Hanrahan v. Nashua Corp., 53608

• Decision Date: 03 May 1988
• Docket Number: No. 53608,53608
• Citation: 752 S.W.2d 878
• Parties: Philip HANRAHAN, Plaintiff-Appellant, v. NASHUA CORPORATION, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 878

752 S.W.2d 878

Philip HANRAHAN, Plaintiff-Appellant, v. NASHUA CORPORATION, Defendant-Respondent.

No. 53608.

Missouri Court of Appeals,

Eastern District,

Division Five.

May 3, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 1, 1988.

Application to Transfer Denied July 26, 1988.

Fred Roth, Clayton, Russell Anthony Willis III, Ellisville, for plaintiff-appellant.

Patricia McFall, Thomas M. Hanna, St. Louis, for defendant-respondent.

SIMEONE, Senior Judge.

This is an appeal by plaintiff-appellant, Philip Hanrahan, from an order entered on August 5, 1987, designated as final, by the circuit court of the City of St. Louis dismissing Counts II and III, and striking certain portions of Count I, of the appellant's fourth amended petition. We dismiss the appeal as to Count I and affirm the order as to the other counts.

Appellant, Philip Hanrahan, had been employed as a salesman by the defendant-respondent, Nashua Corporation of New Hampshire, as its St. Louis area manager from 1960 through April, 1981. At all times appellant was an employee-at-will. On April 10, 1981, at the age of 53, his employment was terminated. On January 7, 1982, he commenced a civil suit in one count against Nashua for failure to provide him a service letter, pursuant to § 290.140, R.S.Mo.1986. He subsequently filed amended petitions, amending the service letter count and adding other counts. On June 8, 1987, appellant filed his fourth amended petition. That petition is in four counts. Count I sought damages for the failure of Nashua to provide him with a proper service letter stating the true nature and character of his work, and the true reason for his separation, and for failing to state certain particulars concerning his termination because of his age. Count II originally sought damages and attempted to allege a claim of "bad faith in breaching its [Nashua's] implied contract" with appellant in that certain "established company policies were not followed." After Nashua filed a motion to dismiss, this count was amended by interlineation to assert that the defendant "has shown by its acts, has shown tortious interference with Plaintiff's business relationship in that [certain] established company policies were not followed...."

Count III sought to allege a claim of fraud. Appellant alleged that defendant concealed from his personnel file favorable recommendations for advancements and promotions so that by "fraud and deceit," and with intent to damage, defendant hid or destroyed certain documents so as to cause him to "separate himself from his employment" and be "denied income, retirement, insurance and pension benefits." The petition alleged defendant represented that "all of his documents were contained in his personnel file when in truth and in fact Defendant knew said favorable documents to Plaintiff had been hidden and concealed." Count III also alleged that "said representations were material" and that he "relied" upon the "truthfulness of said representation." As a result, he alleged that he suffered damages in losing his employment, retirement and pension benefits. Count IV sought punitive damages, ancillary to Count III.

On June 22, 1987, Nashua filed a motion to strike all references to plaintiff's age and retirement benefits in the fourth amended petition because appellant had earlier sought recovery in a civil suit based on allegations of age discrimination, pursuant to the federal Age Discrimination In Employment Act, 29 U.S.C. § 621 et seq. and Chapter 213, R.S.Mo.1986. This earlier civil suit was dismissed by the circuit court.

On the same date Nashua filed a motion to dismiss Counts II and III of the fourth amended petition, or in the alternative, for summary judgment, for the reasons, inter alia, that Count III (fraud) failed to state the facts constituting fraud, with particularity. Rule 55.15. The motion further alleged that plaintiff cannot show he was proximately injured by any "concealment" or that he relied thereon to his detriment. The motion did not attack the "tortious interference" allegations amended by interlineation, because appellant amended his fourth amended petition after the motion to dismiss was filed.

On August 5, 1987, the trial court sustained Nashua's motion to dismiss Counts II (tortious interference) and III (fraud) and sustained Nashua's motion to strike all allegations in Count I (service letter) with reference to appellant's age and retirement benefits. The trial court designated the order a final one for purposes of appeal. Rule 81.06, the Rule in effect at the time of the order. Rule 81.06 has been repealed. See Rule 74.01 effective January 1, 1988. The court did not rule on the alternative motion for summary judgment.

