Green v. Beagle-Chilcutt Painting Co., Inc., BEAGLE-CHILCUTT

• Decision Date: 13 January 1987
• Docket Number: BEAGLE-CHILCUTT,No. WD,WD
• Citation: 726 S.W.2d 344
• Court: Missouri Court of Appeals
• Parties: Terry & JoAnn GREEN, Respondents, v. ThePAINTING CO., INC., & Shirley Beagle, Appellants. 38066.

Page 344

726 S.W.2d 344

Terry & JoAnn GREEN, Respondents, v. The BEAGLE-CHILCUTT PAINTING CO., INC., & Shirley Beagle, Appellants.

No. WD 38066.

Missouri Court of Appeals Western District.

Jan. 13, 1987.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 3, 1987.

Application to Transfer Denied April 14, 1987.

Elwood L. Thomas and Sandra R. Stigall, of Shook, Hardy & Bacon, Kansas City, for appellants.

Timothy H. Bosler, Stephen W. Nichols & Thomas C. Capps, Liberty, for respondents.

Before SHANGLER, P.J., and MANFORD and BERREY, JJ.

MANFORD, Judge.

This is a civil action seeking damages for breach of contract and for tortious interference with a contract. The judgment is reversed and the cause remanded.

Appellants present seven points of error which, in summary, charge the trial court erred (1) in submitting respondents' claim for tortious interference with contract against individual appellant, Shirley Beagle, because appellant Beagle was the party acting on behalf of the corporate appellant under a contract of employment and, therefore, individual appellant Beagle could not also, based upon the same conduct, be guilty of tortious interference with contract; (2) in submitting the verdict-directing instruction on tortious interference with contract against individual appellant; (3) in submitting respondents' claim for tortious interference with contract against individual appellant, Shirley Beagle, because the evidence did not establish that individual appellant acted without justification; (4) in submitting the verdict-directing instruction against corporate appellant Beagle-Chilcutt on the issue of breach of contract; (5) in admitting certain expert testimony on the issue of lost profits; (6) in submitting the issue of punitive damages against individual appellant Beagle because there was no evidence to support the giving of a punitive damage instruction; and (7) in submitting the punitive damage instruction because said instruction was an erroneous deviation from MAI.

Before setting forth the factual account of this litigation, it is perhaps in order to identify the parties and further, to affix a designation to each for clarification within this opinion. Appellants are individual appellant, Shirley Beagle (hereinafter referred to as Beagle), an original defendant at trial, and corporate appellant Beagle-Chilcutt Painting Co., Inc., (hereinafter referred to as the Corporation) also an original defendant at trial. Respondents are Terry Green and JoAnn Green, individuals, but also husband and wife (hereinafter referred to by their respective names) who were original plaintiffs at trial.

The following is a summary of the pertinent facts. Any additional facts deemed applicable are set forth in further detail in the disposition of this appeal, infra.

The record discloses that the Corporation was originated and was operated as a painting company from 1949 through 1963. In 1967, Beagle and his former spouse, started a business named Beagle's Rental Center. By and through incorporation, Beagle's Rental Center was owned by the Corporation, and Beagle and his former spouse were the majority shareholders of the Corporation. In October, 1969, Terry Green and JoAnn Green opened the Eazy Rental Company located in Liberty, Missouri. Beagle and Terry Green met in October, 1969. While each of them operated rental companies, they were friendly toward one another. In 1976, Terry Green opened Lawn and Leisure of Clay County, Inc., which, in essence, was a take-over of a John Deere distributorship in Liberty, Missouri. Terry Green operated Eazy Rental Company and Lawn and Leisure at the same location. It should be noted that the Beagles' operation was some seven miles from the Green operation and located within Kansas City North, Missouri.

Due to the common nature of their businesses and through a trade association, contact between Terry Green and Beagle increased. In 1979, Beagle approached Terry Green about the latter's becoming manager of the Corporation. Terry Green declined. In February, 1982, the two commenced discussion of the possible merger of their two rental businesses. This discussion included the possibility of a buy-out over a period of time by Terry Green, and led to Green's working part time for the Corporation. In May, 1982, Terry Green became the general manager of Beagle's Rental Center. On August 10, 1983, Terry Green and Beagle executed documents which caused (1) employment of Terry Green with the Corporation; (2) the merger of Eazy and Lawn and Leisure into the Corporation; and (3) the establishment of stock options in Terry Green whereby over a period of time he could purchase additional stock in the Corporation. While these documents were executed on August 10, 1983, there is no dispute between the parties that they ratified the date of June 1, 1983 as the effective date thereof.

