White River Development Co. v. Meco Systems, Inc., s. 17777
| Decision Date | 04 August 1992 |
| Docket Number | 17767,Nos. 17777,s. 17777 |
| Citation | 837 S.W.2d 327 |
| Court | Missouri Court of Appeals |
| Parties | WHITE RIVER DEVELOPMENT COMPANY, Plaintiff-Respondent, v. MECO SYSTEMS, INC., a Missouri corporation, and Fidelity and Deposit Company of Maryland, Defendants-Third Party Plaintiffs-Appellants, v. GREAT SOUTHERN SAVINGS & LOAN ASSOCIATION and Great Southern Financial Corporation, Third-Party Defendants-Respondents. STATE of Missouri, ex rel. MECO SYSTEMS, INC., Relator, v. Honorable J. Edward SWEENEY, Judge of the Associate Circuit Court of Barry County, Missouri, Respondent. |
John R. Lewis, Lewis & Moon, Springfield, for relator.
Emory Melton, Donald L. Cupps, Ellis, Ellis & Cupps, Cassville, for White River Dev. Co.
In No. 17767, Meco Systems, Inc. (Meco) and Fidelity and Deposit Company of Maryland (Fidelity) applied, as permitted by Rule 74.11(c), for an order showing satisfaction of a judgment that was entered in No. 17777 is an original proceeding in prohibition. White River's attorneys, on behalf of Great Southern Savings & Loan Association and Great Southern Financial Corporation (Great Southern), as assignee of White River, requested garnishment in aid of execution upon certain bank accounts of Meco after Meco had tendered $29,354.83 as payment in full of White River's judgment together with a form "Satisfaction of Judgment" for execution by White River's attorneys and by the attorney for Great Southern as third-party defendant. The amount the garnishment sought was $174,331.04. On August 7, 1991, Meco filed a Motion to Quash Garnishment. Pursuant to interrogatories that had been directed to and answered by the Commerce Bank of Springfield, the trial court, on August 26, 1991, ordered the bank to deliver to the clerk of the court "the sum of 174,331.04 by August 27, 1992." The clerk was directed "not to disburse said funds to the Garnishor until [Meco's] motion to quash [was] ruled on." On August 29, 1991, the trial court held a hearing on the motion to quash and took the motion "under advisement." On September 5, 1991, the trial court filed its order denying the motion to quash but directing the clerk of the court not to make distribution of the proceeds of the garnishment for 20 days in order that Meco and Fidelity could seek prohibition from disbursing those funds. Meco sought a writ of prohibition in this court and a preliminary order in prohibition issued. The respondent trial judge was ordered to take no further action to enforce the order to distribute proceeds of the garnishment or to direct distribution of the proceeds from the garnishment pending further order from this court.
favor of White River Development Company (White River) and against Meco and Fidelity. The trial court denied the application. Meco and Fidelity filed a Motion for New Trial or, in the Alternative, to Amend Decree. That motion was denied. Meco appeals from the order of the trial court denying the Application for an Order Showing Satisfaction of Judgment.
The appeal in case No. 17767 was consolidated with case No. 17777, the proceeding in prohibition. The order denying the Application for an Order Showing Satisfaction of Judgment is reversed and remanded with directions (case No. 17767). The writ of prohibition is made absolute (case No. 17777).
Case No. 17767 was before this court previously. In White River Dev. Co. v. Meco Systems, Inc., 806 S.W.2d 735 (Mo.App.1991), this court reversed an award of $34,860, representing "completion damages," to White River and reversed the trial court's denial of a counterclaim that had been brought by Meco. The case was remanded to the trial court with directions to amend the judgment so as "to award Meco $102,333.50 on its counterclaim, with interest from October 30, 1986, at 9% per annum and to award [White River] $154,604.74 against Meco and Fidelity, with interest from the date of the initial judgment at 9% per annum." Id. at 742. Following remand, a judgment was entered in the trial court's records in this case, being case No. CV187-176CC in the Circuit Court of Barry County, as follows:
NOW on this the 13th day of May, 1991, the Court in compliance with the mandate of the Missouri Court of Appeals, Southern District, enters the following judgment.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Plaintiff White River Development Company is granted judgment against the Defendant Meco Systems, Inc. and the Defendant Fidelity and Deposit Company of Maryland and each of them for $154,604.74, together with interest from January 9, 1990 at the rate of 9 percent per annum.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant Meco Systems, Inc. is granted judgment against the Plaintiff White River Development Company for $102,333.50 together with interest from October 30, 1986 at the rate of 9 percent per annum.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendant Meco Systems, Inc.'s claim for mechanic's lien is denied.
