Defino v. Civic Center Corp.

• Decision Date: 17 October 1989
• Docket Number: No. 55482,55482
• Parties: 1989-2 Trade Cases P 68,837 Ronald DEFINO and John Eyre, Plaintiffs/Appellants, v. CIVIC CENTER CORPORATION and Sportservice Corporation, Defendants/Respondents.
• Court: Missouri Court of Appeals

Page 665

780 S.W.2d 665

1989-2 Trade Cases P 68,837

Ronald DEFINO and John Eyre, Plaintiffs/Appellants, v. CIVIC CENTER CORPORATION and Sportservice Corporation Defendants/Respondents.

No. 55482.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 17, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Nov. 15, 1989.

Theodore F. Schwartz, Barry S. Ginsburg, Clayton, for plaintiffs/appellants.

Frank N. Gundlach, Alan C. Kohn, St. Louis, for respondent.

SATZ, Judge.

Plaintiffs appeal the trial court's grant of defendants' motions for summary judgments. We affirm.

Plaintiffs are self-employed street vendors. Defendants are Civic Center Corporation (Civic Center) and Sportservice Corporation (Sportservice). Civic Center owns and operates Busch Stadium in downtown St. Louis. Sportservice sells food and merchandise inside Busch Stadium. In 1984, an ordinance, Ord. No. 59090, was enacted in the City of St. Louis prohibiting the vending of food, merchandise or services on the streets or sidewalks immediately adjacent to Busch Stadium, except by those doing so under agreement with Civic Center.

Plaintiffs filed suit against defendants, in a three count petition, alleging that defendants violated the antitrust laws of Missouri and tortiously interfered with plaintiffs' business relations. In Count I, plaintiffs allege defendants violated § 416.031.1 RSMo 1986. More specifically, plaintiffs allege: "defendants ... entered into a contract, combination or conspiracy to restrain trade ... and to eliminate competition in the sale of ... [food and merchandise] ... in the geographic market consisting of the outside area immediately adjacent to Busch Stadium"; defendants entered into a "sham" contract with others "to conceal and attempt to legitimize their illegal actions"; "[t]he contract allows the defendants to totally control the sale of goods ... food, ... thereby eliminating ... free and open competition ..."; the defendants, acting pursuant to the contract, granted "certain individuals the exclusive right to sell in the outside area immediately adjacent to Busch Stadium at fixed or stabilized or uniform prices;" Civic Center agreed to make improvements "in the outside area immediately adjacent to Busch Stadium in exchange for the [City] passing an ordinance to eliminate ... all vendors except those controlled by Civic Center"; and the "intended effects" of these acts "have been to maintain .. Sportservice['s] market position and prevent and eliminate competition and fix prices ... in the outside area immediately adjacent to Busch Stadium, ... [and] to ... exclude ... plaintiffs, from [this] field of competition."

In Count II, plaintiffs allege that defendants violated § 416.031.2 RSMo 1986. More specifically, plaintiffs allege: defendants "entered into a ... conspiracy to monopolize or attempt to monopolize trade and commerce and to eliminate competition in the sale of goods, wares, merchandise and food in the outside area immediately adjacent to Busch Stadium"; and this monopoly power was acquired willfully, intentionally and illegally.

In Count III, plaintiffs allege: defendants "conspired and agreed to interfere with the business relations and expectancies of plaintiffs," thereby causing a termination of these business expectancies and relations.

Defendants filed separate motions to dismiss plaintiffs' petition for failure to state a claim upon which relief could be granted. These motions were granted. Plaintiffs appealed. This Court reversed the grant of the motions and remanded the case to the trial court. DeFino v. Civic Center Corp., 718 S.W.2d 505 (Mo.App.1986).

Then, after extensive discovery by the parties, both defendants moved for summary judgment, contending their conduct, alleged by plaintiffs to be illegal, was protected by the Noerr- Pennington doctrine. These motions were granted. This appeal of plaintiffs followed.