In general, the agreement reached between Terry Green and the Corporation was as follows: Terry Green transferred Eazy and Lawn and Leisure to the Corporation. In return, 159.61 shares of common stock of the Corporation were transferred to Eazy and 45.04 shares of common stock of the Corporation were transferred to Lawn and Leisure. There was a stock purchase agreement executed by Shirley Beagle, Lindley Beagle (his former spouse), and Terry and JoAnn Green. This agreement reflected ownership of 205 shares of common stock of the Corporation in Terry and JoAnn Green. Pursuant to the stock purchase agreement, Terry and JoAnn Green held the option to purchase (annually for a period of five years) 69 additional shares (each year) of the common stock of the Corporation. The effective date of the option was June 1, 1985. The stock purchase agreement also provided that if Terry Green was involuntarily terminated from his employment with the Corporation, it was required that all the shares of common stock then owned by Terry and JoAnn Green be sold back to the Corporation and all future option to purchase was ended.

In addition to the stock purchase agreement, there was executed an employment contract which carried the same effective date of June 1, 1983. The term of employment was five years. This contract bore the terms of Terry Green's salary ($19,500.00 per annum (gross), payable at $375.00 per week). It also noted Terry Green as the employee and Beagle-Chilcutt Corporation as the employer. Green's employment was as vice-president/secretary of the Corporation, provided he was elected to those positions by a favorable vote of the Corporation's board of directors. His duties were prescribed as those of general manager pursuant to a corporate organizational chart. It is not desirable, for purposes herein, to set forth the employment contract verbatim because of the length thereof, plus the inclusion of many terms not necessarily important to the issues on this appeal. As to any specific term directly applicable to any issue herein, that term or those terms will be set forth verbatim infra.

Terry Green's testimony was that on December 15, 1983, Beagle announced to him that he (Beagle) and his wife were getting a divorce. Terry Green further testified that Beagle first criticized his (Green's) job performance by way of a "written review" on December 30, 1983. Beagle testified that the two had a meeting in November of 1983 concerning Green's "lack of leadership" and "assumption of responsibility." The following language was contained in the "written review":

1. Several weeks back as you recall I asked you when you were going to assume your physical role on these premises and make this office your operational headquarters. I was disturbed that I had to ask you to do that.

The controversy regarding the above-quoted matter centered upon Beagle's contention that Terry Green was spending too much time at the Eazy-Lawn Leisure location and not enough at Beagle's Rental. Terry Green testified that Beagle had never mentioned this matter to him, and that further he was, in fact, spending a majority of his time at the Beagle Rental Center. Terry Green testified that he asked Beagle to explain his complaints but that Beagle refused. The same communication of December 30, 1983 included the additional language:

2. On at least five separate occasions I have asked you to define your duties. More specifically I have been concerned with the actual work you intend to perform. You have yet to give me any sort of answer.

3. Do you think you could step into Mikes job and be effective.

a. Do you think you know the rudiments of how this place runs on a day to day basis and if not when do you think you will. Again to be specific when do you intend to learn to do the job yourself.

b. Are you aware that you are evading certain basic responsibilities and asking or letting Mike do your job for you.

4. Do you spend your time effectively?

a. Why do you go to Liberty each day at noon and spend a minimum of 2 1/2 hours or more.

b. There is no justification for you to relieve the employees at noon hour or for you to go home for lunch.

c. Does it have any bearing on our operations now or in the future when the employees wonder how you spend your time or wonder what you are supposed to do here.

5. Do you feel that employees' opinions of what you do or contribute is important?

6. Do you realize that most employees in this store would rather not deal with you.

7. Do you think you are capable of being a 'Chief' but at the same time function as an 'Indian'?

Shirley

Terry Green further testified that he eventually prepared a written job description and submitted the same to Beagle. In addition, Terry Green stated that he told Beagle that he (Green) had no doubt in his own mind that he could handle, and in fact had handled, the day-to-day operation of the business. Green also stated he advised Beagle that he was at the "Liberty store" to relieve the only "counter person" for lunch and to go home himself for lunch. He stated that the...