The costs of the Trial Court are assessed against the Defendants Meco Systems, Inc. and Fidelity and Deposit Company of Maryland.
The costs of the Appeal are assessed equally among the parties.
Execution may issue.
The amount of $29,254.83 that Meco tendered in payment of the judgment debt was calculated as follows:
Amount awarded to White River $154,604.74
Interest from Jan. 9, 1990 (the date of the original judgment), 18,857.54
to May 17, 1991, at the rate of 9% per annum
-----------
$173,462.28
Less: Amount awarded to Meco on its ($102,333.50)
counterclaim
Interest at rate of 9% per annum (42,873.95) (144,207.45 )
--------------------- -----------
Amount owed by Meco to White River $ 29,254.83
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Meco's check in the amount of $29,254.83 was transmitted by its attorney's letter dated May 17, 1991, four days after the May 13 "judgment." The letter purports, by typewritten notation on its face, to have been "hand-delivered." The form "Satisfaction of Judgment" was included with the letter. No issue is made about the date of the letter or the amount of the interest calculated for purposes of computing the $29,254.83. By separate letters to Meco, an attorney for White River and the attorney for Great Southern refused to accept the amount that Meco had tendered in full payment of its judgment debt. Meco's check was returned. On June 19, 1991, Meco and Fidelity filed their Application for an Order Showing Satisfaction of Judgment. The trial court denied that application by its "Decree" dated August 7, 1991, but which is shown as being filed August 12, 1991. Meco and Fidelity filed a "Motion for New Trial or, in the Alternative, to Amend Decree" August 26, 1991. That motion was denied September 5, 1991. Meco filed a notice of appeal September 12, 1991. No appeal was taken by Fidelity.
The motion to quash the garnishment that is the subject of case No. 17777 was directed to a garnishment in aid of execution of the May 13 judgment, the judgment that was purportedly entered in accordance with the directions from this court following the initial remand of the same case now before this court in No. 17767. The basis for the trial court's denial of the motion to quash the garnishment is the same basis that the trial court relied upon in denying Meco's application for an order showing satisfaction of the May 13 judgment.
Meco contends that the trial court erred in denying its Application for an Order Showing Satisfaction of Judgment. According to Meco, the trial court erred in applying and declaring the law in four respects. Meco contends that the trial court erred (1) in finding that White River's assignment of judgment to Great Southern "was executed and binding" upon Meco on March 8, 1990; (2) in finding that White River's assignment of judgment to Great Southern was binding on Meco before Meco was awarded judgment on its counterclaim; (3) in declaring that Meco was not entitled to a setoff; and (4) in declaring that Great Southern, as assignee, did not take the assigned judgment "subject to all defenses while in the hands of the assignor [White River]."
White River's brief, in addition to addressing the points presented by Meco, raises a procedural issue that requires determination. White River contends that, notwithstanding the merit or lack of merit of any of Meco's points, Meco's appeal should be dismissed because it was not timely filed. White River asserts that the appeal is directed to the judgment that was entered by the trial court on May 13, 1991; that since Meco's application for satisfaction of judgment was not filed until June 19, 1991, more than 30 days after entry of judgment, the judgment had become final and an appeal would not lie.
As authority for its claim that Meco's appeal was untimely, White River cites Rule 81.04 without further explanation. Apparently, White River's reference to Rule 81.04 is directed to subparagraph (a). It provides that in order for appeals to be effective, "the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final." White River argues that since the judgment was entered on May 13, it became final 30 days after its entry; therefore, in order for Meco to have appealed therefrom, a notice of appeal was required to have been filed not later than 40 days following May 13, 1991--not later than June 22. 1
White River further argues that Meco's contention that it is appealing from the trial court's denial of its Application for an Order Showing...
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