Fields v. R.S.C.D.B., Inc.

• Decision Date: 30 November 1993
• Docket Number: No. 63740,63740
• Citation: Fields v. R.S.C.D.B., Inc., 865 S.W.2d 877 (Mo. App. 1993)
• Parties: James J. FIELDS, Plaintiff-Appellant, v. R.S.C.D.B., INC., Symcor Companies, Inc., Kenneth D. Symsack and Brian Symsack, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 877

865 S.W.2d 877

James J. FIELDS, Plaintiff-Appellant, v. R.S.C.D.B., INC., Symcor Companies, Inc., Kenneth D. Symsack and Brian Symsack, Defendants-Respondents.

No. 63740.

Missouri Court of Appeals,

Eastern District,

Division Four.

Nov. 30, 1993.

Robert J. Danis, Robert L. Nussbaumer & Associates, St. Louis, for plaintiff-appellant.

Douglas P. Dowd, Dowd & Dowd, P.C., St. Louis, for defendants-respondents.

SMITH, Judge.

Plaintiff, James J. Fields, sued R.S.C.D.B., Inc., Symcor Companies, Inc., Kenneth D. Symsack and Brian Symsack for breach of an alleged five year oral employment agreement and tortious interference with the same agreement. Defendants asserted the statute of frauds, § 432.010 RSMo 1986, as a defense. Plaintiff concedes the agreement could not be performed within one year's time and that it was not alleged to have been written. The trial court dismissed the case for failure to state a cause of action.

Plaintiff appeals arguing that the contract should be enforced under the doctrine of promissory estoppel. Additionally, plaintiff contends that an allegation in his petition claiming defendants may have created a document memorializing the agreement is sufficient to overcome the trial court's dismissal.

In reviewing the sufficiency of a petition to which a motion to dismiss is directed, the sole issue to be decided is whether, after allowing the pleading its broadest intendment, treating all facts alleged as true and construing all allegations favorably to plaintiff, the averments invoke principles of substantive law entitling plaintiff to relief. Lowrey v. Horvath, 689 S.W.2d 625 (Mo. banc 1985) .

Plaintiff's reliance on promissory estoppel fails to remove the oral employment agreement from the statute of frauds. A well established line of cases has specifically refused to recognize estoppel in the context of oral employment agreements. Morsinkhoff v. De Luxe Laundry & Dry Cleaning Co., 344 S.W.2d 639 (Mo.App.1961); Mayer v. King Cola Mid-America, Inc., 660 S.W.2d 746 (Mo.App.1983); Sales Service, Inc. v. Daewoo Int'l (America) Corp., 770 S.W.2d 453 (Mo.App.1989); McCoy v. Spelman Memorial Hosp., 845 S.W.2d 727 (Mo.App.1993). Plaintiff fails to present any argument for deviating from the course laid down by this line of cases, and does not attempt to distinguish them.

Plaintiff further attempts to avoid dismissal by noting his petition alleges defendants "caused and directed to have prepared certain documents memorializing" the employment agreement. This allegation was based on plaintiff's "best information and belief". Plaintiff contends this allegation is sufficient to preclude a dismissal and should allow his cause to move forward to discovery.

In order to satisfy the statute of frauds a writing memorializing an agreement must be complete in and of itself, leaving no essential part to be proved by parole. Shafer v. Western Holding Corp., 673 S.W.2d 117 (Mo.App.1984) . Although a petition is only required to plead ultimate facts, "[m]ere conclusions of the pleader that are not supported by factual allegations are disregarded in determining whether a petition states a cause of action on which relief can be granted." Johnston v. Norrell Health Care, Inc., 835 S.W.2d 565 (Mo.App.1992) [1, 2], quoting, Lick Creek Sewer Sys. v. Bank of Bourbon, 747 S.W.2d 317 (Mo.App.1988) .

The allegations in plaintiff's petition are insufficient to preclude dismissal. Plaintiff's petition fails to allege a writing containing all the elements of the employment agreement signed by the contracting party. Plaintiff's claim that the purported writing "memorializes" the agreement is a pure conclusion without allegations of more specific facts. If this allegation were sufficient to preclude dismissal any plaintiff in this situation could avoid dismissal by the mere expedient of including this conclusory and speculative allegation within the petition.

Plaintiff's claim of tortious interference with a contractual relationship or business expectancy is...