Thompson v. Fiber-Lum, Inc., FIBER-LU

• Decision Date: 23 February 1971
• Docket Number: No. 33915,INC,FIBER-LU,33915
• Citation: 464 S.W.2d 514
• Parties: Bobbie Lee THOMPSON, Plaintiff-Appellant, v., a Corporation, and Louis B. Susman, Trustee, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 514

464 S.W.2d 514

Bobbie Lee THOMPSON, Plaintiff-Appellant, v. FIBER-LUM, INC., a Corporation, and Louis B. Susman Trustee, Defendants-Respondents.

No. 33915.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1971.

Carson, Inglish, Monaco & Coil, Michael P. Riley, Jefferson City, J. W. Stipelman, University City, Richard Baron, St. Louis, Harold E. scheppner, Jr., Clayton, for plaintiff-appellant.

Shifrin, Treiman, Schermer & Gallop, Louis B. Susman, Gary S. Heifetz, Henry G. Morris, St. Louis, for defendants-respondents.

DOERNER, Commissioner.

Plaintiff appealed to the Supreme Court of Missouri from an order of the trial court dismissing, with prejudice, her original petition. The Supreme Court held that it lacked jurisdiction to entertain the appeal and transferred the cause to this court. We reverse and remand.

Since plaintiff makes no claim that the trial court erred in ruling that the plaintiff's petition failed to state a claim in equity upon which relief could be granted we need only summarize plaintiff's petition. In it plaintiff alleged that she was the owner of property situated at 5205--07 Page Boulevard, St. Louis, Missouri; that on or about June 27, 1968, she entered into a contract with defendant Fiber-Lum, Inc., a corporation, to perform certain remodeling of plaintiff's home, which remodeling was to conform to the Minimum Housing Standards Ordinance of the City of St. Louis; that on or about July 1, 1968, plaintiff executed a deed of trust on her property to Sheldon D. Grand as trustee, to secure a note payable to Fiber-Lum in the sum of $7512.12; that said note, secured by the deed of trust, was purchased by Dealers Acceptance Corporation; that the initial cost of the remodeling job as set out in the contract between plaintiff and Fiber-Lum was $4185.00, 'which price was grossly excessive and totally unrelated to the work which was actually performed, and this amounts to a failure of consideration and fraud'; that the deed of trust was recorded in the office of the recorder of deeds for the city; that Fiber-Lum failed to perform a portion of the work 'he' (sic) contracted to do, and that work which it did perform was unacceptable to the city; that Louis B. Susman succeeded Sheldon D. Grand as trustee of said deed of trust, and advertised plaintiff's property for sale, scheduled to take place on November 26, 1968; and that although so requested by plaintiff, defendant refused to release said deed of trust. Plaintiff's prayer was that the court order the deed of trust set aside; that in the meantime defendants be enjoined and restrained from disposing of said property; for her costs; and for any other relief the court deemed meet and just.

Plaintiff's petition was filed on November 20, 1968. On the same day the court, at plaintiff's request, issued an order on the defendants to appear on November 25, 1968, at 10:00 A.M., and show cause '* * * 'why the sale of Deed of Trust should not be set aside as prayed. " On November 25 proof of service on Louis B. Susman, trustee was filed, counsel for defendants entered their appearance, and the hearing was passed to the next day on the defendants' agreement not to hold the foreclosure sale prior to or during the hearing. On November 26, defendants filed their motion to dismiss the plaintiff's cause of action on the grounds that the plaintiff had an adequate remedy at law and on the further ground that plaintiff's petition did not state a cause of action. On the same day defendants filed an answer which requires no further description other than the statement that defendants thereby denied the material portions of plaintiff's petition, and prayed for the dismissal of plaintiff's action, with costs.

As best we can determine from the transcript as to what occurred at the hearing on November 26, 1968, plaintiff's counsel, at the very start of the hearing, asked leave to amend the petition, 'with respect to certain things that we have lately discovered, as lawyers, since the filing of the suit * * *', which plaintiff's counsel stated, were nothing new to defendants and would not catch them by surprise.

'THE COURT: I grant you leave to amend.

'THE CLERK: Your honor, he will have to get a new order to show cause.'

There then occurred a colloquy between both counsel and the court regarding the proposed amendment, and the time for defendants to answer, and the new order to show cause, during the course of which counsel for defendants stated that while he was desirous of arguing his motion to dismiss, as an alternative he would be willing to delay the foreclosure if plaintiff would be willing to put up a bond to cover the costs thereof. Further discussion ensued regarding the plaintiff's proposed amendment and the resulting need for a new order to show cause, which concluded as follows:

'THE COURT: If there is an amendment, I, as a Court, have got to issue an order to show cause to the new horse, because I'm not dealing with the old petition and the order to show cause is related to the old petition. I have got to, the order requires it.

'MR. STIPELMAN (plaintiff's counsel): That's a square deal, your honor. I won't amend my petition. Let the old petition stand as it is.'

Thereupon the court heard the argument of both counsel on the defendants' motion to dismiss and ruled, in effect, that no cause of action in equity was alleged in the petition, but only a breach of contract. Page after page follows in the transcript of more colloquy between plaintiff's counsel and the court regarding the court's ruling. The court remained adamant, again stated that no cause of action in equity had been pleaded, and announced: '* * * I dismiss the petition.' At that point plaintiff's counsel asked for leave to file an amended petition. Another lengthy colloquy between the court and counsel followed, during which plaintiff's counsel also asked the court to reconsider the court's dismissal of the cause with prejudice. After further discussion by the court and counsel the court declined to grant both requests, and the...