Ozark Mountain Timber Products, Inc. v. Redus

• Decision Date: 03 March 1987
• Docket Number: No. 14517,14517
• Parties: OZARK MOUNTAIN TIMBER PRODUCTS, INC., Plaintiff-Respondent, v. Ben REDUS and Westbend Hardwood Lumber, Inc., Defendants-Appellants, v. N. Eugene BREUER, Third-Party Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 640

725 S.W.2d 640

OZARK MOUNTAIN TIMBER PRODUCTS, INC., Plaintiff-Respondent, v. Ben REDUS and Westbend Hardwood Lumber, Inc., Defendants-Appellants, v. N. Eugene BREUER, Third-Party Defendant-Respondent.

No. 14517.

Missouri Court of Appeals,

Southern District,

Division One.

March 3, 1987.

Frederick W. Martin III, West Plains, for defendants-appellants.

Richard H. Stevens, Lewis & Stevens, and Mark C. Fels, Poole, Smith & Wieland, P.C., Springfield, for plaintiff-respondent and third-party defendant-respondent.

CROW, Chief Judge.

Defendants Ben Redus ("Redus") and Westbend Hardwood Lumber, Inc. ("Westbend") appeal from a judgment against them on a four-count petition filed by Ozark Mountain Timber Products, Inc. ("OMTP"). Defendants maintain that the trial court erred in allowing their attorney to withdraw two weeks before trial, and that the evidence was insufficient to support the judgment on three of the counts.

By defendants' answer to the petition, the following facts were admitted.

Westbend, a California corporation, is licensed to do business in Missouri. Redus, president of Westbend, was at all pertinent times acting within the scope and course of his employment by Westbend. Beginning in June, 1981, OMTP, at the request of Westbend, performed "kiln drying and surfacing" on lumber owned by Westbend, and also provided storage and insurance for such lumber.

Having noted those facts, we now focus on the individual allegations of the separate counts.

Count I averred that the prices charged by OMTP for the above-mentioned services were "understood and agreed to" by Westbend, were "reasonable and proper," and were "to be paid on demand." Count I further alleged that as of August 9, 1982, Westbend owed OMTP $10,859.70 for such services, and that OMTP demanded payment of that sum on that date, but Westbend failed and refused to pay said sum then or at anytime thereafter. Count I prayed for judgment against Westbend, alone, for $10,859.70, with interest from August 9, 1982.

Westbend answered Count I by denying its allegations.

Count II pleaded that in February, 1982, OMTP and Redus agreed that Westbend would pay OMTP for storage of Westbend's lumber before such lumber was removed from OMTP's possession, and that none of Westbend's lumber would be removed without payment. Count II added that during the period from July 26 through August 2, 1982, Westbend, at Redus' direction, removed over 100,000 feet of its lumber from OMTP's possession, giving OMTP a $2,669.55 check on July 27, and a $3,400.00 check on July 29. Both checks, said Count II, were drawn by Redus on a bank account of Westbend; upon presentation to the drawee bank, both checks were dishonored "due to insufficient funds." Count II asserted that OMTP released the lumber to defendants relying on Redus' representations that the checks would be paid upon presentation. Defendants, according to Count II, knew said representations were false, and intended that OMTP rely thereon in releasing said lumber. Count II prayed for judgment against both defendants for $6,069.55, the sum of the two checks.

Defendants' answer admitted delivery of the two checks to OMTP, admitted both checks were dishonored because of insufficient funds, and denied the other allegations of Count II.

Count III of the petition repeated the allegations of Count II, and added that the conduct of defendants was willful, intentional and malicious. Count III prayed for $25,000 exemplary damages against Redus and $100,000 exemplary damages against Westbend.

Answering Count III, defendants denied that their conduct was willful, intentional or malicious.

Count IV of the petition, filed (with leave of court) while the suit was pending, alleged that OMTP, in 1979, entered into an agreement with defendants by which a "Straitoplaner" owned by OMTP was leased to defendants. Count IV averred that defendants owed OMTP $3,536.97 under such agreement, and prayed for judgment against each defendant in that amount.

Defendants filed no responsive pleading to Count IV.

While the suit was still in the pleading stage, Westbend filed an "amended counterclaim" consisting of 10 counts. That pleading alleged that N. Eugene Breuer ("Breuer") was OMTP's president and chief operating officer, and named him as a "counterclaim defendant." Several of the counts of the amended counterclaim sought relief against Breuer. For reasons that shall become apparent infra, we need not describe the individual counts of the amended counterclaim. It is sufficient merely to note that OMTP and Breuer, by their attorney, replied to each count of the amended counterclaim.

