State Ex Rel. Mountjoy v. Bonacker

ny retreats, personal corporate entity operated payment expenses, it is while undercapitalized.” Meat Grote Co. v. and entertainment. Mr. Minniear received Goldenberg, (Mo.App. compensation in the form from CAS 1987). corporation Operating a “without $5,023, salary totaling and Mr. McMahon obligations sufficient funds to meet to $3,028 salary. Appellants received as also those who deal with it would be cir- must $35,000 purported received business tending cumstantial evidence to show ei- compensation personal expenses. ther improper purpose an dis- reckless paid appellants during was from CAS to regard Collet, rights of others.” relatively agreement time the brief (Citations omitted). 708 S.W.2d at 287. Although appel- with Swall inwas effect. lants, theory, president and vice-Presi- as

Appellants argue point II that prefer dent of CAS could which creditors to competent record lacks and substantial first, pay pay to evidence their decision themselves supporting the trial court’s find Swall, ing undercapitalized. pay and not in breach of Appel CAS was creditor lants contend the agreement, absence evidence of CAS’s contractual is evidence capital the dollar value of CAS’s account or the trial court could consider when deter- working what capital any point CAS had at mining appellants stripped whether CAS’s in time is fatal Appel to Swall’s claim. financial assets. Side National See South point lants further to the absence of bal Louis, Bank in 783 S.W.2d at 145. St. returns, sheets, ance jour tax or business Therefore, evidence that substantial CAS nals which record establish the undercapitalized appellants was However, capital. CAS’s the evidence dis assets, improperly stripped tangible CAS’s corporate closed that the officers did not thereby depriving of monies Swall owed consigned receive salaries Swall’s before respondent, Appellants’ presented. was goods CAS, although were sold the offi point II is denied. cers corporation worked for the full time judgment against trial court’s is not being several months paid before for the weight and the the evidence court appellants first time. The money loaned misapplied neither misstated nor law. corporation corporation enable Carron, Murphy v. S.W.2d at 32. The do business. The evidence indicates that trial judgment court’s is affirmed. capital CAS did not have pay sufficient its appellants April creditors or All concur. corporation when the received income from the consigned prod sale of Swall’s

ucts. Additionally, Mr. Minniear admitted corporation

that the undercapitalized. was supports evidence trial court’s find ing that corporation undercapital- STATE of Missouri rel. Thomas E. ex ized. MOUNTJOY, Prosecuting Attorney, The record contains also substantial Missouri, Relator, County, Greene supporting evidence court’s find appellants stripped that the CAS’s as BONACKER, Judge Honorable Don disregard legal sets reckless of Swall’s County, the Circuit Court of Greene rights. The contract between Swall and Missouri, Respondent. provided paid CAS that Swall would be No. 17832. consigned goods each month for to CAS corporation. sold CAS received Appeals, Missouri Court of sufficient goods funds from sale of District, Southern consigned by respondent pay Swall for Two. Division However, goods appellants sold. deter April pay mined not to the full amount Swall owed and instead withdrew the funds in salaries, expenses, form unsubstanti expenses, expenses, compa-

ated child care Atty., Rushefsky, A. Pros.

Cynthia Asst. Springfield, for relator. respondent.

No filed brief SHRUM, Judge. Presiding Mountjoy, Prose- The relator Thomas E. a writ of County, of Greene seeks cutor respondent, prohibition Bonacker, pro- the Honorable Don pending in the ceeding in a criminal October Court. On County Greene Circuit 31, 1991, issued this court prohibition. inwrit rule, change of judge At issue is the 32.07, specifically the Supreme Court appears in subsec- provision which (d).1 question presented tion day period is wheth- filed within is es- respondent er the properly refused to sus- sential. tain the relator’s because the The trial court’s prompted announcement notice did not accompany the petition relator to file his in which he application change judge for of and the requested prohibit respondent that we the provide relator did not the notice within the taking from any further action in the prescribed 32.07(c) time frame by Rule for O’Connor case other sustaining than application. request change for of We issued writ. question

