Vice v. Thurston
| Citation | 793 S.W.2d 900 |
| Decision Date | 24 July 1990 |
| Docket Number | No. WD,WD |
| Court | Court of Appeal of Missouri (US) |
| Parties | Eddie VICE, Millie Garrett, Suzanne Lawson, Leona De Volld, Debbie Hess, Kathy Rosencrants, Jo Buol, Jami L. Roberts, Eric Thomasson & George Creason, Respondents, v. Virgil THURSTON, Appellant. 42798. |
David A. Johnston, Columbia, for appellant.
John C. Slavin of Farr & Hickman, Kirksville, for respondents.
Before TURNAGE, P.J., and MANFORD and BERREY, JJ.
This is a civil action for wages claimed due pursuant to both an employment contract and under § 290.110, RSMo 1986. The judgment is affirmed.
Appellant presents three points which, in summary, charge the trial court erred (1) in entering judgment because the court lacked subject matter jurisdiction; (2) in concluding he (appellant) was liable as an undisclosed principal; and (3) in finding wages due pursuant to and under § 290.110, RSMo 1986.
It is noted, at the outset, that this was a case tried to the court without a jury. In addition, this court was not provided a transcript of the proceedings and the record on appeal consists solely of the legal file. The following factual summary has been compiled from the legal file and the factual account expressed in the parties' briefs.
Appellant Virgil Thurston was, at the time in question, president of Baker-Thurston, Inc., which was, at all times herein, a Missouri Corporation (within the Fictitious Name Act) in good standing. Following incorporation, Baker-Thurston, Inc. leased a portion of the Travellers Hotel in Kirksville, Missouri to operate a restaurant which was called, "The Missourian Family Restaurant." In preparation of the restaurant opening, a local newspaper article appeared concerning the re-opening of a restaurant at the Travellers Hotel, and respondents were hired for various employment positions.
The venture was unsuccessful, resulting in the filing of voluntary bankruptcy proceedings which occurred on March 15, 1988. A final bankruptcy decree was issued on September 14, 1988, following a finding there were no distributable assets.
On April 25, 1988, during the pendency of the bankruptcy proceedings, respondents filed this action. Their claims were based upon various wage amounts claimed due by each respondent, and each respondent sought a penalty for nonpayment of wages pursuant to § 290.110, RSMo 1986.
Both parties filed a motion for summary judgment with accompanying supporting documents and affidavits. The trial court denied both motions and the cause was tried to the court. Judgment in the total sum of $9,327.40 was entered in favor of respondents. This appeal followed the overruling of post-trial motions.
Under point (1), appellants charges that by post-trial motion, the trial court lacked jurisdiction due to the provisions of former § 478.225.2(1), RSMo 1986 1, the applicable portion of which reads as follows:
2. Each associate circuit judge within the counties or city of St. Louis for which he is an associate circuit judge may hear and determine the following cases or classes of cases including any equitable issues and relief incident thereto:
(1) Except as otherwise provided by law, all civil actions and proceedings for the recovery of money, whether such action be founded upon contract or tort, or upon a bond or undertaking given in pursuance of law in any civil action or proceeding, or for a penalty or forfeiture given by any statute of this state, when the sum demanded, exclusive of interest and costs, does not exceed fifteen thousand dollars;
Appellant also refers this court to Missouri Supreme Court Rule 55.27(g)(3), which prescribes dismissal of an action when warranted by lack of jurisdiction.
Appellant predicates the challenge to the trial court's jurisdiction by referring to the amount claimed in respondents' petition. He argues that the claimed amount exceeds the statutory limitations for jurisdiction ($15,000.00) by the sum of $98.20. As observed infra, while appellant is correct in the mathematical calculation, the disposition of this issue does not turn upon that calculation.
Respondents assert the trial court had jurisdiction because their petition does not allege they were paid every two weeks, nor does their petition allege the wages due were for a period prior to the actual closing of the restaurant. Respondents therefore conclude without evidence there was no way to discern the last pay period and thus, their petition was within the jurisdictional limitation prescribed by the statute. As observed infra, respondents are incorrect in their assertions, but their error is of no matter due to the disposition of this issue.
Appellant argues that proper jurisdiction is made from the demand asserted in a plaintiff's petition. If that were the only matter herein, appellant would prevail. Appellant refers this court to Sutherland v. Metropolitan Life Insurance Co., 99 S.W.2d 111, 113 (Mo.App.1936) and Wade v. Markham, 106 S.W.2d 939 (Mo.App.1937).
