Phillips v. Hoke Const., Inc., 17773

• Decision Date: 24 June 1992
• Docket Number: No. 17773,17773
• Citation: 834 S.W.2d 785
• Parties: Sherri PHILLIPS, d/b/a Concrete Technicians, Inc., Plaintiff-Respondent, v. HOKE CONSTRUCTION, INC., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 785

834 S.W.2d 785

Sherri PHILLIPS, d/b/a Concrete Technicians, Inc., Plaintiff-Respondent, v. HOKE CONSTRUCTION, INC., Defendant-Appellant.

No. 17773.

Missouri Court of Appeals,

Southern District,

Division Two.

June 24, 1992.

Motion for Rehearing or Transfer to

Supreme Court Denied

July 16, 1992.

Thomas Y. Auner, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for defendant-appellant.

James L. Bowles, Ozark, for plaintiff-respondent.

MONTGOMERY, Judge.

Plaintiff, Sherri Phillips, d/b/a Concrete Technicians, Inc., brought suit against Defendant, Hoke Construction, Inc., for the unpaid balance due under a "subcontract agreement." By her amended petition, Plaintiff alleged that she "is an individual residing in Christian County, Missouri d/b/a Concrete Technicians, Inc. a forfeited Missouri Corporation whose charter was forfeited on August 25, 1989, and subsequent to said date this Plaintiff has done business as Concrete Technicians, Inc., and that Ralph Gugliotta is an agent of this Plaintiff who at all times had the authority to enter into the subcontract agreement...." The alleged date of the subcontract agreement was February 16, 1990.

Defendant filed a motion to dismiss the amended petition which alleged, among other grounds, that "[p]laintiff does not have legal capacity to sue Defendant." This motion was overruled, and Defendant filed its answer setting forth the same allegation among its various defenses.

After a bench trial, the court entered the following judgment:

That Plaintiff Sherry [sic] Phillips as the statutory trustee for Concrete Technicians, Inc., a forfeited Missouri corporation, have and recover from Defendant Hoke Construction, Inc. the sum of $8,857.06.

From this judgment Defendant appeals, presenting us with two points relied on. Because our determination on Point I is dispositive of the case, the last point is not discussed. The first point recites:

The trial court erred in overruling defendant's motion to dismiss plaintiff-respondent's amended petition and in holding that plaintiff-respondent, Sherri Phillips, properly brought suit in her name in her capacity as statutory trustee of Concrete Technicians, Inc. because there is no evidence that plaintiff brought suit in her capacity as statutory trustee pursuant to Mo.Rev.Stat. § 351.525 (Cum.Supp.1990), repealed May 29, 1991, Mo.Rev.Stat. § 351.525 (Cum.Supp.1991) wherein it provides that a forfeited corporation may only bring a lawsuit through its statutory trustees.

The standard for appellate review in a court-tried case requires this Court to affirm the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence or erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "Further, the appellate court must accept as true the evidence and permissible inferences therefrom favorable to the prevailing party and disregard the contradictory evidence." Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.1983).

Plaintiff's evidence revealed that the corporate rights and privileges of Concrete Technicians, Inc., were forfeited on August 25, 1989, and the certificate of incorporation was canceled by the secretary of state. Plaintiff and Ralph Gugliotta comprised the last board of directors and were the only officers on August 25, 1989. Plaintiff was aware of the forfeiture.

The subcontract agreement was marked as Plaintiff's Exhibit 1. The agreement required certain work to be done for Defendant in Tennessee. The contracting parties shown at the top of Plaintiff's Exhibit 1 were Concrete Technicians, Inc., and Defendant. The signatures shown at the bottom of the agreement were Defendant's as contractor and Ralph Gugliotta's as subcontractor. His signature was not made in any representative capacity.

Plaintiff testified Gugliotta was employed by her as an estimator and a foreman, and at the time of the subcontract agreement, she was doing business in the name of Concrete Technicians. She emphasized Gugliotta had the authority to sign estimates and agreements on her behalf.

The testimony of Ralph Gugliotta, in general, confirmed that of Plaintiff. Additionally, he testified that Defendant prepared Plaintiff's Exhibit 1, and it was his oversight for the contracting party to be called Concrete Technicians, Inc. He stated that was not correct because, "we were working under Concrete Technicians."

During cross-examination, Plaintiff testified she sent all the papers in to the secretary of state's office to register as a sole proprietorship doing business as Concrete Technicians. ¹ She stated she was attempting to do business as Concrete Technicians, not incorporated.