We negative answer the prohibition and make the writ of absolute. By 20, 1991, his November answer to the petition, respondent,

relator’s repre- attorney, sented O’Connor’s admitted FACTS copies that O’Connor received appli- of the September 20, 1991, On styled a case notice, cation and the that O’Connor had no Wayne O’Connor, State v. Michael No. objection change to a judge of or to the CR191-9FX-3, assigned respon- to the hearing, notice of and that at the October dent. On that date appeared O’Connor be- 24, 1991, pretrial hearing respondent respondent fore the arraigned. and was was advised receipt of O’Connor’s of the Trial was scheduled for November application and notice objec- and his lack of Twenty-one days after O’Connor’s However, tion. respondent denied that arraignment, 11, 1991, on October the rela- application complied with Rule tor request filed a judge for a of reiterating the reason stated in the October and copy mailed a of the request to O’Con- entry, namely, 25 docket that the “Notice attorney. nor’s Hearing of was not filed and served until 22, 1991, On October days more than 30 (30) thirty days after arraignment,” arraignment, after the relator filed a “No- adding as a second reason that tice of Hearing” requesting an October application itself “failed to contain a notice 1991, hearing on application his and mailed of [application] when said would be copy of the notice to attorney. O’Connor’s presented to the Court.” 24, 1991, At an pretrial October hearing, respondent DISCUSSION AND was advised DECISION that O’Connor copies had received applica- of the relator’s independent pro “Prohibition is an tion and notice and that he objection had no ceeding prevent judicial to correct or pro judge to a or to the notice. ceedings State ex jurisdiction.” lack Kohn, rel. Raack v. 25, 1991, On October respondent (Mo. 1986). banc A judge juris lacks following made the entry: docket diction, if, prohibition upon proper lies The Court Tuesday announces that on application disqualification, judge for November 1991 it deny will the Re- disqualify fails to Id. at 943. himself. quest Change for Judge for the reason was not filed days within 30 The judge procedure [it] in a crim- arraignment and that a Notice of Hear- 32.07; inal case is set out in Rule in a civil provides, part: 1. Rule 32.07 thirty days designation later than after the judge parties the trial and notification to the (a) judge upon A shall be ordered attorneys. designation or their If the of the application of a written therefor judge thirty days trial trial, occurs less than before any party. applicant allege The need not application be filed must prove any change. appli- reason for such any proceeding on the commencement signed cation need not be verified and record. by any party attorney any party. or an for (d) A a notice (c)In presented felony of the time it will be to the cases the must be thirty days arraign- parties. filed not later than court shall be served on all after (e) filed, designated arraign- timely ment if the trial If designated promptly applica- ment. If the trial is not shall sustain the arraignment, must be filed no tion. ... action, in opinions proposition Rule 51.05.2 criminal and three “stand judge systems “paral- civil Request Judge are Change Jones, lel,” McNary ex State rel. be in it has to contain a and, (Mo.App.1971), presented of time it to the when will be many respects, virtually the rules are iden- respondent argues Trial Court.” The language. tical in notice, coming more relator’s as it did days arraignment, than 30 after “did In cases both criminal and civil cure this defect.” For reasons we discuss actions, Jackson, later, we do not believe keystones legal “one of the of our adminis Bowling compel interpretation Campbell ex rel. trative edifice.” urged by respondent. Rule 32.07 Kohn, 399, (Mo.App.1980). 606 401 S.W.2d “ system justice can function at its ‘[N]o language First examine the of Rule we or if public best maintain broad confidence requires 32.07 do not which we believe litigant compelled a can to his be submit respondent construction that the advocates. litigant in sincerely a court where (c) prescribes Although when an subsection incompetent preju- believes or filed, application must the rule does not be diced_’” Raack, 720 S.W.2d at 943 specify period serving a time for the notice 639). McNary, 472 S.W.2d (quoting at This (d). required by supreme subsection If the need public crucial for confidence in the court that filed had intended a notice be judicial system requires to liberally us con- period required filing an within the for in strue statutes and rules favor of the application, have in Rule it could said so Raack, right disqualify. to 720 at S.W.2d 32.07(c), e.g., felony applica- “In cases the then, surprising, It not it will and a notice time when tion right litigant disqualify of a a to has presented be to the court must be filed “virtually been described as unfettered.” thirty days....” later it could than Or Gaddis, 323, Medawar v. 326 reflect an have written Rule (Mo.App.1989). speci- intent notice be served within supreme Our court has made clear Moreover, fied the court period. time had party that a in a criminal case has a necessarily that the notice accom- intended