Supreme Court of Virginia

Transcription

1 IN THE Supreme Court of Virginia AT RICHMOND Record No DANA V. WILCOX, JR. DIANE L. WILCOX, APPELLANT v. DEC 1 ' LAUTERBACH ELECTRIC CO., INC., APPELLEE. APPENDIX Dana V. Wilcox, Jr th Street Alexandria, Virginia (H) (0) APPELLA TE PRI NTING SERVICES HERITAG E BUILDING RICHMOND, VIRGINIA (

2 TABLE OF CONTENTS PAGE 1. MOTION FOR JUDGEMENT, FILED MAY 15, ~-l- 2. CIRCUIT ORDER ASSI GN MENTS OF ERROR

3 V I R G I N I A IN Tm; CIRCUIT COURT OF THE CITY OF FREDERICKSBURG LAUTERBACH ELECTRIC CO., INC., a Virginia corporation, v. Plaintiff, WILCOX CONSTRUCTION COMPANY, a Virginia corporation INC., Serve: Dana V. Wilcox, Jr., Registered Agent Barrister Place Woodbridge, Virginia DANA V. WILCOX, JR Barrister Place Woodbridge, Virginia and DIANE L. WILCOX Barrister Place Woodbridge, Virginia 22192, Defendants. MOTION FOR JUDGMENT COM.ES NOW the plaintiff, Lauterbach Electric Co., Inc., by counsel, and moves for judgment against defendants on the grounds and in the amount as hereinafter set forth: COUNT ONE 1. Plaintiff Lauterbach Electric Co., Inc. (Lauterbach) is a corporation organized and existing under the laws of the State of Virginia, having its principal place of business at Richmond, Virginia. 2. Defendant Wilcox Construction Company, Inc. (Wilcox Construction) is a corporation organized and existing under the "') - /.. :i. g ~ (_v ~: 50 tt'nv rrtr... AG N~ A. WI U...S, CL.iiiRl< BY )1 f f(~;µ.j OlrPUTY 1

4 laws of the State of Virginia, having its principal place of business in Woodbridge, Virginia. 3. Defendant Dana V. Wilcox, Jr. (Mr. Wilcox) is the president of defendant Wilcox Construction and has served in this capacity since before November, Defendant Diane L. Wilcox (Mrs. Wilcox) is the secretary and treasurer of defendant Wilcox Construction and has served in this capacity since before November, Wilcox Construction was the general contractor to George Washington Executive Center, Inc., the owner, on a renovation contract for the George Washington Executive Center ( GWEC") located in the City of Fredericksburg, Virginia ( the renovation contract ). 6. On or about November 12, 1984, Wilcox Construction and Lauterbach entered into a written subcontract, whereby Lauterbach agreed to provide materials and design work and to perform for Wilcox Construction certain laoor on the electrical portion of the aforesaid renovation contract ("the subeontract"). A copy of said subcontract is attached as Exhibit A" to this motion for judgment and made a part hereof. 7. Lauterbach performed services, billed for its services, and received payment for such work under the subcontract in the total amount of $130, Lauterbach has performed additional services, has billed for these services and, to date, has not received payment -2-2

5 under the subcontract in the amount of $120, Throughout the period of time during which Lauterbach performed work and provided materials Wilcox Construction never complained about the quality of the work performed or the adequacy of the materials furnished on the subcontract. 10. Wilcox Construction, through the deliberate actions of Mr. and Mrs. Wilcox, intentionally withheld funds from Lauterbach and unlawfully diverted said funds paid by the owner on the renovation contract to the personal use of Mr. and Mrs. Wilcox which funds were required to be paid to Lauterbach and other subcontractors for work performed on the GWEC. 11. Wilcox Construction is in default under the terms of the renovation contract and its subcontract with Lauterbach. 12. Mr. and Mrs. Wilcox and Wilcox Construction have refused to pay Lauterbach the amount of $120, together with accrued finance charges and interest, and attorney fees although demand has been made and said amounts are due and payable under the terms of the subcontract. 13. Wilcox Construction subsequent to its default on the subcontract ceased further construction on the GWEC and performance under the renovation contract. 14. As a result of the failure to perform under the renovation contract and the breach of subcontract by defendants, Lauterbach will also suffer lost profits on the uncompleted por- -3-3

