Koplar v. Rosset
| Citation | 233 S.W.2d 1,360 Mo. 1201 |
| Decision Date | 11 September 1950 |
| Docket Number | No. 41627,No. 2,41627,2 |
| Parties | KOPLAR v. ROSSET et al |
| Court | Missouri Supreme Court |
J. L. London, St. Louis, for appellants.
Samuel H. Liberman, St. Louis, for respondents Barnet L. Rosset and Metropolitan Trust Co.
Paul M. Peterson, William H. Becker, Columbia, for respondent Boyle G. Clark, individually and as voting trustee.
BOHLING, Commissioner.
This is an appeal from an order after final judgment in Division No. 3 of the Circuit Court of the City of St. Louis dismissing exceptions by Nat Koplar and Marmaduke Apartments, Inc., to a report of the Metropolitan Trust Company, a corporation, as trustee under a deed of trust and chattel mortgage of Marmaduke Apartments, Inc., and a report by Barnet L. Rosset and Boyle G. Clark as voting trustees appointed by a bondholders committee representing bonds secured by said mortgage. The amount involved exceeds $7,500. We sometimes designate the parties as exceptors and as defendants, repectively. The proceeding is an outgrowth of Koplar v. Rosset, 355 Mo. 496, 196 S.W.2d 800, and Koplar v. Rosset, 358 Mo. 350, 214 S.W.2d 417.
Prior events resulted on May 6, 1936, in a judgment of foreclosure in Division No. 2 of the Circuit Court of the City of St. Louis of a deed of trust and chattel mortgage securing a $475,000 bond issue executed by the Grand Boulevard Investment Company against the Marmaduke Apartments of St. Louis, Missouri. A general bondholders protective committee, with the Metropolitan Trust Company, a corporation, of Chicago, Illinois, as one of the depositaries had been organized. Barnet L. Rosset owned practically all the stock of the Metropolitan Trust Company. The bondholders protective committee intervened and secured the approval of the court to its deposit agreement and plan of reorganization. The property was sold and the reorganization plan was consummated July 1, 1936.
(The historical facts of record here outlined for an understanding of the instant case are detailed in Koplar v. Rosset, 355 Mo. 496, 196 S.W.2d 800, and well may be read.)
Under the reorganization plan the Marmaduke Apartments, Inc., a Missouri corporation, was organized to hold title and operate the apartments; and its 10,663 shares of capital stock were issued to the trustees of a voting trust provided for by the plan. The corporation issued $426,500, 5%, first mortgage bonds, dated July 1, 1936, payable July 1, 1951, and the Metropolitan Trust Company was named trustee and Hugo Monnig was named cotrustee in the deed of trust and chattel mortgage securing said indebtedness. The stock of the Marmaduke Apartments, Inc., was voted by voting trustees. The participating bondholders, holding voting trust certificates marked 'A' representing 40% of the stock, named two voting trustees, to-wit: Barnet L. Rosset and Boyle G. Clark; and the Grand Boulevard Investment Company, holding voting trust certificates marked 'B' representing 60% of the stock, named one voting trustee, to-wit: Otto J. Dickmann, who was succeeded by Lawrence E. Mahan in October, 1943.
The trust agreement was to the effect, Sec. 25, that no liability attached to any trustee for anything save his own 'willful misconduct or gross negligence.'
Nat Koplar acquired all of the 'B' voting trust certificates and also some of the bonds and class 'A' certificates, and in 1944 submitted a plan for refinancing the corporation's bonds. The trustees and directors refused to submit this plan to the security holders. Instead, they passed a resolution for the sale of the property. Koplar thereupon filed suit against Rosset and Clark, and the Metropolitan Trust Company, individually and as trustees aforesaid; Marmaduke Apartments, Inc., Mahan and Monnig--the last three in order to have all parties before the court. A principal object of this suit was the removal of Rosset and Clark as voting trustees and the Metropolitan Trust Company as trustee under the deed of trust and chattel mortgage.