Matter judge disqualification. to one trial pany application, it could have written (Mo. Buford, 577 828 S.W.2d banc requirement. to state that rule 1979); 32.07(a) (e); Rule Rule 32.09. supreme not refer to fact that the court did Moon, Campbell also State ex rel. v. See 32.07(c), requirement in did not a notice (Mo.App.1991). If 459 32.07(d), specify period for in a time request proper is “in order” trial sense, not, temporal explicitly and did in a it, Buford, duty judge’s is to sustain 577 requirements link the us that two convinces 828; also State v. Hombuck see at S.W.2d contemplates appli- the court le, (Mo.App.1988); 584 S.W.2d may giving cation and the notice be treated 32.07(e). separate as events.3 opposition suggestions In his distinction between v. cites State prohibition, respondent purpose of notice is consistent with the (Mo.App.1988), 747 S.W.2d 635 which is to assure fairness Thompson, ex rel. v. State dis- litigants exercising privilege their v. (Mo.App.1983), S.W.2d while, the same qualify judge, trial (Mo.App.1987), Bowling, as S.W.2d time, delay proceed- avoiding undue authority denying request for the relator’s Hombuckle, ings. said in judge. He asserts these As the court for a See, e.g., joint providing apply applica- notice. 2. Rules 32.08 and 51.06 judge. State, (Mo.App. of venue and tions Bland 193-94 Wee, 1991) (citing 720 S.W.2d 409 Farnsworth involving counterpart In civil actions Rule 51.- 1986)). (Mo.App. recognize courts a distinction between society requiring party While and courts desire that service on that of a done, justice disqualification judges be and a notice of when the easy” cannot be “too or “too hard.” If presented will to the be disqualification easy, is “too both the agree Judge court. We with Greene’s ob- delay justice go cost and the out of Bowl- concurring opinion servation his hard, disqualification bounds. If is too ing that the notice requirement is for the quickly, cases decided but unfair- might benefit of the who wish to ly.” practice, Under Missouri a middle oppose application; it is not ground and a balance has been benefit of the trial 734 S.W.2d at and, sought believe, achieved, we insofar provision 577. The notion that the notice possible to do so. sup- exists to the other benefit ported by Bu- (citations omitted). following passage S.W.2d at 584-85 supreme which court stated: ford Achieving ground by that middle allow- assumption There seems to be an litigant judge may must rule on a motion for times “snarl the smooth flow a court’s paid promptly docket.... of venue price is the to be [T]hat it is judicial system moving party, that seeks to free a how- filed. ever, Re- litigant feeling from a should notice the other oppression.” of side as to Services, productive Lee, Health v. up, when the motion will Inc. be called and 330, present 660 then (Mo.App.1983) (quoting up S.W.2d 337 it or call it the before McNary, 639-40). judge. mandatory 472 S.W.2d at As as it is that a change motion for of Rule 32.07 addresses the tension de- sustained, party the other is entitled to Hombuckle, Reproductive scribed in heard, opportunity notice and an to be Services, McNary. Health and Subsec- may and he contest the timeliness (a) (e) promote tions policies the that sufficiency of the motion. “virtually underlie the right, unfettered” (emphasis original). 577 at in discussed, S.W.2d 827 litigant earlier of a to one trial judge disqualification. See, Raack, e.g., setting presentation Because the of 943; Buford, mi S.W.2d at 720 S.W.2d at by the normally is controlled 828; Campbell, Meda 401; 606 S.W.2d at calendar, see Ford Motor the trial court’s war, 326; Hombuckle, at 746 Co., 738 S.W.2d at the view that the 584; Moon, S.W.2d at 809 S.W.2d at 459.4 requirement notice serves benefit goal other does not encumber the of (c) designed Subsection is to avoid expeditious movement of cases. delay proceedings permit undue justice the trial court to administer in an interpretation Our of Rule 32.07 is influ- orderly litigant, fashion. The or the liti comparison language enced of its gant’s attorney, has exclusive control over (now predecessor, that of its Rule 30.12 when to file an repealed). A 1956 amendment added the judge. require It is not unreasonable requirement prior notice rule. Rule that the be filed within a certain 30.12, Missouri Vernon’s Annotated expeditious time frame to facilitate the (1975). Rules Following cases. See State ex rel. Ford movement amendment, provided perti- Rule 30.12 in Hess, Motor Co. part: nent 51.05). (Mo.App.1987) (applying Rule disqualified The shall be under the (d) if, protects having previ- provisions Subsection the interests of of this Rule op- seeking judge by ously given notice to the reasonable policy favoring "virtually ‘(Caption) 4. The unfettered" in to a is reflected _requests suggested application form in the 1982 Commit- (Signature attorney par- or and address tee to Rule Note 32.07: ty.)’” following application "The would be suffi- cient: P.J., (Greene, party, prose- concurring or in posite defendant S.W.2d at result). cuting attorney file an affidavit shall state, stating as the the defendant or aside, Factual distinctions it should be be, may have a fair and case cannot point apparent from our discussion to this