6 tion of the subcontract. COUNT TWO 15. Lauterbach re-alleges and incorporates herein by reference the allegations appearing in paragraphs 1 through 11 of Count One of this Motion For Judgment. 16. Mr. and Mrs. Wilcox and Wilcox Construction are indebted to Lauterbach for labor performed and mlterials provided in the amount of $120, as reflected below together with accrued finance charges and interest, attorney fees, and costs which are further supported by the attached Affidavit and Verified Statement of Account as "Exhibit B" to this Motion For Judgment: A. Charges Invoice Date November 12, 1984 November 30, 1984 December 31, January 31, February 1, 1985 Invoice Amount $ 50, , , , , TOTAL CHARGES $250, B. Payments and Credits December 11, 1984 December 28, 1984 $100, , TOTAL CREDITS BALANCE DUE $130, $120,

7 COUNT THREE 17. Lauterbach re-alleges and incorporates herein by reference the allegations appearing in Paragraphs 1 through 13 of Count One of this Motion For Judgment. 18. The actions of Mr. and Mrs. Wilcox and Wilcox Construction in diverting the funds as aforesaid were deliberate, wilfull, wanton, and with the intent to defraud Lauterbach of monies due and owing under the subcontract. WHEREFORE, Lauterbach demands judgment against defendants Wilcox Construction Company, Inc., Dana V. Wilcox, Jr. and Diane L. Wilcox jointly and severally, in the amount of $120, together with finance charges and interest thereon at the rate of one and one-half percent per month compunded monthly, lost profits, attorney's fees, and punitive damages in the amount of $500,000. LAUTERBACH ELECTRIC CO., INC. By /) --- (. ( it Coun~ William N. Pollard C. Allen Riggins PARKER, POLLARD & BROWN, P.C Staples Mill Road Richmond, Virginia { 804)

8 FREE ESTIMATES au~.!rbach 0/ectric Co., Jnc QUALITY ELECTRICAL CONTRACTOR 4029 MacArthur Avenue Richmond. Virginia November 12, STATE REG No Mr. Dana Wilcox Wilcox Construction Co., Inc Barrister Place Woodbridge, VA Dear Sir : As per our verbal agreement, subsequent to your signing of our proposal dated November 17, 1984, we propose to furnish, wire and install all electrical work for the General Washington Inn as shown on our revised ~overnber 5, 1984) prints for the following amount: We will "spread" all material invoices, expenses, labor, etc., acquired by our firm for the successful completion of this project for the owner's review at each billing date, which will be somewhere in the proximity of the end of each month. Material that is sent from our warehouse will be priced at "NET CONTRACTOR", from the TRADE SERVICE PUBLICATION pricing service. All print fees, storage costs, material costs, and justifiable expenses incidental to the job will be charged as per the invoice. Labor costs will be accrued at the rate of $17.50 per man-hour from our daily work forms. To these costs described above will be added 6% NET PROFIT. We agree that the owner will not pay more than $267, for the work shown on the prints. We expect no retention of funds. We expect payment in full within 10 working days of the month's billing. We will make every effort to complete the project by Christmas of 1984, however, no overtime is figured in our bid price. Because material was ordered on the owner's authority without a completed set of prints, any overshipments will become the property of the owner. No credit will be issued by this firm for overshipments unless each item is separtely negotiated. After 30 days, o, int erest rate and finance charge of 1~% 6

9 Page 2 Mr. Dana Wilcox November 12, 1984 compounded ~onthly will be added to the bill. The owner will be responsible for attorney fees and court costs if necessary for collection. The signatures at the bottom of this document are indicative of agreement between all parties to the stipulations stated herein, and effectively make this document into a binding contract. Dana V. Wilcox Owner Wilcox Construction Co., I nc. Date u/t.s / ~ I W.E. Denton, Jr. President Lauterbach Electric Co., Inc Date J/-ll. $ q WED/ ehh 7

10 EX!lI!_, J T B V I R G I N I A IN THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG LAUTERBACH ELECTRIC CO., INC., v. Plaintiff, WILCOX CONSTRUCTION COMPANY, INC. and DANA V. WILCOX, JR., Defendants. AFFIDAVIT AND VERIFIED STATEMENT OF ACCOUNT STATE OF VIRGINIA COUNTY OF HENRICO, to-wit: This day personally appeared before me William E. Denton, Jr., who being sworn, stated as follows: 1. That he is Vice-President and Secretary of Lauterbach Electric Co., Inc. ( Lauterbach"), a Virginia corporation with its principal office and place of business in the City of Richmond, Virginia. 2. Pursuant to written contract, Lauterbach furnished Wilcox Construction Co., Inc. with materials and labor to be used in and about the renovation of the George Washington Executive Center in the City of Fredericksburg, Virginia. 3. That such materials and labor were furnished from on or about October 17, 1984 until March 1,

