Mark Twain Elec., Inc. v. Yalem
| Decision Date | 25 February 1992 |
| Docket Number | No. 60299,60299 |
| Citation | 825 S.W.2d 366 |
| Parties | MARK TWAIN ELECTRIC, INC., Appellant, v. James P. YALEM and Ross Boring, Respondents. |
| Court | Missouri Court of Appeals |
Canice Timothy Rice, Jr., St. Louis, for appellant.
Gallop, Johnson & Neuman, Charles A. Seigel, III, Tod J. O'Donoghue, St. Louis, for respondents.
Mark Twain Electric, Inc. (Mark Twain), brought a suit on account for materials and labor against James P. Yalem, Ross Boring and Arthur E. Prell as statutory trustees of Big Four Manufacturing, Inc. (Big Four). Prell was never served; he no longer is a party to this litigation. On the morning of trial, the court sua sponte added Big Four as a party defendant and dismissed the suit against Yalem and Boring. It heard evidence on the underlying claim and entered judgment in favor of Mark Twain against Big Four. Mark Twain appeals the court's disposition of defendants, Yalem and Boring. We reverse.
The petition filed May 3, 1989, sufficiently pled a cause of action against Yalem and Boring as statutory trustees. It further alleged: (1) Big Four forfeited its corporate charter on January 1, 1985; (2) Yalem, Boring and Prell were the last known officers and directors of the corporation; and, (3) they are liable for the debt as the statutory trustees of the forfeited corporation pursuant to § 351.525 RSMo Cum.Supp.1990. Defendants both motioned for summary judgment claiming they were not the statutory trustees because they were not the officers and directors of Big Four at the time of forfeiture. The court overruled both motions.
Prior to hearing plaintiff's evidence on the day set for trial the court announced that a jury trial on the issue of the status of Yalem and Boring as statutory trustees of Big Four would be "an exercise in futility when what we are really after is what are the corporate assets, who holds the corporate assets." The court refused to decide that issue. It then sua sponte added Big Four as a party defendant and indicated it would hear the evidence. Mark Twain offered into evidence a certificate from the secretary of state which stated the last known officers and directors of Big Four were Yalem, Boring and Prell. 1 Yalem and Boring offered affidavits which indicated they resigned as officers and directors before forfeiture.
The court then stated:
THE COURT: Well, I am not going to render a judgment against Yalem and Boring as Statutory Trustees, because I would take up the Motion for Summary Judgment Against [sic] and rule the Motion for Summary Judgment.
But rather than do that, my intention is to render a judgment against the corporation so that you can pursue corporate assets.
Then I was going to dismiss as to the individuals without prejudice. (Our emphasis).
Plaintiff objected to dismissal of the individual defendants. The court indicated it was not deciding whether they do or do not have any corporate assets of Big Four. If they did, the court stated a garnishment or execution will lie against them. The court then received Mark Twain's evidence as to the debt on the underlying claim. Prior to rendering judgment the court stated: "In view of the evidence in the file indicating a sale of all corporate assets by respondents [Yalem and Boring] prior to forfeiture no judgment could be rendered against them."
The order entered by the trial court is as follows:
Plaintiff appears by attorney Tim Rice. Defendants Yalem and Boring appear by attorney Charles Seigel. Court orders Big Four Manufacturing, Inc. joined as party defendant. Court dismisses cause as to defendants Yalem, Boring and Prell. Evidence adduced. Judgment rendered and entered in favor of plaintiff and against defendant Big Four Manufacturing, Inc in the sum of $16,909.74, plus interest at 9% per annum from October 24, 1984, being 9,938.09, aggregating $26,847.83 and costs.
On appeal it is claimed the court erred in granting summary judgment in favor of Yalem and Boring because: (1) there was no summary judgment motion before the court at that time; (2) no notice of the court's intent to reconsider a prior order denying summary judgment deprives defendants of due process; and (3) there is a genuine issue of material fact as to whether Yalem and Boring are the statutory trustees of Big Four.
It is not clear why both Mark Twain and defendants have focused on errors related to summary judgment. The order actually entered by the trial court was a dismissal as to Yalem and Boring. The same was recorded on the docket sheet. Furthermore, Mark Twain's notice of appeal states the order appealed from was an "order dismissing claims against Yalem and Boring." However, all the briefs refer solely to summary judgment, and during argument the parties continued to assume the court entered a summary judgment.
It was suggested during argument that the trial court rendered summary judgment because it considered more than the pleadings. Under certain circumstances that may indicate a summary judgment. See Rule 55.27(a) & (b). However, a correct statement of the applicable rule is where matters outside the pleadings are presented and considered by the court on a motion to dismiss it in effect becomes one of summary judgment. Terre Du Lac Association, Inc. v. Terre Du Lac, Inc., 737 S.W.2d 206, 210 (Mo.App.1987) (Our emphasis). Rule 55.27(a) recognizes a ruling based on the merits is in the nature of summary judgment. In this case the court sua sponte dismissed; it did not reach the merits. It failed to determine defendants' status as statutory trustees in a situation where statutory trustees are the only proper defendants to the litigation. See Goff v. Schlegel, 748 S.W.2d 813, 818 (Mo.App.1988).
Plaintiff's appeal issues relate only to error in entering a summary judgment. The first two points raise issues relating to the procedural requirements surrounding summary judgment. The third point asks this court to review the trial court's determination that a specific material factual dispute did not exist. However, it is clear the court did not reach the merits and expressly did not enter summary judgment against defendants Yalem and Boring. It is therefore unnecessary to decide any of Mark Twain's three points on appeal.
This, however, does not dispose of the appeal. No one, at the trial level or in their briefs on appeal, question the propriety of the court's addition of Big Four as a defendant and that a judgment could be entered against the corporation. The court dismissed the individual defendants only because it apparently...
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Korte Trucking Co. v. Broadway Ford Truck Sales, Inc., s. 64530
...brought and concluded by a dissolved corporation prior to any rescission of forfeiture is a nullity. Id.; Mark Twain Electric, Inc. v. Yalem, 825 S.W.2d 366, 368 (Mo.App.1992). See also A.R.D.C., Inc. v. State Farm Fire & Cas. Co., 619 S.W.2d 843, 848 (Mo.App.1981) (Clark, J. Because L & R ......
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Christian v. College Boulevard Nat. Bank, 92-2152-JWL.
...§ 351.525 actually continues to apply to CSI because it was dissolved before the repeal of the statute. It cites Mark Twain Elec., Inc. v. Yalem, 825 S.W.2d 366 (Mo.App.1992) as supporting this proposition. The court disagrees with that conclusion. In Mark Twain the court held that the prop......
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U.S. Cent. Underwriters Agency, Inc. v. Manchester Life and Cas. Management Corp.
...of a forfeited corporation must be brought in the name of the defunct corporation's statutory trustees. Mark Twain Electric, Inc. v. Yalem, 825 S.W.2d 366, 368 (Mo.App.1992); J.M. Morris Construction Co. v. Mid-West Precote Co., 613 S.W.2d 180, 181 (Mo.App.1981); Moore v. Matthew's Book Co.......
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Hutchings v. MANCHESTER LIFE AND CAS. MANAGEMENT
...longer has the capacity to sue or be sued; the only proper parties to litigation are the statutory trustees. Mark Twain Elec., Inc. v. Yalem, 825 S.W.2d 366, 368-69 (Mo.Ct.App.1992). The amended complaint contains no allegation that plaintiff is the statutory trustee for Plaintiff's claims ......