On May 24, 1985, defendants' attorney, henceforth referred to as "C------," sent a letter to the circuit clerk and to the attorney for OMTP and Breuer. The letter stated that the trial court had set the case for jury trial beginning August 8, 1985, at 10 a.m.

On July 25, 1985, C------ filed in the trial court a motion to withdraw as defendants' attorney. The motion stated that C______, by letter accompanied by a copy of the motion, had advised Redus and Westbend of the decision to withdraw and of the necessity of obtaining representation promptly. That same day the trial court entered an order permitting C______ to withdraw. A copy of the motion and the order was mailed by the circuit clerk to Redus that date.

On August 8, 1985, the trial court called the case for trial. Breuer appeared in person and by attorney, and OMTP appeared by the same attorney. Redus failed to appear, and no attorney appeared for him or for Westbend.

The trial court, without the aid of a jury, heard OMTP's evidence, which consisted of testimony by Breuer.

Identifying himself as the president and manager of OMTP, Breuer recounted that OMTP did business with Westbend during the years 1979 through 1982, and that in doing so OMTP dealt with Redus "throughout the whole experience." As to the individual counts of the petition, we summarize first the testimony regarding Counts II and III.

Breuer testified that early in 1982, OMTP had some 100,000 feet of Westbend's lumber in storage. Breuer explained that OMTP needed to use the warehouse space for other purposes, so he asked Redus to remove the lumber and pay the accrued charges. Redus, according to Breuer, agreed to pay for each load as it was taken out.

For the next several months, said Breuer, Redus "would pick up a load and give us a check for it, and those checks were always good." On July 27, 1982, Redus picked up a load of lumber and gave OMTP the $2,669.55 check mentioned supra; two days later, Redus picked up another load, giving OMTP the $3,400.00 check mentioned supra. Both checks, as heretofore explained, were returned unpaid by the drawee bank, though when this occurred is not disclosed.

Breuer testified that around August 7 or 8, 1982, while he was on vacation, Redus picked up the final load of Westbend's lumber from OMTP, amounting to roughly 50,000 to 60,000 board feet. Redus, according to Breuer, said he forgot to bring a check, but would bring it the next day. Redus never delivered the check.

As we comprehend Breuer's testimony, the amount due OMTP from Westbend for the final load was $4,790.15. We draw that inference because Breuer testified that the total amount due OMTP from Westbend as of August 9, 1982, was $10,859.70, and that said sum included the two dishonored checks, which total $6,069.55. Deducting the latter figure from $10,859.70 leaves $4,790.15.

The trial court evidently understood Breuer's testimony the same as us, as the trial court entered judgment in favor of OMTP and against Westbend on Count I of the petition for $4,790.15, with interest thereon at 9 per cent per annum from and after August 9, 1982. The trial court entered judgment in favor of OMTP and against both defendants on Count II of the petition for $6,069.55 (the sum of the two checks), with interest at 9 per cent per annum from and after August 9, 1982.

As to Count III of the petition, the trial court entered judgment in favor of OMTP and against Redus for $18,208.65, and in favor of OMTP and against Westbend for $18,208.65. Those amounts are treble the sum of the two checks.

As to Count IV of the petition, Breuer testified that only $1,658.93 was due OMTP, which was less than half the prayer. The trial court entered judgment in favor of OMTP and against Westbend on Count IV for $1,658.93, with interest at the "legal rate" from and after the date of trial.

The judgment included a finding against defendants on all counterclaims against OMTP, and against defendants on all "third party claims" against Breuer.

After entry of the judgment (filed September 9, 1985), no action was taken by defendants until October 21, 1985. On that date, by their present counsel, defendants filed a notice of appeal. ¹

Before considering defendants' assignments of error, we must address a motion filed by OMTP and Breuer, henceforth referred to collectively as "respondents," wherein they seek an order from us dismissing the appeal. Respondents insist that because defendants filed no motion in the trial court to set aside or vacate the judgment, or to obtain any other post-judgment relief, defendants are foreclosed from maintaining this appeal. In support of that hypothesis, respondents cite Vonsmith v. Vonsmith, 666 S.W.2d 424 (Mo. banc 1984), and Barney v. Suggs, 688 S.W.2d 356, 358[1, 2] (Mo. banc 1985).

Neither case is factually identical to the instant case. In each of the cited cases, the party who was sued filed no responsive pleading within the time allowed, and a judgment by default was entered in favor of the suing party. The sued party thereafter filed no motion to set aside or vacate the judgment, but instead filed a notice of appeal. In each case, the Supreme Court of Missouri held that a default judgment is not appealable absent a motion by the defaulting party to set aside or vacate the judgment.

The instant case...