spray Planes on March 29, 1982. Spray Planes' corporate charter was forfeited on January 1, 1983. Appellants filed a fourth amended complaint against respondent Spray Planes on October 3, 1985, some two and a half years following the forfeiture. On May 17, 1990 respondents filed their application for execution to collect unpaid court costs. Appellants filed a motion to stay and/or quash the application on May 24, 1990, but did not deny Spray Planes' corporate existence or assert that Spray Planes did not have capacity to proceed with the application for execution. Appellants displayed a Certificate of Forfeiture for the first time in their brief on appeal. Normally we do not consider exhibits not on record before the trial court. However, we consider it here, because respondents admitted on appeal the forfeiture of the charter.

Appellants' contention that, under § 351.525 RSMo 1986, only the statutory trustees had standing to pursue the action to recover costs is without merit. Section 351.525 names the trustees of the corporation as the sole parties entitled to sue for and recover any debts and property due the corporation when the corporation's charter has been forfeited. § 351.525(6). Rule 52.13(e), however, provides: "When a corporation has been sued and served with a process or has appeared while in being, and is thereafter disolved or its charter forfeited, the action shall not be affected thereby ...." Accordingly, under § 351.525, "[t]he statutory trustees succeed to the interest of the corporation by operation of law " (emphasis added). Sab Harmon Indus. v. All State Bldg. Sys., 733 S.W.2d 476, 483 (Mo.App.1987).

Spray Planes' application for execution of costs was a continuation of the lawsuit initiated by appellants prior to the forfeiture of Spray Planes' corporate charter. By operation of law, Spray Planes' statutory trustees succeeded to the interest of the corporation, see Sab Harmon, 733 S.W.2d at 483, and those trustees were entitled to prosecute the execution for costs. See Vetter & Assoc., Inc. v. Dimarco Corp., 733 S.W.2d 459, 462 (Mo.App.1986). Appellants' display of the certificate of forfeiture in appellants' brief on appeal sufficed for an order of substitution of Spray Planes' trustees for the corporation. See Sab Harmon, 733 S.W.2d at 483. Therefore, substitution of the statutory trustees for Spray Planes can be made on the record by the trial court on remand. See Vetter, 733 S.W.2d at 462. We find no error in the denial of appellants' motion to quash for lack of standing or failure to state a claim.

Appellants argue that because respondent Spray Planes had no legal capacity to sue and did not allege its corporate capacity to sue in its application, the application was a nullity. We disagree.

A claim that a suit should have been filed in the name of certain statutory trustees, rather than in the name of a defunct corporation, is waived if it is not raised by pleading or motion in accordance with Rules 55.13 and 55.27(g)(1). Executive Jet Management and Pilot Service, Inc. v. Scott, 629 S.W.2d 598, 611 (Mo.App.1981).

Under Rule 55.13, the issue of corporate capacity is not properly raised unless it is asserted by a "specific negative averment." Pemiscot County Memorial Hosp. v. Bell, 770 S.W.2d 499, 502 (Mo.App.1989). Since appellants failed to object to Spray Planes' legal capacity at the circuit court in the motion to quash, and did not object at the hearing on the motion, Spray Planes' capacity to sue cannot be raised for the first time on appeal. Id.

II. No Underlying Judgment, Order or Decree

Appellants' second point asserts the trial court erred in granting respondents' application for execution because there was no underlying judgment, order or decree entered by the trial court assessing costs against appellants. Appellants contend § 517.170 and Rule 76.02 required the trial court to enter an order assessing costs against appellants before those costs could be taxed against them. Appellants' argument is without merit.

Section 514.170 provides in pertinent part: "Upon the plaintiff dismissing his suit ... the defendant shall recover against the plaintiff his costs." Section 514.260 RSMo 1986 imposes a duty on the clerk to tax costs: "The clerk shall tax and subscribe all bills of costs arising in any cause or proceedings instituted or adjudged in the court of which he is the clerk, agreeably to fees which shall, for the time being, be allowed by law, and shall in no case allow any item or charge, unless the service for which it was made was actually performed in the cause." § 514.260. This mandate leaves no judicial act to be done by the trial court. Pursuant to § 514.170 and § 514.260, no underlying order was necessary to confer authority on the clerk to tax costs and issue a cost bill upon appellants' voluntary dismissal of the case.

The costs involved here were for charges of co...