Defino v. Civic Center Corp.

• Decision Date: 15 July 1986
• Docket Number: No. 50843,50843
• Citation: Defino v. Civic Center Corp., 718 S.W.2d 505 (Mo. App. 1986)
• Parties: 1986-2 Trade Cases P 67,207 Ronald DEFINO, et al., Plaintiffs-Appellants, v. CIVIC CENTER CORPORATION, et al., Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 505

718 S.W.2d 505

1986-2 Trade Cases P 67,207

Ronald DEFINO, et al., Plaintiffs-Appellants, v. CIVIC CENTER CORPORATION, et al., Defendants-Respondents.

No. 50843.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 15, 1986.

Motion for Rehearing and/or

Transfer to Supreme Court

Denied Sept. 17, 1986.

Application to Transfer

Denied Nov. 18, 1986.

Theodore F. Schwartz, Barry S. Ginsberg, Clayton, for plaintiffs-appellants.

Alan C. Kohn, John A. Klobasa, St. Louis, for Sportservice Corp.

Terrence C. Sheey, Peter E. Moll, Lewis M. Barr, Washington, D.C., Frank N Gundlach, John Warshawsky, St. Louis, for respondent Civic Center Corp.

KAROHL, Presiding Judge.

Plaintiffs, self-employed vendors, appeal from an order of the trial court dismissing their petition for failing to state a cause of action against defendants, Civic Center Corporation (Civic Center) and Sportservice Corporation (Sportservice).

Plaintiffs were licensed city street vendors who sold various goods, wares and merchandise to the public prior to and during scheduled events in the area immediately adjacent to Busch Stadium. Defendant, Civic Center is a corporation which owns, manages and operates Busch Stadium in St. Louis. Defendant, Sportservice had a contract with Civic Center to sell goods, wares, and merchandise inside Busch Stadium. Both defendants are Missouri for profit corporations.

On March 23, 1984, an ordinance was enacted in the City of St. Louis which defendants claim regulated but did not ban street vending in the area immediately adjacent to Busch Stadium. The parties agree the ordinance permits vendors to sell in the area of the stadium if they enter into an agreement with Civic Center. As a result of the ordinance, plaintiffs are subject to prosecution in the municipal courts for sale of goods, wares and merchandise at Busch Stadium during scheduled events unless they contract with Civic Center.

Plaintiffs filed a petition alleging in three counts that defendants violated the antitrust laws of the State of Missouri, and tortiously interfered with plaintiffs' business relations. Plaintiffs' Count I is premised upon the conspiracy statute § 416.031.1 RSMo 1978. The petition alleges that defendants "met together on numerous occasions and entered into a contract, combination or conspiracy to restrain trade, or commerce and to eliminate competition in the sale of ... goods, wares, merchandise, and food to fix prices ... in the geographic market consisting of the outside area immediately adjacent to Busch Stadium." Plaintiffs further allege "the aforesaid combination and conspiracy consisted of an understanding and concert of action among the defendants and their co-conspirators, to maintain the market position of defendant, Sportservice, and to restrain trade, to destroy competition and to exclude competitors from the field of competition in the sale of goods, wares and merchandise, and food in and around the area outside and immediately adjacent to Busch Stadium." Plaintiffs allege that as a result of these conspiracies "defendants [have] and will have the effect of allowing for the sale of the goods, wares, merchandise and food inside and outside Busch Stadium at uniform, higher or stabilized prices all to the detriment of the public." Further, "defendant, Civic Center, also in a quid pro quo exchange agreed [with the City of St. Louis] to expend the approximate amount of One Million Dollars to landscape their own property in the outside area immediately adjacent to Busch Stadium in exchange for the City of St. Louis passing an ordinance to eliminate and ban all vendors except those controlled by Civic Center Corporation pursuant to the contract set forth in [petition] Exhibit A ¹ from vending in the outside area immediately adjacent to Busch Stadium."

Plaintiffs' Count II is premised upon the monopoly statute § 416.031.2 RSMo 1978. The petition alleges that as a result of defendants' contract, combination or conspiracy defendants "performed acts in furtherance of said monopolization or attempt to monopolize by controlling who was permitted to be a vendor, outside Busch Stadium, what was to be sold, who it was to be purchased from and what price was to be charged to the public as set forth in [petition] Exhibit A attached hereto, all in violation of Section 416.031(2) R.S.Mo." Plaintiffs charge defendants with specific intent to monopolize and that defendants' acts resulted in them "obtaining the exclusive and total right to sell." Plaintiffs further charge that "[t]he defendants as a direct result of their conduct ... now possess monopoly power in the relevant market (goods, wares, merchandise and food) in the geographic market comprised of Busch Stadium and the outside area, immediately adjacent to the Stadium."