After execution of the subcontract agreement, Plaintiff dispatched Gugliotta and one workman to complete the job near Gatlinburg, Tennessee. While the workmen were on the job, David Hoke, President of the Defendant, inspected the work. He talked to Gugliotta concerning how some of the work should be done. At that time he had made no decision not to pay for the work.

At trial, Defendant did not seriously dispute the contemplated work was properly done. Defendant's evidence mainly showed that the contract was with Concrete Technicians, Inc., not Plaintiff individually, and no consent to assignment was ever given concerning the subcontract agreement.

The trial court filed its Memorandum containing certain findings of fact and conclusions of law. The trial court noted that Concrete Technicians, Inc., forfeited its charter August 25, 1989, before the subcontract agreement was made February 25, 1990. The trial court then made the following determination:

Certain propositions follow. Concrete Technicians, Inc., could not enter into new contracts after forfeiture. The statutory trustees could only wind up the corporate affairs. The contract itself purports to be with the corporation, but legally, the corporation could not contract. Plaintiff testified she knew of the forfeiture and was doing business as an individual. Perhaps, this would be possible and [Gugliotta] who signed the contract would be acting for an undisclosed principal.

The trial court noted Defendant's position that Plaintiff could not do business as an individual under the name of a forfeited corporation and determined if that was so, "then Defendant could accept the benefits of the bargain and would not be responsible to anyone." The court then held:

[T]hat Plaintiff properly brought the suit in her name but that it was brought in her capacity as statutory trustee and that the fact that the contract was made after forfeiture does not prevent enforcement of the contract against Defendant but merely removes the shield of the corporation and Plaintiff has personal liability to Defendant. This result avoids another suit if the corporation is reinstated and is consistent with the written agreement. It also avoids the unjust result of Defendant having received performance but incurring no liability.

We agree with Defendant that no evidence supports the holding of the trial court that Plaintiff brought suit in her capacity as a statutory trustee of Concrete Technicians, Inc. Both her pleadings and evidence clearly show suit was brought by Plaintiff, individually, doing business as Concrete Technicians, Inc. For that reason, it is unnecessary in our opinion to delve into any legal ramifications of a corporation attempting to conduct business after forfeiture of its charter nor into the powers and duties of its statutory trustees.

As the trial court stated, and Defendant agrees, Concrete Technicians, Inc., ceased to exist on August 25, 1989. ² Defendant cites Moore v. Matthew's Book Co., Inc., 597 F.2d 645 (8th Cir.1979), which relied on Clark Estate Co. v. Gentry, 362 Mo. 80, 240 S.W.2d 124 (1951), cert. denied, 342 U.S. 868, 72 S.Ct. 109, 96 L.Ed. 653 (1951), where our Supreme Court stated:

On the day of the forfeiture, the company's very being as a legal entity was destroyed and from that date the then officers and directors of the dissolved corporation became statutory trustees of its affairs for the purposes stated in the statute.

Id. 240 S.W.2d at 127.

On February 25, 1990, the subcontract agreement was made when the legal entity of Concrete Technicians, Inc., no longer existed. As the trial court indicated, Plaintiff knew of the forfeiture and afterwards was doing business as an individual. We believe our decision turns on (1) whether an individual doing business under an unregistered fictitious name can enforce a contract made only in such fictitious name and (2) whether Gugliotta, as agent for his undisclosed principal, can create a binding contract with Defendant on behalf of Plaintiff.

As to (1), the criminal case of State v. Euge, 400 S.W.2d 119 (Mo.1966), provides substantial guidance. There, defendant was convicted of obtaining money with intent to cheat and defraud by means of a bogus check. Defendant opened a bank account with a $40 deposit under the fictitious name of Dayton Mitchell Horn. Defendant subsequently drew a $45 check on that account signed with his fictitious name. The check was returned marked " 'insufficient funds.' " The Supreme Court reversed the conviction noting that defendant's deposit contract with the bank was not void because "a person may assume a different name from his true one and may make contracts under his fictitious name." Id. at 122. The court observed that "Section 417.200 RSMo 1959 V.A.M.S. (now § 417.200, RSMo 1986) provides that it shall be unlawful to transact business under a fictitious name without first registering said name with the Secretary of State, and § 417.230, RSMo 1959, V.A.M.S. (now § 417.230, RSMo 1986) makes failure to register a misdemeanor." Id. The court concluded defendant may have violated the latter section, but such conduct did not make his contract with the bank void. Cited in the opinion is Bassen v. Monckton, 308 Mo. 641, 274 S.W. 404 (1925)...