Cornejo v. Crawford County, No. 26340.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Robert S. Barney
• Citation: 153 S.W.3d 898
• Docket Number: No. 26340.
• Decision Date: 28 January 2005
• Parties: Arthur CORNEJO, d/b/a J & D Janitorial Services, Respondent, v. CRAWFORD COUNTY, Missouri, Appellant.

153 S.W.3d 898 Arthur CORNEJO, d/b/a J & D Janitorial Services, Respondent,
v.
CRAWFORD COUNTY, Missouri, Appellant. No. 26340. Missouri Court of Appeals, Southern District, Division Two. January 28, 2005.

[153 S.W.3d 900]

Sidney T. Pearson, III, Steelville, for appellant.

John D. Beger, Beger, Bushie & Scheiderer, L.L.C., Rolla, for respondent.

ROBERT S. BARNEY, Judge.

Crawford County, Missouri, ("Appellant") appeals from the trial court's grant of summary judgment in favor of Respondent Arthur J. Cornejo ("Respondent"). In its two allegations of trial court error arising out of a contract action, Appellant first alleges summary judgment was improper because there was no showing of a contractual relationship between Appellant and Respondent and, second, Appellant alleges the trial court failed to apply the correct measure of damages in awarding summary judgment in favor of Respondent. We affirm the judgment of the trial court.

The record reveals that on April 13, 2001, Appellant entered into a contract with "J & D Janitorial Services, LLC" ("J & D"). The document reveals the signature of Appellant's three county commissioners and also shows that Respondent affixed his individual signature, i.e., "Arthur J. Cornejo," to the document, along with the title designation of "Owner." The contract provided that in exchange for providing weekday janitorial services for the Crawford County Courthouse and Annex, Appellant would pay Respondent $1,600.00 per month for a period of twenty-four months.

From April 13, 2001, until May 17, 2002, Respondent provided janitorial services pursuant to the terms of the contract. On May 17, 2002, Appellant notified Respondent it was suspending his contract due to Respondent's arrest on felony drug charges. According to Appellant, the contract was suspended because Respondent's "cleaning of the courthouse would have required access to the offices in which files are maintained concerning the criminal charges against him." At that time, there were approximately eleven and a half months remaining on the contract. Appellant declined to exercise a provision in the contract, namely paragraph "4", which set out that the "[c]ontract may be voided by either party with a 30 day written notice."

On March 20, 2003, Respondent filed a breach of contract suit against Appellant. This suit alleged Appellant "arbitrarily, capriciously and without just cause or excuse" breached its contract with Respondent and requested judgment in his favor and against Appellant in the amount of $17,600.00 plus interest and costs.

Respondent filed a motion for summary judgment on January 6, 2004, in which he

153 S.W.3d 901

stated "there is no genuine issue as to any material fact" and that a judgment should be entered as a matter of law. He also attached a memorandum in support of his motion, together with an affidavit from Respondent and other documents.

In response, Appellant filed a one page answer to the motion for summary judgment asserting that Respondent was not entitled to judgment as a matter of law, and that there were facts in dispute that the fact finder had to determine at trial. In addition, Appellant filed a memorandum in opposition to the motion for summary judgment. No affidavits were filed in support of its response.

Following argument by both sides, the trial court granted Respondent's motion and entered a judgment against Appellant in the amount of $18,400.00 plus $2,429.14 in interest. This appeal followed.

In its first point on appeal, Appellant maintains the trial court erred in granting Respondent's motion for summary judgment and in assessing damages against it. Specifically, Appellant maintains

there was no showing of any contractual relationship between Appellant and Respondent, in that any contract was between J & D Janitorial Services, LLC, a legal entity, and Crawford County, and a member, manager, employee or agent of a limited liability company is not a proper party to proceedings by or against a limited liability company, pursuant to section 347.069. . . .

We begin by noting a claim that a suit should have been filed in the name of a certain entity is waived if it is not raised by pleading or motion in accordance with Rules 55.13 and 55.27(g)(1)(E).¹ Executive Jet Mgmt. & Pilot Serv., Inc. v. Scott, 629 S.W.2d 598, 611 (Mo.App.1981). Even if a party enters a responsive pleading alleging a party lacks the capacity to sue, a general denial is not sufficient to constitute a "specific negative averment" as required by Rule 55.13. See Gilmore v. Bi-State Dev. Agency, 936 S.W.2d 193, 194 (Mo.App.1996). Further, in pertinent part, Rule 55.27(g)(1) sets out that a challenge "[t]hat plaintiff does not have legal capacity to sue" is waived if "[o]mitted from a motion in the circumstances described in Rule 55.27(f)," or when "[n]either made by motion under this Rule 55.27 nor included in a responsive pleading." Rule 55.27(g)(1); see also Boatmen's First Nat'l Bank v. Roofco Sys., Inc., 852 S.W.2d 402, 404 (Mo.App.1993).

Here, Appellant argues there was no showing of a contractual relationship between Respondent and Appellant; however, Appellant's argument fails for several reasons. First, Appellant did not raise the issue of Respondent's standing to sue in a responsive pleading before the trial court. Secondly, Appellant failed to specifically raise the issue in his response to Respondent's motion for summary judgment at the hearing on the summary judgment motion. Claims that a party lacks the capacity to sue or be sued must be raised in a responsive pleading under both Rule 55.13 and Rule 55.27(g)(1)(E). See Petry Roofing Supply, Inc. v. Sutton, 839 S.W.2d 337, 341 (Mo.App.1992). Accordingly, Appellant waived this issue. In this instance, Respondent's capacity to sue cannot be raised for the first time on appeal. See Pemiscot County Mem'l Hosp. v. Bell, 770 S.W.2d 499, 502 (Mo.App.1989). Point denied.

In its second point on appeal, Appellant maintains the trial court erred in awarding...