Appellant raises three points on appeal. He contends that the trial court erred (1) in dismissing Count II because the petition states a claim for tortious interference, (2) in dismissing Count III because the petition states a claim in fraud, and (3) in striking the references to age and retirement benefits from Count I because he complied with federal and state law. In the alternative, appellant contends that the court erred in granting summary judgment because there were genuine issues of material fact to be resolved.

Initially we make two observations: First, Rule 74.04 is not applicable. The only matters outside the pleadings presented to the trial court were matters relating to age and retirement benefits in connection with respondent's motion to strike such references. Before a motion to dismiss may be treated as a motion for summary judgment, when matters outside the pleadings are presented [Rule 55.27(a) ], the court must notify the parties it is so doing. See Laclede Gas Company v. Hampton Speedway Company, 520 S.W.2d 625, 629 (Mo.App.1975). The trial court did not do so. Therefore we review the order of the trial court in that perspective to determine whether the fourth amended petition states a claim.

Secondly, while the order dismissing Counts II and III is appealable, the order striking all references to age discrimination in Count I (the service letter count) is not an appealable order. The court left intact the service letter count but struck all references to age discrimination and retirement benefits. That count is still pending.

The most recent decision by the Supreme Court construing Rule 81.06, prior to its repeal, is Speck v. Union Elec. Co., 731 S.W.2d 16 (Mo. banc 1987). In Speck, the court reexamined the rulings under Rule 81.06 and held, inter alia, that before a trial court may in its discretion designate a partial disposition final for purposes of appeal under the second sentence of Rule 81.06, there must have been "a separate trial ... before the court without a jury of claims arising out of the same transactions, occurrences or subject matter as the other claims stated or joined in the case." Where such is not the case, the second sentence of Rule 81.06 is inapplicable and it is not within the court's discretion to designate its order final for purposes of appeal. Where there is simply a pretrial order relating to a procedural matter, there is no final judgment or order for purposes of appeal. Harting v. Stout, 690 S.W.2d 458, 459 (Mo.App.1985)--order imposing sanction; Daniels v. Richardson, 665 S.W.2d 76, 77 (Mo.App.1984); Wirthlin v. Wirthlin, 662 S.W.2d 571, 572 (Mo.App.1983)--motion to transfer cause from equity to jury trial docket; Fombelle v. Poteete, 655 S.W.2d 801, 802 (Mo.App.1983). The order striking references to age discrimination in Count I, but leaving intact the service letter count, is therefore not an appealable order since it relates only to a procedural matter and is not a final order for purposes of appeal. See Speck v. Union Elec. Co., supra, 731 S.W.2d fn. 3 at 20-21. However, the order dismissing Counts II and III is appealable. The hearing on the motion to dismiss Counts II and III for failure to state a claim is considered as a separate trial before the court without a jury and the dismissal order was designated as final for purposes of appeal. See Johnson v. Great Heritage Life Insurance Co., 490 S.W.2d 686, 689 (Mo.App.1973); Spires v. Edgar, 513 S.W.2d 372, 376 (Mo. banc 1974).

We therefore consider the merits of the order dismissing Counts II and III and the ancillary Count IV.

In ruling on a motion to dismiss, we accept as true all the averments in the amended petition, and all the reasonable inferences therefrom, and we construe the amended petition most favorably to the appellant, and grant it every reasonable intendment in light of all the facts alleged. Schimmer v. H.W. Freeman Construction Co., 607 S.W.2d 767, 769 (Mo.App.1980); French v. Jochens, 642 S.W.2d 677, 678 (Mo.App.1982). Even under these liberal pleading principles, Counts II and III, and the ancillary Count IV of the fourth amended petition fails to state a claim upon which relief can be granted.

The court did not err. Count II--the tortious interference count--failed to allege the essential elements of intent to interfere or that the acts were done without justification. See Fischer, Etc. v. Forrest T. Jones & Co., 586 S.W.2d 310, 315 (Mo. banc 1979); Pillow v. General American Life Ins. Co., 564 S.W.2d 276, 280 (Mo.App.1978).

To properly plead the tort of interference with business relations, plaintiff must allege:

(1) A contract or a valid business relationship or expectancy;

(2) Defendant's knowledge of the contract or relationship;

(3) Intentional interference by the defendant inducing or causing a breach of contract or relationship;

(4) Absence of justification; and

(5) Damages resulting from defendant's conduct.

See, e.g., Herring v. Behlmann, 734 S.W.2d 311, 314 (Mo.App.1987).

Plaintiff's petition alleges defendant's acts constituting "interference" included setting unrealistic sales quotas, restricting his sales territory, failing to competitively price its products, producing...