Respondents contend that since their petition did not specify any two-week pay period, it does not fall under the rule in Sutherland, supra. This argument fails in light of what the legal file discloses prior to trial. In support of the motion for summary judgment, appellant filed an affidavit and attached thereto was an exhibit which clearly reflects the payroll checks issued to respondents. This disclosure, without question, reflects pay periods of each two weeks. The claim of bi-weekly wage payments by appellant went unchallenged by respondents. It is equally clear that the trial court was aware of the bi-weekly payments. The election or failure of respondents to challenge the claim of bi-weekly wage payments amounted to an admission of the claim to which respondents were bound. Hurwitz v. Kohm, 516 S.W.2d 33, 36 (Mo.App.1974).
As an added note, respondents' claim that evidence was necessary to prove jurisdiction is in error under the rule in Sutherland, supra. Further, the fact that the trial court entered judgment for less than the jurisdictional limitation is not a determining factor either. The result is that respondents' petition, on its face, exceeded the jurisdictional limitation prescribed by the former § 478.225.2(1). That fact, however, is not dispositive of the matter.
The record discloses that respondents filed this proceeding directly in the Associate Circuit Division of the Circuit Court of Randolph County on April 25, 1988. The initial Associate Circuit Judge recused himself. At this point, the matter was brought to the attention of the presiding circuit judge of the 14th Judicial Circuit. On May 6, 1988, that judge issued the following order:
IN THE FOURTEENTH JUDICIAL CIRCUIT OF MISSOURI
In the Matter of:
Cause docket numbered CV588"0270AC now pending in Division Two of the Circuit
Court of Randolph County, Missouri and styled:
Missouri, having recused himself in the within cause, it is ordered that the
within cause be assigned for hearing and determination to the Honorable Ralph
May 6, 1988 ________________________________________
Presiding Circuit Judge Aside from a passing comment that the foregoing assignment was not in compliance with § 478.240, RSMo 1986 by appellant (respondents did not even confront this contention), there is nothing claimed or any reasoning offered as to why there was any impropriety with the case assignment.
This court does not agree with appellant's assertion that the assignment of this case was not made pursuant to § 478.240.
When the initial associate circuit judge recused himself, this matter was before the presiding circuit judge. By the above order, this case was assigned for determination by the presiding circuit judge. As a result of that assignment order, the entire issue of statutory limitation under § 478.225.2(1) was resolved. The assignment order was, in every way, proper and within the provisions of § 478.240.2, RSMo 1986. See State ex rel. McNaul v. Bonacker, 711 S.W.2d 566, 569 (Mo.App.1986) for a good discussion of the question, and although not a case with an identical factual posture, it nonetheless rules correctly that associate judges may hear cases under special circumstances and "one such circumstance being by assignment per § 478.240.2 ..." Point (1) is ruled against appellant.
Under point (2), appellant argues the trial court erred in finding that he was an undisclosed principal and thus liable to respondents.
It is appellant's position that his obligation of disclosure as an agent for Baker-Thurston, Inc. was satisfied by the publication of the newspaper article in the local newspaper. Appellant asserts such an article was tantamount to a disclosure of the corporation as the principal, to reasonable persons. Appellant further attacks the trial court for not having found his testimony credible on this question. Appellant further asserts that respondents were paid with checks drawn on the Baker-Thurston, Inc. account.
In the first instance, this case is subject to review under Rule 73.01 and the case of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The issue of disclosure was disputed. Appellant...
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...to interpret the meaning of the statutory language and determine the intent to be ascribed to the language used. Vice v. Thurston, 793 S.W.2d 900, 905 (Mo.App.1990). Construction of a statute is a question of law, not judicial discretion. Delta Air Lines, Inc. v. Director of Revenue, 908 S.......
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...to interpret the meaning of the statutory language and determine the intent to be ascribed to the language used. Vice v. Thurston, 793 S.W.2d 900, 905 (Mo.App.1990). Construction of a statute is a question of law, not judicial discretion. Delta Air Lines, Inc. v. Director of Revenue, 908 S.......
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...after hearing a § 260.395.11 appeal, it becomes our task to construe the meaning of the statutory language. See Vice v. Thurston, 793 S.W.2d 900, 905 (Mo.App.1990). We look to the purpose of the statute and any evident legislative intent to seek construction. See AT & T v. Wallemann, 827 S.......
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Battis v. Hofmann, WD
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