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Wilken Inv. LLC v. Plamondon III

Trial court erred by dismissing claims against defendant with prejudice because the defendant was not served prior to entry of judgment against other defendants and dismissal for failure to prosecute a case is not a judgment on the merits.

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Wilken Investments, Kenneth Pennington and William Pennington collectively “Wilken” appeal from the trial court’s order granting William Plamondon’s motion to dismiss Wilken’s claims against him with prejudice. Wilken contends that the trial court’s order is incorrect on its face and any claims dismissed should have been without prejudice. Because there is nothing in the trial court’s order that allows us to determine upon what grounds the trial court granted the motion to dismiss or what evidence it considered in determining that the dismissal would be with prejudice, we vacate the order and remand the case to the trial court for clarification. The evidence in the record shows that Wilken Investments sued Heller Acquisition and William Plamondon individually, claiming, among others, breach of contract, fraudulent transfer of assets, conversion, attorney fees, and punitive damages. Wilken filed a second amended complaint on October 27, 2008, alleging conversion against both Heller and Plamondon, a request for attorney fees, and a claim for $100,000 against Plamondon for engaging in a conflict-of-interest transaction resulting in an unauthorized distribution to either Plamondon himself or Heller.

Wilken was granted summary judgment on two of its claims against Heller, and later obtained a default judgment on all of its remaining claims when Heller did not appear for trial. At the time of the default judgment against Heller, Plamondon had never been served in his individual capacity.

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