Mayflower Restaurant Co. v. Griego

• Decision Date: 19 August 1987
• Docket Number: Nos. 86-279,86-280,s. 86-279
• Citation: 741 P.2d 1106
• Parties: MAYFLOWER RESTAURANT COMPANY, Appellant (Defendant), Louis P. Kutsulis, et al. (Defendants), v. Henry Richard GRIEGO, Appellee (Plaintiff). Henry Richard GRIEGO, Appellant (Plaintiff), v. MAYFLOWER RESTAURANT COMPANY, a Wyoming corporation, and John Lambousis, Appellees (Defendants), Louis P. Kutsulis, et al. (Defendants).
• Court: Wyoming Supreme Court

Page 1106

741 P.2d 1106

MAYFLOWER RESTAURANT COMPANY, Appellant (Defendant), Louis P. Kutsulis, et al. (Defendants), v. Henry Richard GRIEGO, Appellee (Plaintiff).

Henry Richard GRIEGO, Appellant (Plaintiff), v. MAYFLOWER RESTAURANT COMPANY, a Wyoming corporation, and John Lambousis, Appellees (Defendants), Louis P. Kutsulis, et al. (Defendants).

Nos. 86-279, 86-280.

Supreme Court of Wyoming.

Aug. 19, 1987.

Don W. Riske, Cheyenne, for appellant Mayflower Restaurant Co. in No. 279, and appellees John Lambousis and Mayflower Restaurant Co. in No. 280.

Daniel E. White of Vines, Gusea & White, P.C., Cheyenne, for appellant Henry Richard Griego in No. 280, and appellee Henry Richard Griego in No. 279.

Before BROWN, C.J., and THOMAS, CARDINE and URBIGKIT, JJ., and RAPER, J., Retired.

BROWN, Chief Justice.

This case involves two appeals arising from personal injuries sustained in a bar room fracas. We will consider both appeals together.

Appellant, Mayflower Restaurant Company, (Mayflower), in case No. 279 raises the following issues:

"1. Whether the trial court erred in holding that appellant Mayflower Restaurant Company was liable, as a matter of law, for the acts and omissions of the agents and employees of the Mayflower Bar at the time of appellee's injuries."

"2. Whether sufficient evidence exists in the record to support the verdict against appellant Mayflower Restaurant Company."

Griego, as appellant in case No. 280, urges the following issues:

"I. Whether the trial court erred in granting summary judgment to John Lambousis.

"Argument A. Whether the trial court erred in determining, as a matter of fact and law, that Lambousis should not be considered to be a shareholder of the Mayflower Restaurant Company in the event the separate existence of the corporation is disregarded.

"Argument B. Whether the trial court erred in determining, as a matter of fact and law, that Lambousis should not be considered to be an owner or occupier of the real property and improvements where the Mayflower Cafe and Tavern is located.

"II. Whether the trial court erred in deleting the punitive damages award assessed against the Mayflower Restaurant Company."

Appellees, John Lambousis and Mayflower, raise an additional issue:

"Whether appellee John Lambousis is entitled to costs and attorney's fees under Wyoming Rules of Appellate Procedure 10.05."

We affirm in all respects.

On the evening of December 28, 1984, Henry Richard Griego, entered the Mayflower Cafe and Tavern located in Cheyenne, Wyoming. From the bacchanalians gathered at the Mayflower there emerged one, Allen Kinnison, who approached Griego several times threatening him in a loud and vulgar manner. On one occasion Kinnison grabbed Griego's shirt. In order to break up Griego and Kinnison, Rebecca Kister Kimbrough, a bar patron, asked Griego to dance. Kinnison withdrew as Griego and Kimbrough went to dance.

After the waltz was over, Griego was approached again by defendant Kinnison who was accompanied by defendant Robert Slater and others. Although the testimony differs, the end result of the confrontation was an altercation. Mayflower bouncers pulled Kinnison and an unidentified man off Griego and broke up the affray. ¹ The bouncers then ushered Griego out of the bar although he was visibly groggy. Griego lost memory of events that occurred that evening. Eventually, Griego's head cleared when he was a short distance from the Mayflower Bar, and he was taken to the emergency room of Memorial Hospital by two unidentified persons.

At the hospital Griego was diagnosed as suffering from two fractures of the jaw bone. Additionally, he had numerous lacerations and contusions of the mouth and left eye. As a result of injuries sustained, Griego underwent open reduction surgery to repair the mandibular fractures and a metal compression plate was affixed to the jaw. Further, Griego suffered a loss of feeling or numbness in his lower lip and chin area.

