Vetter & Associates, Inc. v. Dimarco Corp.

Decision Date09 December 1986
Docket NumberNo. 51408,51408
Citation733 S.W.2d 459
CourtMissouri Court of Appeals
PartiesVETTER & ASSOCIATES, INC., Appellant, v. DIMARCO CORPORATION, Respondent, and The Lindenwood Colleges, Defendant.

Sestric, LaBarge, Korum & Clancy, Cyril J. Clancy, Kirkwood, for appellant.

Jack F. Allen, Clayton, for respondent.

CRIST, Presiding Judge.

Appeal by plaintiff-Vetter & Associates, Inc., (subcontractor) from an order setting aside a judgment in its favor. That judgment, in the amount of $70,427.18 was awarded after defendant-Dimarco Corporation (general contractor) failed, in person and by its attorney, to appear for trial. We affirm.

The controversy arose out of a contract under which subcontractor was to do certain heating, ventilating and air conditioning work for the restoration of Nicholls Residence Hall at The Lindenwood Colleges (owner).

A chronological sequence of events would be helpful to a resolution of the issues.

4-19-83: Subcontractor filed suit against general contractor and owner in St. Louis County circuit court (within suit);

5-2-83: Community Title Company filed an interpleader suit, against nineteen separate defendants including owner, general contractor, and subcontractor, in the St. Charles County, Missouri circuit court entitled "Community Title Company v. Barnett Roofing Company, et al., # CV183-1545CC" (St. Charles suit);

5-11-83: Evans & Dixon and Stefan J. Glynias entered their appearance as attorneys for general contractor in within suit;

5-27-83: General contractor filed an answer in within suit;

6-8-83: General contractor filed a counterclaim against subcontractor in within suit;

7-15-83: Subcontractor filed a reply to general contractor's counterclaim in within suit;

9-9-83: Mr. Glynias sent a letter to subcontractor's lawyer wherein he confirmed a telephone conversation of September 7, 1983, in which general contractor and subcontractor had agreed to proceed with the claims in the St. Charles suit and let the within suit await that disposition;

9-20-83: Subcontractor filed a crossclaim, against general contractor in the St. Charles suit, which was substantially identical to Counts I and II of within suit; a copy of which was mailed to Mr. Glynias;

12-29-83: Mr. Glynias and Evans & Dixon filed, in the St. Louis County circuit court, a memo withdrawing as general contractor's attorney;

1-3-84: The St. Louis county circuit clerk's office notified Mr. Glynias that a copy of the letter notifying the client of the withdrawal was needed before he could withdraw, and Mr. Glynias complied;

1-4-84: Mr. Glynias sent the circuit clerk a copy of his letter to Mr. H.R. Westerhold, president of general contractor, giving notice of his withdrawal from within case and several other cases;

2-8-85: The corporate charter of general contractor was forfeited;

3-5-85: Letter from legal counsel for the circuit clerk of St. Louis County to Mr. Westerhold at Dimarco Corp., 4118 Seven Hills Drive, Florissant, Missouri 63033, advising him to have an attorney enter his or her appearance on behalf of general contractor, and that nothing prepared or submitted on behalf of general contractor would be considered filed unless submitted by a licensed attorney of record;

3-20-85: Attorneys for owner filed various pleadings with copies thereof being sent to Marjorie Westerhold, registered agent for general contractor, 3995 Woodcrest Drive, Florissant, Missouri 63033;

7-25-85: Within case assigned for trial on 7-26-85, general contractor was not notified, apparently because it did not acknowledge a prior request of the circuit clerk's office for a telephone number;

7-26-85: General contractor did not appear in court; court approved withdrawal of Mr. Glynias and Evans & Dixon; court found for subcontractor against general contractor for $70,427.18, and found for subcontractor on general contractor's counterclaim; general contractor was not notified that judgments had been rendered against it and in favor of subcontractor;

8-1-85: Circuit clerk sent a cost bill to general contractor, general contractor asked an attorney to investigate the matter;

9-19-85: Jack F. Allen entered his appearance as attorney for general contractor, and for Harold and Marjorie Westerhold, trustees of general contractor;

1-27-86: General contractor filed its verified motion to set aside the judgment.

Subcontractor claims the trial court erred in setting aside the judgment because (1) general contractor was in default for failure to appear and thus not entitled under Rule 74.78 to be heard to assert lack of notice of entry of the judgment; (2) general contractor, in its motion to set aside the judgment, did not plead a defense on the merits or an excuse for defaulting; (3) no evidence was received on the motion, and the motion itself is not evidence of its contents; (4) general contractor was responsible for keeping itself informed of the progress of the case and thus not being told of the trial setting was not an excuse for nonattendance; and (5) setting aside the judgment and reinstating the counterclaim is allowing a corporation which has forfeited its charter to seek relief in the courts.

We deal with subcontractor's first claim of error first; if general contractor were not entitled to seek relief under Rule 74.78 we would not need to reach the issues dealing with the merits of its motion to set aside the judgment. We find Rule 74.78 to be applicable.

The record shows general contractor received no notice of the entry of the judgment. The cost bill, sent six days after the entry of judgment, was the first notice general contractor had of the judgments. Subcontractor asserts no notice was required because general contractor was in default at the time of the entry of the judgment. Rule 74.78 provides:

Upon the entry of ... [a] judgment, the clerk shall serve a notice of the entry ... upon every party affected thereby who is not in default for failure to appear and who was not present in court ... at the time of the entry of such ... judgment. If such notice is not given, said ... judgment shall be set aside for good cause ... within six months from the entry of ... judgment. (Emphasis ours.)

The purpose of Rule 74.78 is to give notice to parties "not present in court" unless that...

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11 cases
  • Kennedy v. Empire Gas Co., Inc.
    • United States
    • Missouri Court of Appeals
    • 8 September 1988
    ...motions have long been recognized. Senn v. Manchester Bank of St. Louis, 583 S.W.2d 119 (Mo. banc 1979); Vetter & Associates, Inc. v. Dimarco Corporation, 733 S.W.2d 459 (Mo.App.1986). "Since the verified motion to dismiss was undenied, it constituted competent evidence as to the facts stat......
  • Mark Twain Elec., Inc. v. Yalem
    • United States
    • Missouri Court of Appeals
    • 25 February 1992
    ...is sued prior to forfeiture, the action is not affected by the lack of legal existence. Rule 52.13(e); Vetter & Associates, Inc. v. Dimarco Corporation, 733 S.W.2d 459, 462 (Mo.App.1986). The reason being, the trustees succeed to the interest of the corporation by operation of law under § 3......
  • Fisher v. Spray Planes, Inc.
    • United States
    • Missouri Court of Appeals
    • 31 July 1991
    ...Sab Harmon, 733 S.W.2d at 483, and those trustees were entitled to prosecute the execution for costs. See Vetter & Assoc., Inc. v. Dimarco Corp., 733 S.W.2d 459, 462 (Mo.App.1986). Appellants' display of the certificate of forfeiture in appellants' brief on appeal sufficed for an order of s......
  • McDonald County Mercantile Bank v. Harp
    • United States
    • Missouri Court of Appeals
    • 6 October 1989
    ...for trial was not in default, consequently such party was entitled to notice of entry of judgment. Vetter & Associates, Inc. v. Dimarco Corp., 733 S.W.2d 459, 461[1, 2] (Mo.App.1986). For the purpose of our disposition of the instant appeal we shall assume, without deciding, that former Rul......
  • Request a trial to view additional results

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