The Noerr- Pennington doctrine originated in Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). As part of that doctrine, concerted attempts to induce the passage or enforcement of laws are immunized from anti-trust liability, regardless of the anticompetitive purpose or effect of those laws. Noerr, 365 U.S. at 138-140, 81 S.Ct. at 530-531. Moreover, these concerted attempts are immunized whether standing alone or as part of an overall conspiracy which itself may be violative of the Sherman Act. Pennington, 381 U.S. at 670, 85 S.Ct. at 1593; Handler, Twenty-Five Years of Antitrust, 73 Col.L.R. 415, 430-31 (1973). This immunity derives from the premise that no Sherman Act violation occurs when the restraint of trade or monopolization is the result of valid legislative action. Noerr, 365 U.S. at 136, 81 S.Ct. at 529. Therefore, genuine efforts to induce valid legislative action are likewise immune from antitrust liability. Id. To hold otherwise would impute to Congress the intent to permit the Sherman Act to be used to limit freedom of expression and the right to petition. Id. at 138, 81 S.Ct. at 530.

The Court recognized the possibility that the political process may be abused in the guise of the doctrine and, thus, created what is now called the "sham exception" to that doctrine:

There may be situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.

Id. at 144, 81 S.Ct. at 533.

"[T]he sham exception applies only where the defendant is not really seeking to elicit government action at all." Handler, supra at 436. Conversely, "a genuine effort to influence public officials can never violate the antitrust laws, regardless of what defendant's direct or ulterior intentions may be". Id.

The rationale underpinning the Noerr- Pennington doctrine also has been applied to create immunity from common law liability, in particular, immunity from the claim of tortious interference with a business expectancy or relationship. Sierra Club v. Butz, 349 F.Supp. 934 (N.D.Cal.1972); see also, Missouri v. NOW, 620 F.2d 1301 (8th Cir.1980) and cases cited therein.

In invoking the Noerr- Pennington doctrine by summary judgment, defendants necessarily raise the issue of the burden of proof now required by Rule 74.04 to support their motions. Prior to the date defendants' motions were filed, Rule 74.04(h) permitted summary judgment to be entered only when "the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law." Subsection (h) has been deleted. Thus, it is no longer necessary to support a motion for summary judgment by "unassailable proof." See, e.g. Hayes v. Hatfield, 758 S.W.2d 470, 472 (Mo.App.1988). None of the parties has cited Missouri authority, nor has our research disclosed any, which defines either the meaning of the deletion of subsection (h) or the present burden of proof under Rule 74.04.

Rule 74.04, however, is now almost identical to Rule 56 of the Federal Rules of Civil Procedure. Since we may use federal precedent when our Rule tracks a federal rule, In re Estate of Caldwell, 766 S.W.2d 464, 466 (Mo.App.1989), defendants urge us to use the burden of proof for summary judgments established by the United States Supreme Court in a 1986 trilogy of cases. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Although defendants characterize these cases as "clarifying" the burden of proof needed for summary judgment, they acknowledge these cases "lessen" the burden of proof needed for summary judgment, signaling a change in policy by the Supreme Court toward a greater use of summary judgment to avoid "unnecessary" trials.

In our view, this trilogy of cases make significant changes in the moving party's burden of proof and the manner in which that burden is satisfied. Thus, under Celotex, the moving party has "the initial responsibility of informing the district court of the basis of its motion, and identifying those portions" of the record it believes shows a lack of genuine issue of fact. Celotex, supra 477 U.S. at 323, 106 S.Ct. at 2552. This initial burden may be "discharged merely by 'showing'--that is, pointing out to the district court--that there is an absence of evidence supporting the nonmoving party's case." Id. at 325, 106 S.Ct. at 2553. This shifts the burden of going forward to the nonmoving party, and, where the nonmoving party bears the burden of proof at trial on certain dispositive issues, that party must designate specific facts showing there is a genuine issue of fact on at least one of those issues. Id. at 324, 106 S.Ct. at 2553. Rule 56 "mandates the entry of summary judgment" if, "after adequate time for discovery", the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552. Moreover, the pretrial record is not viewed to determine whether enough evidence exists to raise an inference to be resolved a trial, but rather whether it would allow the nonmoving party, if plaintiff, to survive a motion for directed verdict were one based on the record. Anderson, supra 477 U.S. at 249, 106 S.Ct. at 2510.

We see no need to adopt completely either the holdings or teachings of this trilogy in order to apply our present Rule 74.04 to the present facts. ¹ None of the parties has listed or described explicitly the exact evidence that...