Because of issues raised in this appeal, the history of the Mayflower Restaurant Company is significant. On July 22, 1976, the Mayflower Restaurant Company was incorporated under the laws of the state of Wyoming by defendants Kutsulis and Lambousis for the purpose of operating the Mayflower Cafe and Tavern. The corporation issued 10,000 shares of stock--4,900 shares to Kutsulis and 5,100 shares to Lambousis. On July 17, 1980, Lambousis and Kutsulis entered into two agreements under which Lambousis sold his interest to Kutsulis, including real property, improvements, and stock in the Mayflower corporation. Among other things, the agreements provided that the stock certificate representing Lambousis' 5,100 shares be held in escrow pending fulfillment of Kutsulis' obligations under the agreement.

On February 2, 1984, the corporate charter of the Mayflower was revoked by the Secretary of State for its failure to file annual reports and pay annual license tax fees for two consecutive years. After Griego's injuries on March 15, 1985, the corporate charter of the Mayflower was reinstated.

On March 26, 1985, plaintiff Griego filed a complaint against Louis P. Kutsulis d/b/a the Mayflower Cafe and Tavern, Robert Slater and Allen Kinnison for injuries sustained in the assault at the Mayflower Bar. Later, Griego twice amended his complaint to add Mayflower Restaurant Company, a Wyoming corporation, and John Lambousis as party defendants.

On October 18, 1985, Mayflower filed its first motion for summary judgment contending that it could not be sued because it had no legal existence on the date of the incident. This motion was denied. On April 30, 1986, a second motion for summary judgment was filed by Mayflower and John Lambousis. Mayflower asserted the existence of two separate entities and Lambousis claimed nonliability because he was neither an owner nor stockholder in Mayflower at the time of the altercation. On August 4, 1986, the trial court found that

" * * * Defendant John Lambousis is not, as a matter of law, liable to Plaintiff by virtue of his status as a contract vendor of the real property on which the Mayflower Bar is located or by virtue of his status as a contract vendor of his shares of stock in Defendant Mayflower Restaurant Company * * *."

The court granted summary judgment in favor of defendant Lambousis, and also found that " * * * the purchase of Defendant Mayflower Restaurant Company after the date of Plaintiff's injuries, does not relieve Defendant Mayflower Restaurant Company from tort liability incurred before the date of purchase * * *."

Trial by jury commenced on August 19, 1986. The jury found generally in favor of plaintiff Griego assessing fault as 25 percent against Robert Slater, 25 percent against Allen Kinnison and 50 percent against Mayflower and set compensatory damages at $25,000. The jury also assessed punitive damages against Mayflower in the amount of $6,000. Judgment on the jury verdict was filed on September 3, 1986. ²

On September 4, 1986, Mayflower moved for judgment notwithstanding the verdict, for new trial and for remittitur. In an order filed on October 21, 1986, the trial court held that sufficient evidence existed to support the jury's finding that Mayflower was negligent and that plaintiff Griego's damages were proximately caused by such negligence but that the evidence was insufficient to support the jury's award of punitive damages against Mayflower. Both Mayflower and Griego appealed.

SUMMARY JUDGMENT

In its first argument, appellant Mayflower contends that Louis Kutsulis was the sole proprietor of the Mayflower Bar since Mayflower's corporate charter had been revoked at the time of Griego's injuries. Hence, Mayflower contends it was not a legal entity at the time of injury to Griego, and therefore, the trial court erred in holding Mayflower liable, as a matter of law, for any negligent acts or omissions of the agent or employees of the Mayflower Bar.

Our oft-cited standard of review on appeal is that summary judgment properly issues only upon the dual finding that no genuine question of material fact exists and that the prevailing party is entitled to judgment as a matter of law. Rompf v. John Q. Hammons Hotels, Inc., Wyo., 685 P.2d 25 (1984); and Matter of Estate of Brosius, Wyo., 683 P.2d 663 (1984). According to Rule 56(c), Wyoming Rules of Civil Procedure, a summary judgment

" * * * shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * " The purpose of summary judgment is to eliminate formal trials where only questions of law are involved, Johnson v. Soulis, Wyo., 542 P.2d 867 (1975), and to pierce the formal allegations and reach the merits of a controversy where no material issue of fact is present. Siebert v. Fowler, Wyo., 637 P.2d 255 (1981).

The material facts are not in dispute. The parties agree that Mayflower's corporate charter was revoked on February 2, 1984; that the injuries sustained by Griego in the Mayflower Bar occurred December 28, 1984; and that Mayflower's corporate charter was reinstated on March 15, 1985. Therefore, the question is whether or not a corporation may be held liable for negligent acts which occur during the interim between the forfeiture and reinstatement of the corporate charter.

We approach this problem by first considering applicable state statutes giving the words employed by the legislature their plain and ordinary meaning in an attempt to construe legislative intent. Additionally, we read pertinent provisions together in an effort to determine legislative intent in enacting the law. Sections 17-2-102(a) and 17-2-103, W.S.1977, provide in part:

Section 17-2-102(a):

"If any domestic corporation shall for two (2) consecutive years neglect or refuse to file annual reports and pay the license...