impartial interest reason disagree opin- that we with Jackson prejudice the judge. or interpretation of rule. ion’s stated To prior 30.12, supreme court that Of Rule extent Jackson be read said, contemplates proposition “Criminal Rule 30.12 stand for the that the Rule 32.07(d) length integral giving part of time notice an of an notice reasonable filing the affidavit....” before (Mo.1971) 32.07(c) apply time Thompson, 472 S.W.2d the Rule constraints added). only (emphasis provision, is it clear from the choose not Not we opinion. 30.12 to amendment to follow supreme Thompson and from recognize might appear it that we We contemplated court notice and the opinion place ourselves conflict with our events, separate of the affidavit illusory. Bowling. conflict above-quoted portions of rule Bowling opinion clear that the dis- makes pre- notice was to Thompson specify that on positive appeal issue cede the affidavit. allegation the defendant's trial court er- April 20, venireperson adopted failing ror to excuse a fol- Rule 32.07 was January lowing equivocal on voir dire. and became effective her answers seeming Thus Annotated Missouri our Vernon’s (Supp.1991). Bowling An to the at 115 affidavit adherence Rules 32.07(d) longer prac- notice must required, and the common court’s view the no prior accompany repre- mo- not application tice under Rule 30.12 of a does seeking change judge holding a of court. a of has been sent this tion by “simple request.” replaced a Horn Moreover, concurring opinions in buckle, significant at A S.W.2d 584.5 have not Bowling make clear we change is Rule Rule 30.12 adopted approach the notice the Jackson to requirement 32.07 contains no that notice limit requirement. Judge Holstein would precede anything presentation than other “to those cases in application of Jackson trial court. objection to timely a makes a which entering a interpretation sufficiency by of the notice of Rule 32.07 does Our 635; Williams, purpose of mak- special appearance for conflict with 747 S.W.2d Jackson, 677; objection.” at Bowling, such S.W.2d 577. 661 S.W.2d or Bowling distinguish- concurring judge in ex- Neither S.W.2d each which pressed us. the Jackson view that on its facts from the case before able accompany application, must each [application] “a of the In require- the notice applica- indicated his belief that a notice of the time when the by party not heard had not been served ment could be waived tion would be at seeking 734 S.W.2d prosecuting attorney....” a upon the multi-judge majority a Bowling, at In 577. “Where S.W.2d 636. result but general at the same although applica- of the court arrive copies defendants’ it does not respective prose- on for different reasons—where tions were served agreed the court cutors, appear majority prosecutors were not served particular as to applications reasoning as with notice of when the would cannot be ruling. ground of the for a trial court Jack- decision—the presented be point authority on the con- 678; son, at 734 considered Bowling, request for a proach incorporate the practice appears be was to described in 5. Buford See, judge itself. motion accom- the affidavit that of panied a separate into disqualifica- by e.g., affidavit at S.W.2d Thompson, 472 [9, ap- Another 10]. tion. majori curred some but less than a cation. We hold that O’Connor waived his Smith, State v. ty.” 70 right challenge S.W.2d sufficiency of the (Mo. 1967), cert. denied 393 U.S. banc notice. (1968). 89 S.Ct. 21 L.Ed.2d 176 application complied The relator’s with hold that We Rule notice Rule 32.07. The trial court should have accompany application need not promptly application. sustained the judge, and the time limitations of prohibition order is made 32.07(c) apply do not to the notice absolute. held, requirement.6 Having so we now must determine whether the relator’s no- FLANIGAN, C.J., separate concurs in provided tice to defendant him O’Connor opinion. opportunity “an heard” so that he MAUS, J., might separate opinion. dissents “contest timeliness and [application].” Buford, sufficiency of the FLANIGAN, Judge, concurring. Chief 577 S.W.2d at 827. 32.07(e) reads, I concur. Rule perti- length What constitutes a reasonable part: “If timely nent time opposing between notice to the filed, promptly shall sustain the presentation to the trial court for application....” was ruling on the is not the sub- timely duty filed. It was the ject body of an extensive of case law. We promptly. to sustain it note that in their concurring opinions in Bowling, Judge Greene said the state had MAUS, Judge, dissenting. “ample May May time” between 14 and application, to contest the Judge while Hol- I must A dissent. as a stein stated his belief that period such time right in proceeding matter of a criminal afforded the opportu- state no “reasonable governed by January effective nity object before the history 1982. The of that rule is re- ruled on the court.” 734 Thomp- State ex rel. Jackson v. viewed son, (Mo.App.1983). 661 S.W.2d 677 After However, we need not determine considering history, the court reached whether attorney “ample O’Connor’s had following concerning conclusion time” or opportunity” “a reasonable procedure required by newly-adopted “contest the timeliness and sufficien rule. cy” application, of the for we conclude he foregoing precedents clearly “The indi- protection. waived his Rule notice cate that motions to party Just as a venue may a criminal case see, must be accom- and to a right waive his to a judge, Harmon, panied e.g., by v. a reasonable notice State Perkins, present- time when the (Mo.1951); State v. motions will be 339 Mo. (Banc 1936), ed and heard by present 5.W.2d for the court. The rules, conjunctive, provision significantly whose benefit notice exists may require waive the See requirement. presentment that a notice of Bowling, (Greene, J., 734 S.W.2d at hearing opposing party. served on the Holstein, J., concurring, concurring). form.” Id. proper done in was not added.) (Emphasis at 679. attorney O’Connor’s was served with a provide That of the rule to copy application of the construction and the notice. We application proper only form already have concluded the that an objections two merit; accompanied by a reasonable notice he did make are without he made no when objection provide the notice of the time when the motion will be did not opportunity challenge appli- presented consistently recognized. him an has been is, course, nothing serving opposing party contemporaneously 6. There in Rule 32.07 that prohibit party obtaining hearing application. would with notice and a application date and then (Mo. v. 747 S.W.2d 635 State

