International Motor Co., Inc. v. Boghosian Motor Co., Inc., No. 63110
Decision Date | 07 December 1993 |
Docket Number | No. 63110 |
Citation | 870 S.W.2d 843 |
Parties | INTERNATIONAL MOTOR COMPANY, INC., Plaintiff/Respondent, v. BOGHOSIAN MOTOR COMPANY, INC., Paul Boghosian, John Boghosian, Ann M. Boghosian, Marilyn G. Boghosian, Erwin W. Schwarz, Charles E. Valier, Aristocrat Development Corp., and Michael L. Finocchiaro, Defendants/Appellants, v. Wade E. FUCHS, Third-Party Defendant. |
Court | Missouri Court of Appeals |
David L. Campbell, Campbell & Campbell, St. Louis, for defendants, appellants.
Thomas G. Berndsen, Becker, Dufour, Yarbrough & Berndsen, St. Louis, for plaintiff, respondent.
Defendant Paul Boghosian appeals from a judgment holding him in contempt of court and an order of commitment pursuant thereto. We affirm in part, reverse in part and remand.
In 1988 both plaintiff International Motor Co., Inc. and defendant Boghosian Motor Company, Inc. were Missouri automobile dealerships. Defendant John Boghosian was president of Boghosian Motor Company, Inc. and father of defendant Paul Boghosian. Paul Boghosian was an officer and director of plaintiff from October 1987 to May 1988.
This case concerns a 1986 Mercedes Benz automobile bearing VIN No. WDBCA35D6GA267606. The original Arkansas certificate of title for the vehicle was issued to Mercedes Benz Credit Corp. on October 2, 1986. On June 9, 1987 title was transferred to a Kansas City automobile dealer and then transferred again to Boghosian Motor Co. In October 1987, plaintiff purchased the Mercedes from Boghosian Motor Co. for $37,700 which it paid. At the time plaintiff purchased the vehicle, Boghosian Motor Co. delivered the original certificate of title to plaintiff, but did not endorse the assignment of title on the reverse side.
Paul Boghosian ended his association with plaintiff on April 22, 1988. At that time, plaintiff could not locate the title to the Mercedes. Paul Boghosian told plaintiff's president, Wade Fuchs, that he did not know where the title was. Plaintiff then obtained a replacement certificate of title from Arkansas on May 17, 1988, which listed Mercedes Benz Credit Corp. as the owner. Plaintiff obtained all the necessary endorsements to reconstruct the chain of title through the sale to Boghosian Motor Co.
On May 24, 1988, plaintiff filed a Petition for Permanent Injunction against Boghosian Motor Co., Paul Boghosian, and John Boghosian. In Count I, plaintiff alleged that it had purchased eight automobiles from or through defendants (including the 1986 Mercedes), that Boghosian Motor Co. was to have furnished certificates of title to plaintiff for the vehicles, that at the time Paul Boghosian left plaintiff's employ, the titles disappeared, and that defendants had refused to endorse the duplicate certificates of title. Plaintiff requested the court to order defendants to "execute any and all necessary duplicate Certificates of Title, and/or Powers of Attorney, with respect to the automobiles identified herein...."
In Count II plaintiff alleged that Paul Boghosian was permitted to use plaintiff's demonstrator automobiles, that he took a leave of absence on April 28, 1988, that he had two of plaintiff's vehicles (including the 1986 Mercedes) in his possession, and that he had refused to return those vehicles to plaintiff. For relief in Count II, plaintiff sought delivery of the two vehicles. Plaintiff also filed a motion for Preliminary Injunction at that time, seeking to compel defendants to deliver certificates of title and/or powers of attorney and possession of the vehicles.
The motion was called for hearing on June 8, 1988 after which the court entered the following order:
Plaintiff's action for preliminary injunction called for hearing. Plaintiff appears in person and by counsel. Defendants appear in person and by counsel.
Count I: Upon delivery of duly executed and notarized powers of attorney from Boghosian Motor Co., with respect to the vehicles identified in paragraph 7 of Count I of plaintiff's petition for permanent injunction (upon which the petition for preliminary injunction is partially based), plaintiff shall, and hereby does, dismiss, without prejudice, Count I of the petition for permanent injunction. Provided however, defendants shall perform any and all necessary other acts, if any, to cause the transfer of title of said vehicles from Boghosian Motor Co. to plaintiff.
Count II: As to Count II of plaintiff's petition for permanent injunction (upon which the petition for preliminary injunction is partially based), the same shall be continued, to be reset upon application of either party.
