P. I. C. Leasing, Inc. v. Roy A. Scheperle Const. Co., Inc.

• Decision Date: 18 December 1972
• Docket Number: No. 25914,25914
• Citation: 489 S.W.2d 219
• Parties: P. I. C. LEASING, INC., Plaintiff-Respondent, v. ROY A. SCHEPERLE CONSTRUCTION COMPANY, INC., Defendant, Third-Party Plaintiff and Appellant, v. Harold HAWKEN, Third-Party Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 219

489 S.W.2d 219

P. I. C. LEASING, INC., Plaintiff-Respondent, v. ROY A. SCHEPERLE CONSTRUCTION COMPANY, INC., Defendant, Third-Party Plaintiff and Appellant, v. Harold HAWKEN, Third-Party Defendant-Respondent.

No. 25914.

Missouri Court of Appeals, Kansas City District.

Dec. 18, 1972.

Michael P. Riley, Carson, Inglish, Monaco & Coil, Jefferson City, for plaintiff-respondent.

Alex Bartlett, Hendren & Andrea, Jefferson City, for defendant, third-party plaintiff and appellant.

L. H. Wilbers, Jefferson City, for third-party defendant-respondent.

Before SHANGLER, C.J., PRITCHARD and WASSERSTROM, JJ., and Special Judge WILLIAM PETERS.

WASSERSTROM, Judge.

The situation here involves a tri-partite transaction under which two-way radio equipment was furnished for appellant's use. Appellant originally negotiated directly for this equipment with Harold Hawken. After they had agreed on the equipment and the terms, Hawken arranged for the transaction to be handled to as a lease through P.I.C. Leasing, Inc., in order that certain tax advantages might accrue to appellant. The arrangement finally consummated was that P.I.C. bought the equipment from Hawken, and then P.I.C. in turn leased that equipment to appellant.

Hawken did deliver and install the equipment. However, appellant claims that this equipment never worked properly, did not meet Hawken's representation, and was not fit for the intended use. Hawken made service calls in response to appellant's complaints, but he testified that the equipment was in good working order, with the trouble being that the equipment was not properly used by appellant.

Because of its dissatisfaction with the equipment, appellant made no lease payment to P.I.C. after the original advance deposit. It demanded that the equipment be removed, which P.I.C. did. At the expiration of the lease period, P.I.C. brought this suit to recover the full amount due under the lease.

In response to the P.I.C. petition, appellant filed an answer asserting various affirmative defenses. In addition, it filed a counterclaim seeking to recover from P.I.C. for certain damage allegedly caused to the roof of appellant's building when P.I.C. repossessed the equipment; and appellant also sought a return of the advance down payment made under the lease. Still further, appellant filed a third-party petition against Hawken seeking to recover from him any sums awarded against appellant in favor of P.I.C.

At the close of the evidence and prior to final submission, appellant requested that the trial court prepare findings of fact and state the grounds for its decision, as provided for in Rule 73.01(b) V.A.M.R. The trial court did enter findings of fact in which it found the issues on the P.I.C. petition in favor of P.I.C. and against appellant and the trial court further found the issues on the third-party petition against appellant and in favor of Hawken. Judgment was then entered in favor of P.I.C. for the sum of $2,533.65 and dismissing appellant's petition against Hawken. No finding or any judgment was entered with respect to appellant's counterclaim against P.I.C.

Before considering appellant's assignments of error, a preliminary matter requires attention. Even though none of the parties has objected to this court's jurisdiction, it is our duty to notice any such question sua sponte. Ordinarily, no appeal will lie from a judgment which does not dispose of all issues in the case, including any counterclaim which may have been filed. Jack Brandt, Ltd. v. Morris, Mo., 400 S.W.2d 417; Custom Control Manufacturer, Inc. v. Matney & Co., Inc., Mo.App., 480 S.W.2d 321; L & L Leasing Co. v. Asher, Mo.App., 440 S.W.2d 181. Since the judgment herein does not mention appellant's counterclaim, the question arises whether this appeal must be dismissed as premature.

Adopting a liberal approach in the interest of a disposition on the merits rather than continuing this litigation still further by remanding on procedural grounds, we rule that the judgment below is sufficient to support an appeal, even though no express ruling was made therein concerning the counterclaim. That counterclaim consisted of two elements. The first element was a demand for return of the down payment paid to P.I.C. under the lease, and necessarily was dependent upon a finding that P.I.C. was not entitled to enforce the lease. The trial court found to the contrary and gave P.I.C. judgment for rentals due. In making the computation of what was due, the record shows clearly that the trial court did give credit to appellant for the advance deposit. Accordingly, that element of damage under the counterclaim has been taken into account by the judgment. In any event, as a matter of law appellant is not entitled to an affirmative recovery of the advance deposit in the face of the ruling adverse to appellant on P.I.C.'s right to enforce the lease. Commercial National Bank v. White, Mo., 254 S.W.2d 605, l.c. 608, discussed in Jack Brandt, Ltd. v. Morris, Mo., 400 S.W.2d 417; Memphis Bank and Trust Co. v. West, Mo.App., 260 S.W.2d 866, l.c. 878--879.

The other element of damage set forth in the counterclaim pertains to damage to the roof of appellant's building alleged to have been caused by P.I.C. incident to its repossession of the radio equipment. This claim of nominal damages in the sum of $100.00 was abandoned by appellant before the case was submitted. It introduced no evidence whatsoever in support of this claim. Furthermore, although it requested findings of fact from the trial court and submitted to the trial court a lengthy, detailed set of requested findings, no mention of the alleged damage to its roof was contained in those requested findings. The abandonment of this nominal claim is further reflected in the fact that appellant filed no after trial motion complaining...