11 4. That to the best of affiant's belief Wilcox Construction Co., Inc. is truly and justly indebted to Lauterbach in the amount of $120, and with finance charge and interest thereon, as reflected in the following account: A. Charges Invoice Date November 12, 1984 November 30, 1984 December 31, 1984 January 31, 1985 February 1, 1985 Invoice Amount $ 50, , , , , TOTAL CHARGES $250, B. Payments and Credits Date December 11, 1984 December 28, 1984 $100, , TOTAL CREDITS BALANCE DUE $130, $120, (c) Finance charge and interest are due at 1 1/2% compounded monthly under the contract from the dates as shown: Invoice Date 11/30/ 84 12/ 31/84 1/31/85 2/ 1/ 85 Unpaid Invoice Amount $ 1, , , , $120, Beginning Finance Charge and Interest Date 12/31/ 84 1/31/85 2/31/85 3/ 1/85 (d) Attorney fees and court costs are horized. -2-

12 Subscribed and sworn to before me this day of May, My commission expires: C-..Q..ta..n'\.~ ' le \<\'{~ Notary Puol ic -3-10

13 ~ \jrginia: --~...., '--'-... IN THE CIRCUIT COURI' OF THE CITY OF FREDERICKSBURG ~. I..ALIT'ERBACH ELECI'RIC co. I INC. I Plaintiff I v. WI LCOX ~STRUCTIOO CXl1PANY I INC. I DANA v. WILCOX, JR. I. ani. f DIANE L. ). ". L WILCOX, Defendants. ORDER THIS CAUSE carre to be heard upon the M:>tion for Judgrrent filed herein and upon M:>tion by oounsel for Plaintiff that default judgment be entered against Defendants Wiloox Construction catpa.ny, Inc., Dana V. tviloox, Jr. and Diane L. Wilcox; AND it appearing unto the Court, upon examinat ion of the service of process anc the duly executed return thereon, that rrore than twenty-one (21) days have elapsed since service upon the defendants of Plaintiff ' s M:>t i on for Judgment and that responsive pleadings have been tirrely filed by the Defendants in this action, ho.vever twenty- one (21) days follo.ving dismissal of the Cllapter 11 proceedings elap5ed before the filing of additional responsive pl eadings, the Court finds that Plaintiff is entitled to judgr.-ient against the defendants for breach of contract and for frauc. as set forth in Counts One, '!Wo and Three of Plaintiff's M:>tion for Judgment and in the arrount sued for as 11

14 #9tlown by said pleading and--jiat~~i.f.f 's Affidavit and Verified Statement of Account. IT I~HEREFORE, ADJUDGED and ORDERED that the Plaintiff Lauterbach Electric Co., Inc., recover and have judgment against t~e Defendants, Wilcox Construction Company, Inc., Dana V. ; Wilco x, Jr. and Diane L. Wilcox, jointly and severally, for the sum of $120,628.77, plus finance charges for six months at 1 1/2% f pe~ month in the total amount of $10, , plus interest :. ).. thereon at judgment rate from the date of judgment until, L sa.tisfied in full, plus attorney fees in the amount of $32,871.34, plus costs incident to this proceeding in the amount of $ AND IT IS FURTHER ORDERED that the issue of punitive damages against defendants shall remain pending and shall be res erved for further adjudication in this action. ENTER: AVG. r.. I 1 ~ We As k For This: '.... (\ ~J -- M William N.~lard C. Allen Riggins PARKER, POLLARD & BROWN, P.C Staples Mill Road Ric hmond, Virginia (804) COUNSEL FOR PLAINTIFF Judge -2-12

15 ASSIGNMENT OF ERROR Mr. and Mrs. Wilcox assign the following as error: 1. The trial court erred in refusing to vacate the default judgment against Mr. and Mrs. Wilcox even though they had filed responsive pleadings in a timely manner. 2. The trial court abused its discretion by refusing to vacate its default judgment against Mr. and Mrs. Wilcox and by refusing to grant Mr. and Mrs. Wilcox' motion for extension of time in which to file answers. 3. The trial court erred in refusing to vacate its default judgment against Mr. and Mrs. Wilcox when the Motion for Judgment failed to allege a cause of action against Mr. and Mrs. Wilcox which could support personal liability for the debts of Wilcox Construction. 4. The trial court erred in refusing to vacate its default judgment against Mr. and Mrs. Wilcox where the court lacked sufficient evidence on the damages, if any, resulting from the Wilcox' individual actions and where the Wilcoxes were not given an opportunity to present evidence or cross examine witnesses as to damages. 13

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