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07/26/83 EUGENE ALPER CONSTRUCTION COMPANY v. JOE

July 26, 1983

EUGENE ALPER CONSTRUCTION COMPANY, INC., APPELLANT,
v.
JOE GARAVELLI'S OF WEST PORT, INC., BERNARD H. TUREEN, AND ANN ROSE, RESPONDENTS.



From the Circuit Court of the City of St. Louis; Civil Appeal; Judge James S. Corcoran.

Before Crandall, P.j., Reinhard, Crist, JJ.

The opinion of the court was delivered by: Reinhard

Plaintiff appeals from the trial court's order granting defendants' motion for summary judgment. We affirm in part and reverse and remand in part.

Plaintiff initially filed suit against Bernard Tureen and Joe Garavelli's of West Port, Inc. (hereinafter Garavelli's) in February, 1979. In its amended petition, plaintiff alleged that at the request of defendants, between October, 1976 and March, 1977, plaintiff acted as a general contractor for the construction and erection of a restaurant in Maplewood, Missouri. Plaintiff further alleged that defendants failed and refused to pay for materials and the reasonable value of its services, the sum of $10,000.00. After a trial to a jury, a judgment in the amount of $10,000.00 was entered against Garavelli's in favor of plaintiff. A judgment in favor of Bernard Tureen was entered against plaintiff. No appeal was taken and the judgment became final.

After entry of judgment, plaintiff learned that before the filing of its amended petition, the assets of Garavelli's were sold at auction and the proceeds of $71,000.00 were transferred to the personal bank account of Bernard Tureen leaving Garavelli's judgment-proof.

Plaintiff thereupon filed a second action, naming Bernard Tureen, Garavelli's and Ann Rose as defendants. In Count I , plaintiff alleged that Garavelli's was an inactive corporation, that Bernard Tureen was the president and the sole shareholder of Garavelli's, and that Bernard Tureen and Ann Rose constituted the corporation's Board of Directors.

Plaintiff further alleged:

That defendant Bernard H. Tureen as sole owner of defendant Joe Garavelli's of West Port, Inc. had actual and legal control of said Joe Garavelli's of West Port, Inc. at all times material herein; that Bernard H. Tureen used [Garavelli's] as his vehicle to construct and erect a restaurant . . . to further his business of operating various restaurants; that defendant Bernard H. Tureen commingled the assets of [Garavelli's] with his personal funds.

That defendant Bernard H. Tureen inadequately capitalized the corporate defendant [Garavelli's] and caused the assets of [Garavelli's] to be dissipated and wrongfully paid to said defendant Bernard H. Tureen without paying the claim of plaintiff and other creditors thus intentionally defrauding plaintiff.

That Bernard H. Tureen is the alter ego . . . of defendant [Garavelli's].

Plaintiff prayed for damages of $10,000.00.

In Count II, plaintiff alleged that Bernard Tureen and Ann Rose fraudulently declared and paid a dividend in March, 1979 without making provision for the payment of the debts of Garavelli's as required by § 351.345, RSMo. 1978. This statute states that:

he directors of a corporation who shall knowingly declare and pay any dividend except as permitted by . . . the provisions of sections 351.210 and 351.220 *fn1 . . . shall be jointly and severally liable for all the debts of the corporation then existing . . . provided, that the amount for ...


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