On June 8, 1988 Boghosian Motor Co. supplied plaintiff with a power of attorney allowing plaintiff to sign the replacement certificate on its behalf to show reassignment of the Mercedes. After submitting the replacement Arkansas title with the endorsed assignments to Missouri, plaintiff received an original Missouri certificate of title for the Mercedes on June 17, 1988. The Missouri title showed plaintiff as the owner of the vehicle. However, plaintiff was not in possession of the Mercedes and did not know of its location.
Two years later Paul Boghosian contacted Erwin F. Schwarz 1, an automobile dealer doing business as Erwin F. Schwarz Ltd., and asked him if he would be interested in purchasing the Mercedes. Paul Boghosian took him to a garage in south St. Louis to look at the vehicle. Boghosian Motor Co. sold the Mercedes to Erwin F. Schwarz Ltd. on December 29, 1990 for $22,500. At that time, Boghosian Motor Co. delivered both the original Arkansas certificate of title and the Mercedes to Schwarz. Paul Boghosian endorsed the title on behalf of Boghosian Motor Co. At the time he furnished the title to Schwarz, he told Schwarz that he had lost his dealer's license and wanted the reassignment of the title to Erwin F. Schwarz Ltd. to be dated December 22, 1988. (Boghosian Motor Co.'s dealership license had in fact expired on December 31, 1988.) Schwarz gave Paul Boghosian his company's cashier's check for $22,500 on December 29, 1990, which was deposited in Paul Boghosian's joint checking account with his wife on December 31, 1990. (Erwin F. Schwarz Ltd. subsequently sold the Mercedes to a third party.)
On July 7, 1992, after learning of the sale to Erwin F. Schwarz Ltd., plaintiff filed a motion and show cause order to hold defendants in contempt of court. The motion alleged defendants had violated the June 8 court order by selling the 1986 Mercedes to Schwarz and by negotiating and endorsing the original Arkansas certificate of title to Schwarz. The motion was called for hearing on September 8, 1992. The court issued an Order and Judgment for Contempt finding Paul Boghosian in contempt of court for violating the June 8 order by selling the automobile to Erwin W. Schwartz, d/b/a Erwin F. Schwarz Ltd. and endorsing and physically delivering to Erwin F. Schwarz Ltd. the original Arkansas certificate of title. Paul Boghosian was given 60 days to purge himself of the contempt by paying plaintiff $54,099.50, which represented the amount plaintiff paid for the Mercedes plus interest from the date plaintiff purchased the car. Paul Boghosian failed to purge his contempt by November 10, 1992, on which date the judge entered an Order of Commitment incarcerating him until he purged his contempt.
Paul Boghosian, [hereinafter defendant], having posted bond, appeals from this order and the contempt judgment. He raises multiple assignments of error under four points. We address each point; however, only a portion of his fourth point has merit. There he correctly argues the trial court erred in ordering him incarcerated until he paid the $54,099.50, which payment was not required by the original order.
Civil contempt orders become appealable once they have been enforced, which includes incarceration of the individual pursuant to a warrant of commitment. City of Pagedale v. Taylor, 790 S.W.2d 516, 518 (Mo.App.1990). Generally, in civil contempt cases, a trial court's ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. Bopp v. Bopp, 671 S.W.2d 348, 352 (Mo.App.1984).
In a court tried case, the judgment of the trial court must be sustained unless there is no substantial evidence to support it, it is against the weight of evidence, or it erroneously applies or declares the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The court accepts all evidence and inferences favorable to the judgment and disregards all contrary inferences. Behen v. Elliot, 791 S.W.2d 475, 476 (Mo.App.1990).
For his first point defendant asserts that the trial court lacked jurisdiction to find him in contempt for violating the June 8, 1988 order. He asserts lack of jurisdiction for three independent reasons, which we will discuss in the order raised.
First, defendant argues that plaintiff abandoned its claim for relief on Count I when it filed amended pleadings which did not incorporate or refer to Count I. 2 Defendant relies on the rule that "an amendment to pleadings abandons any prior pleadings not referred to or incorporated into the new pleading," citing Danforth v. Danforth, 663 S.W.2d 288, 294 (Mo.App.1983) and Laux v. Motor Carriers Council of St. Louis, Inc., 499 S.W.2d 805, 809 (Mo.1973). However, these and other cases cited by defendant in his argument address the issue of whether a pleading was before the court to support the introduction of evidence or a judgment. In this case Count I was before the court and had not been abandoned when the court entered its June 8, 1988 order on Count I. The order of contempt was based on a separate pleading, the Motion to Hold Defendants in Contempt of Court. Defendant cites no authority to support his contention that the pleadings on which the original judgment was based...
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