App.1988); Bowling, State (Mo.App.1987). Cf. State ex rel. Weso Goeke, (Mo.App.

lich v.

1990); ex Ford Motor rel. Co.

Hess, (Mo.App.1987); 738 S.W.2d 147 (Mo. Wee, 720

Farnsworth v. S.W.2d 409

App.1986). nothing

There is in the rule indicate objection opposing

that an an

necessary an is not establish proper required by form Rule 32.07. token,

By objec- the same the absence of

tion, agreement parties, or even the make an not in

cannot timely

form filed the basis right. A purpose as matter of presenta- require prompt 32.07 is applications

tion of such to facilitate the

control of the docket the trial In purpose,

view of that Rule is entirety, in its I

considered believe the con- recognized

struction and other

cases cited is sound. I would adhere to my opinion,

that construction. In a trial deny properly an as a matter of

accompanied by timely-filed notice of present- will be

time when reason, quash this I

ed. For would writ prohibition. SHARAGA, Respondent,

Steve INSURANCE

AUTO OWNERS MUTUAL

COMPANY, Appellant.

WD Appeals,

Missouri Court District.

Western

5,May Rehearing and/or Transfer

Motion

Supreme Denied Court 30, 1992.

June

Case Details

Case Name: State Ex Rel. Mountjoy v. Bonacker

Court Name: Missouri Court of Appeals

Date Published: Apr 29, 1992

Citation: 831 S.W.2d 241

Docket Number: 17832

Court Abbreviation: Mo. Ct. App.