Plaintiffs' Count III alleges tortious interference with business relations. The petition alleges "[t]hat at the time defendants engaged in the ... conspiracy, defendants were each well aware that plaintiffs had in years prior engaged in the sale of goods, wares and merchandise in the area outside of and immediately adjacent to Busch Stadium and defendants were well aware that plaintiffs had existing and future economic relationships with their customers. Further, "defendants intentionally without justification and knowing that their conduct was wrongful and illegal ... thereby causing a termination of the business expectancies and business relations of plaintiffs." Defendants accomplished this by conspiring to restrain trade and eliminate competition in the area immediately adjacent to Busch Stadium. It alleges "Plaintiffs' business ... has been damaged and destroyed and plaintiffs have suffered actual damages."

The ordinance which plaintiffs claim bans street vending and which defendants claim protect their actions states inter alia as follows:

Ordinance 59090

* * *

An ordinance to amend § 2 of Ordinance 38514, approved March 1, 1982, to revise the area where the selling or offering for sale or permitting the offering or selling of goods, merchandise, food, horticulture products or services is prohibited: and for an exception during the period of an agreement with Civic Center Corporation for the designated area surrounding Busch Stadium; and containing an emergency clause.

* * *

Section One. Section Two of Ordinance 38514, approved March 1, 1982, is hereby amended to read as follows:

Area Prohibited to Selling. No person shall sell or offer for sale or permit the offering or selling of goods, merchandise, food horticulture products or services upon any public streets ... except during the periods of time described below.

* * *

[Exceptions 1 and 2 are not relevant]

* * *

3 ... within which such person is a party to an agreement providing for such street vending with the Civic Center Corporation. (See Exhibit A--a letter from Civic Center Corporation outlining the general conditions which it anticipates such an agreement will include.)

* * *

Any person, firm or corporation violating the provisions of this Ordinance shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be fined a sum of not less than Twenty-Five Dollars ($25.00), nor more than Five Hundred Dollars ($500.00).

Defendants argue this ordinance regulates street vending which the City of St. Louis is empowered to undertake. The ordinance does not enact regulations. It only prohibits selling on penalty of a fine. It contains an exception for those persons who enter into an agreement with Civic Center. The ordinance does not give Civic Center the authority to license street vendors. It does not mention regulations. We are not aware of any legal authority that would permit a city to delegate licensing decisions to a private corporation, particularly one that would or may profit from its decisions. However, the validity of the ordinance is not directly at issue in this case.

In determining the sufficiency of a petition challenged by a motion to dismiss, we give the petition its broadest intendment, treat all facts alleged as true, and construe the allegations favorably to plaintiffs to determine whether they invoke principles of substantive law, and inform defendant of what plaintiff will attempt to establish at trial. Scheibel v. Hillis, 531 S.W.2d 285, 290 (Mo. banc 1976); Gaines v. Monsanto Co., 655 S.W.2d 568, 570 (Mo.App.1983). The petition need only allege ultimate facts, not evidentiary facts. Scheibel, 531 S.W.2d at 290.

The trial court's ruling on a motion to dismiss for failure to state a claim must be construed liberally and in favor of plaintiffs, giving them the benefit of all inferences fairly deducible from the facts stated therein. Jaime v. Neurological Hospital Ass'n of Kansas City, 488 S.W.2d 641, 643 (Mo.1973). The well pleaded facts alleged in the petition should be assumed to be true. Stiffelman v. Abrams, 655 S.W.2d 522, 525 (Mo. banc 1983). The dismissal will be upheld only if plaintiff could not recover on any theory pleaded. Laclede Gas Co. v. Hampton Speedway Co., 520 S.W.2d 625, 630 (Mo.App.1975).

Plaintiffs' petition is based upon a common law tort and Chapter 416 RSMo 1978, the Missouri Antitrust Act. The Act closely parallels provisions of the Sherman Act of federal antitrust law. See Title 15 United States Code. The Missouri Act expressly directs that its provisions "shall be construed in harmony with ruling judicial interpretations of comparable federal antitrust statutes." § 416.141 RSMo 1978. Fischer, Etc. v. Forrest T. Jones & Co., 586 S.W.2d 310, 313 (Mo. banc 1979).

The Eighth Circuit Court of Appeals has emphasized that "the courts are especially reluctant to dismiss a complaint for failure to state a claim in the rapidly developing antitrust area." Great A & P Tea Co. v. Amalgamated Meat Cutters, Etc., 410 F.2d 650, 652 (8th Cir.1969). Antitrust laws are to be construed liberally and exceptions from their application are to be construed strictly. Abbott...