This suit resulted in findings in said Division No. 3 on July 13, 1945, generally stated, in favor of Koplar and against Rosset and Clark and the Metropolitan Trust Company. In greater particular and so far as material here the court found that the plan of refinancing submitted by Koplar was workable and the refusal of Rosset and Clark to submit the plan was unwarranted and, having acted against the best interests of the beneficiaries, they should be removed and Thomas F. McDonald and Paul J. Kaveney appointed in their stead; that 'the court does not feel warranted in making an order appointing a receiver and for an accounting, although the expenses incurred in the handling of the property in question have materially increased over the amounts paid during the receivership mentioned in evidence, except, however, as provided in paragraphs 10 and 11 of this decree'; that Rosset should refund an annual salary of $1,000 received for five years as President of the Marmaduke Apartments, Inc. (paragraph 10 aforesaid); that the Metropolitan Trust Company was dominated by Rosset and should be removed as trustee under the deed of trust and as depositary and registrar, and the St. Louis Union Trust Company was appointed to act in its stead (paragraph 11 aforesaid); that Lawrence E. Mahan, the third voting trustee, Hugo Monnig, the co-trustee under the deed of trust, and Nat Koplar, plaintiff, had incurred liabilities for expenses and attorney fees for the benefit of Marmaduke Apartments, Inc., in the litigation and, after a hearing to determine proper allowances, they would be 'charged against such trust estate and paid out of the funds in the hands of the successor voting trustees'; that Rosset and Clark and the Metropolitan Trust Company should be enjoined from acting in their respective trust capacities; that said defendants should surrender and deliver the books, records et cetera in their respective possessions as such trustees et cetera to their successors, and should account for any expenses and legal fees in the litigation charged against Marmaduke Apartments, Inc. (paragraph 16 aforesaid); that the costs should be adjudged against Rosset and 'that the court should retain jurisdiction for the purpose of carrying out this decree and making allowances to said counsel as aforesaid.'
The decree followed the foregoing findings, and closed with the following:
This decree was affirmed in toto September 9, 1946, Tipton, J., writing for court en banc (355 Mo. 496, 196 S.W.2d 800), and our mandate issued on December 17, 1946.
On May 9, 1947, on the application of McDonald and Kaveney, the newly appointed voting trustees, the trial court ordered applications for allowances for attorney fees and expenses to be filed by May 16, 1947; and on June 20, 1947, after a hearing on May 27th, the court allowed fees totaling $27,640.57 and expenses totaling $2,991.30, a grand total of $30,631.87, and decreed that the same be paid by Marmaduke Apartments, Inc. No appeal was taken. Marmaduke Apartments, Inc., paid this $30,631.87, and satisfaction was acknowledged by the respective claimants on July 7, 1947.
On July 16, 1947, Rosset and Clark made a report and paid to the clerk of the court $4,566.24, the same being the amount claimed by the successor trustees as due under the judgment and decree of July 13, 1945. There was also paid into the court at the same time the $5,000 ordered to be refunded by Rosset, together with interest, $602.47. The total payments were $10,168.71. Rosset paid the costs.
The Metropolitan Trust Company made a report on said date showing compliance with the judgment and decree of July 13, 1945, by making delivery and taking a receipt for the books, records, documents and other property of the Marmaduke Apartments, Inc., in its possession.
On August 20, 1947, leave having been obtained, Koplar, the plaintiff, and Marmaduke Apartments, Inc., one of the defendants, filed exceptions to the report of the Metropolitan Trust Company and to the report of Rosset and Clark. These exceptions, seven in number, need not be developed in detail as the court, upon a hearing, found defendants had complied with the decree of July 13, 1945, and the existing controversy involves matters embraced within what exceptors designate as their 'supplemental petition.'
On September 10, 1947, said exceptors asked leave to file a 'supplemental petition,' lodging the petition with the clerk and serving notice upon defendants thereof. Defendants appeared specially and attacked the jurisdiction of the court to entertain said supplemental petition; and on February 24, 1948, after hearing and argument, the court was of the opinion it was 'without jurisdiction in this case to try the issues proposed in the supplemental petition tendered herein,' and denied leave to file the same. An appeal was taken by the exceptors from this order and, it appearing upon submission that the original exceptions were undisposed of, we ruled the appeal was premature and dismissed it. Koplar v. Rosset, 358 Mo. 350, 214 S.W.2d 417, 419.
The supplemental petition specifically alleged: 'That all of the acts complained of herein occurred since the rendition of the said decree of July 13, 1945.' For...
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