Lake Thunderbird Property Owners Ass'n, Inc. v. Lake Thunderbird, Inc., s. 47902

• Decision Date: 07 November 1984
• Docket Number: 47903 and 47920,Nos. 47902,s. 47902
• Citation: 680 S.W.2d 761
• Parties: LAKE THUNDERBIRD PROPERTY OWNERS ASSOCIATION, INC., et al., Plaintiffs-Respondents, v. LAKE THUNDERBIRD, INC., et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 761

680 S.W.2d 761

LAKE THUNDERBIRD PROPERTY OWNERS ASSOCIATION, INC., et al Plaintiffs-Respondents, v. LAKE THUNDERBIRD, INC., et al., Defendants-Appellants.

Nos. 47902, 47903 and 47920.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 7, 1984.

Frederick H. Schwetye, Union, for Lake Thunderbird, Inc.

Jeffrey J. Kalinowski, St. Louis, for George Hoesch.

Edward C. Cody, St. Louis, for plaintiffs-respondents.

GAERTNER, Presiding Judge.

Lake Thunderbird, Inc. and George R. Hoesch appeal from a September 9, 1983, judgment in favor of Lake Thunderbird Property Owners Association, Inc. (Association), and certain individual lot owners of the Lake Thunderbird Development in Franklin County, Missouri. The judgment is reversed.

The "unusual gallimaufry of facts," in Mr. Hoesch's words, originated in a class action lawsuit filed by the Association and certain individual lot owners in the Lake Thunderbird Development against the defendants Lake Thunderbird, Inc., the developer of the subdivision, Weber Realty Co., the realtor which handled the real estate contracts, and H. Glenn Weber, who was alleged to be Lake Thunderbird, Inc.'s sole stockholder and the owner of Weber Realty Co. The Association, et al., predicated their lawsuit upon the defendants' alleged misrepresentations regarding the development of the residential area surrounding Lake Thunderbird and the failure of the defendants to make various improvements.

The parties compromised the lawsuit by entering into "stipulations." George R. Hoesch signed the stipulations in the signature space for Lake Thunderbird, Inc., but no explanation is given as to his capacity. The trial court incorporated the stipulations into its judgment of September 16, 1975, thus making the stipulation decretal. The decree ordered the defendants, inter alia, to repair an earthen dam at Lake Thunderbird, build a boat dock twenty feet in length, double the size of a sand beach, construct restroom and sanitary facilities and stock the lake with 500 fingerling bass.

Noncompliance by the defendants prompted the plaintiffs to file a motion for contempt. A hearing was held on the motion, at which hearing all parties appeared. The trial court found the defendants in contempt and entered judgment on September 27, 1977, in favor of the plaintiffs for $6,892.50 for attorney's fees and $5,000.00 for failure to repair the leaks in the dam against the defendants jointly and severally; in favor of the Association for $650.00 against Lake Thunderbird, Inc. for unpaid assessments on lots sold by the developer; and in favor of plaintiffs for $2,000.00 against H. Glenn Weber and for $5,000.00 against Lake Thunderbird, Inc. as punitive damages. The trial court also appointed a receiver to take possession and control of Lake Thunderbird, Inc. reserved the right to make further orders and taxed costs to the defendants. No appeal was taken from this judgment.

Despite the September 27, 1977, judgment, the problems surrounding the Lake Thunderbird Development went unresolved. Lake Thunderbird forfeited its corporate charter on January 1, 1979. The court terminated the court-appointed receiver's authority on April 10, 1979. The plaintiffs filed a motion to add as defendants the trustees of the Lake Thunderbird, Inc. and a motion for ancillary relief on July 19, 1979. The statutory trustees were added on July 24, 1979.

The motion for ancillary relief was presented in two counts. Count I requested additional injunctive relief. Count II sought actual and punitive damages for the failure of Lake Thunderbird, Inc.'s trustees to fix the dam, boat dock, and sanitary facilities.

The corporate charter of Lake Thunderbird, Inc. was reinstated on November 6, 1981. The trustees, including George Hoesch, remained in the lawsuit under the July 24, 1979 order.

After numerous conferences and evidentiary hearings, the trial court entered yet another judgment on September 9, 1983. The trial court denied any relief under Count I of the motion for ancillary relief, denied plaintiffs' requests for damages against the receiver, H. Glenn Weber and Weber Realty Co., but granted relief under Count II against George Hoesch and Lake Thunderbird, Inc.:

Judgment is entered for Lake Thunderbird Property Owners Association, Inc., jointly and severally, against Lake Thunderbird, Inc., and George R. Hoesch for $75,000.00 actual damages and $50,000.00 punitive damages under Count II of said Plaintiffs' Motion for Ancillary Relief filed July 29, 1979.

Lake Thunderbird, Inc. and George Hoesch appeal only from the September 9, 1983, judgment. Both contend that the trial court erred in entering the September 9, 1983, judgment because: (1) the trial court lost jurisdiction of the case thirty days after the September 16, 1975, judgment; (2) this action is governed by § 407.110, RSMo.1978, which the proper action was a contempt proceeding. Lake Thunderbird, Inc. contends that the judgment against it was also erroneous because the plaintiffs' motion for ancillary relief contained no allegations against it. George Hoesch argues that the trial court erred in entering judgment against him because he was not named as an individual trustee and he may not be held personally liable as Lake Thunderbird, Inc.'s trustee. Our disposition of these contentions makes it unnecessary to consider additional arguments made by the defendants separately. The first question is whether the trial court lost jurisdiction to control its...