Wheeling Kitchen Equipment Co. v. R & R Sewing Center, Inc.

179 S.E.2d 587, 154 W. Va. 715, 1971 W. Va. LEXIS 233
CourtWest Virginia Supreme Court
DecidedFebruary 9, 1971
Docket12932
StatusPublished
Cited by17 cases

This text of 179 S.E.2d 587 (Wheeling Kitchen Equipment Co. v. R & R Sewing Center, Inc.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wheeling Kitchen Equipment Co. v. R & R Sewing Center, Inc., 179 S.E.2d 587, 154 W. Va. 715, 1971 W. Va. LEXIS 233 (W. Va. 1971).

Opinions

Browning, Judge:

This is an appeal from a final order of the Monongalia County Circuit Court entered on December 19, 1969, in an action instituted by Wheeling Kitchen Equipment Company, Inc., a corporation, appellee herein, against R & R Sewing Center, Inc., a corporation, and E. Claude Kelly, appellant herein.

On August 1, 1969, appellee brought action against R & R Sewing Center, Inc., upon the following complaint:

* * *
Defendant owes plaintiff Five Thousand, Four Hundred Forty-Seven Dollars and Seventy-One Cents ($5,447.71) for goods sold by plaintiff to defendant [716]*716from September 23, 1968, to June 10, 1969 ... together with interest thereon at the rate of six per cent per annum.
WHEREFORE, Plaintiff demands judgment against the defendant in the amount of Five Thousand, Four Hundred Forty-Seven Dollars and Seventy-One Cents ($5,447.71), with interest thereon from the 10th day of June, 1969, together with the costs expended by the plaintiff in this action.

According to appellant, it then became apparent “that any judgment [appellee] might obtain against R & R would be uncollectible . . . .” Recause of this, appellee moved to amend the complaint so as to include appellant Kelly, president of the corporation, as a party defendant, which motion was granted. The amended complaint differed only from the original complaint in this respect: The name “E. Claude Kelly” was added as a party defendant in the style of the case and the word “defendant” was made plural wherever it appeared in the original complaint. Otherwise, there were no new allegations or charges in the complaint whatever.

In response to the above, appellant filed the following answer:

* * *
Defendant, E. Claude Kelly, by way of answer to the amended complaint, denies that any goods were ever sold to him personally by the Wheeling Kitchen Equipment Company, Inc., a corporation.
WHEREFORE, defendant, E. Claude Kelly, demands judgment dropping him as a party defendant to this suit.
* * *

On December 10, 1969, appellee moved for summary judgment against Kelly personally.' In support thereof, appellee filed the affidavit of one Robert Higbee, appellee’s comptroller, which stated that Higbee had been present at the talcing of a deposition of Kelly with respect to an unrelated civil action. In addition, the affidavit stated that Higbee heard [717]*717Kelly testify at that time, “whereupon it appeared beyond doubt” to Higbee that Kelly “used the banking accounts and all other assets of [R & R Sewing Center, Inc.] for his personal benefit and convenience to the extent that he paid personal debts from said banking accounts, withdrew money for his personal use at his pleasure and in all ways used the assets of said corporation for his own individual needs.”

Upon this motion for summary judgment, the above-mentioned affidavit, and an affidavit of Kelly wherein he asserted that he, as manager, “was acting for the corporation at all times in which he was handling corporate money,” the circuit court granted summary judgment against Kelly personally. It is from this summary judgment that he appeals. On March 2, 1970, an appeal was granted, and on January 25, 1971, the case was submitted for decision upon brief and argument of counsel for appellant, and appellant’s motion to reverse, filed December 26, 1970.

Appellant assigns as error the court’s allowing the plaintiff to add Kelly as a party defendant by merely typing his name into the style of the case, and then granting summary judgment against him personally as president of the corporation on the theory of “piercing the corporate veil” when that theory had not been alleged in the complaint, and when there was no competent evidence before the trial court upon which to base such a judgment against the appellant personally.

The initial issue raised by the appellant then is whether the granting of the motion to add him as a party was proper. However, the real contention of Kelly is the theory upon which the plaintiff sought the judgment against him, that is, the piercing of the corporate veil, citing Atwater & Co., Inc. v. Fall River Pocahontas Collieries Co., 119 W.Va. 549, 195 S.E. 99 (1937). In that case this Court denied relief to one of two creditors because there was no allegation in the pleadings upon which the theory of piercing the corporate veil could be predicated. There are several decisions of this Court to the same effect, but all were rendered prior to the adoption and promulgation by this Court of Rules of Civil Procedure. There can be no doubt that prior to the adoption of those rules the [718]*718position of the appellant on this issue would be unassailable. For example, in Vance Shoe Co. v. Haught, 41 W.Va. 275, 23 S.E. 553 (1895), this Court held in the first syllabus point: “There can be no decree without allegations in the pleading to support it.” In Black v. Crouch, 85 W.Va. 22, 100 S.E. 749 (1919) and several other decisions of this Court, it was held that a judgment or decree cannot extend beyond the pleadings. R.C.P. 8(a) provides:

A pleading which sets forth a claim for relief... shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.

In the Appendix of Forms following the Rules of Civil Procedure, Form 5 suggests that it is sufficient if the complaint alleges that the “Defendant owes plaintiff ten thousand dollars for goods sold and delivered by plaintiff to defendant between June 1, 1954 and December 1, 1954. [Wherefore plaintiff demands judgment against defendant for the sum of ten thousand dollars, interest and costs.]” This is the first case since the adoption of those rules in which this question has been raised, but it is the view of the Court that the allegations of the complaint were sufficient, and if there was any doubt in Kelly’s mind as to why he was being made a party, the rules provide means by which that could be ascertained. Furthermore, the “motion to join additional party defendant,” which, of course, became a part of the record, informed Kelly in clear and unambiguous language the basis for the relief which the plaintiff would seek against him. This is a quote from that motion.

* * *
1. This is an action based upon the sale of merchandise by the plaintiff to R & R Sewing Center, Inc.
2. The proposed additional defendant, E. Claude Kelley [sic], is the principal stockholder of the aforesaid corporation and has been using said corporation as a means of avoiding personal liability for his business activities.
[719]*7193. The aforesaid additional proposed defendant E. Claude Kelley [sic], has been the president of R & R Sewing Center, Inc. and has used its assets for his own personal purposes during the past several months of its operation, co-mingling his personal assets with those of said corporation and drawing corporate funds for his own use at his pleasure.
* * *

It is our opinion that appellant Kelly did, indeed, have notice of why he was being made a party defendant to the action.

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Wheeling Kitchen Equipment Co. v. R & R Sewing Center, Inc.
179 S.E.2d 587 (West Virginia Supreme Court, 1971)

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Bluebook (online)
179 S.E.2d 587, 154 W. Va. 715, 1971 W. Va. LEXIS 233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wheeling-kitchen-equipment-co-v-r-r-sewing-center-inc-wva-1971.