Guidry v. Charter Communications, Inc.

Decision Date07 October 2008
Docket NumberNo. ED 88538.,ED 88538.
Citation269 S.W.3d 520
PartiesJohn GUIDRY, Simul-Vision Cable Systems, Ltd., and Guidry Cable Vision Management Company, Respondents/Cross-Appellants, v. CHARTER COMMUNICATIONS, INC., Charter Communications Ent. 1, LLC, Baumann Property Co., U.B.S. Realty Investors, LLC, Defendants, and Seven Trails West, LLC, Appellant/Cross-Respondent.
CourtMissouri Court of Appeals

Michael Clithero, St. Louis, MO, for appellant.

Joann Sandifer, Clayton, MO, for defendants.

Anthony Simon, St. Louis, MO, for respondents.



Seven Trails West LLC ("Seven Trails") appeals from a judgment of the Circuit Court of the City of St. Louis entered on a jury verdict awarding John Guidry, Simul-Vision Cable Systems, Ltd. and Guidry Cable Vision Management Co. (collectively, "Simul-Vision") $706,000 in damages. Simul-Vision cross-appeals a judgment from the same court granting summary judgment in favor of Charter Communications Enterprises LLC ("Charter").1 We affirm in part and reverse and remand in part.2

Factual and Procedural Background

On January 12, 1984, Simul-Vision and Seven Trails West, LP ("West LP") entered into a written contract ("1984 Contract") for cable service to the tenants of Seven Trails West Apartment Complex ("the apartment complex"). The initial term of the contract was 15 years, expiring on January 11, 1999. This contract contained an automatic renewal provision which stated:

this agreement and all of its terms shall automatically renew for successive periods of five (5) years each unless either party delivers written notice to the other party at least 90 days prior to the end of the initial or any one of the successive five (5) year terms of that party's intention not to renew the Agreement.

Under the terms of this contract, West LP was prohibited from allowing third parties to install or operate a cable or satellite system at the apartment complex (the Exclusivity Provision). The contract also provided that during the first five years Simul-Vision would pay West LP ten percent of all subscription fees generated from the apartment complex. This payment increased to 15 percent during the second five years, and 20 percent for the last five years.

On September 13, 1984, West LP sold the apartment complex to Seven Trails West Associates (West Associates). West Associates owned the property until 1999, and during this time, Camden Development, Inc, managed the apartment complex.

On May 8, 1998, eight months before the contract term expired, Camden Development sent a letter (Camden letter) to Simul-Vision, which stated:

The Cable Television Agreement for the Seven Trails West Apartments, dated January 12, 1984 ... will expire on January 12, 1999. Pursuant to Section X, Paragraph 10.01, Camden Development, Inc. is providing its "at least ninety (90) days notice" of intent to not renew the Agreement for five (5) years. Camden further requests that the Agreement be placed on a month to month basis effective immediately upon termination.

Simul-Vision did not reply to the Camden letter.

On August 11, 1998, five months before the term expired, West Associates sent a certified letter to Simul-Vision which stated West Associates "hereby elects to not renew said Agreement; therefore, said Agreement shall terminate on January 11, 1999." Simul-Vision did not respond. After the 15 year term expired, Simul-Vision continued to provide cable service to the apartment complex and pay West Associates a percentage of the subscription fees.

In August 1999, West Associates sold the apartment complex to Seven Trails.3 After Seven Trails purchased the apartment complex, Simul-Vision continued to provide cable service. Simul-Vision paid Seven Trails a smaller percentage of the subscription fees than was required under the 1984 Contract. Beginning in March 2001, Simul-Vision stopped making payments to Seven Trails.

In October 1999, Seven Trails approached Charter and other cable and satellite television service providers about providing cable services to the apartment complex. Seven Trails invited Charter to bid on the right to provide cable service to the apartment complex. Charter inquired about the contractual status of the current provider and was informed that Seven Trails had a month-to-month arrangement with Simul-Vision, which was terminable with a thirty-day notice. Charter bid on the right to provide cable services, negotiated and eventually signed a "right of entry" contract with Seven Trails in March of 2001. Charter began installing its cable equipment in July 2001.

During August 2001, Seven Trails and Simul-Vision exchanged several letters, in which Simul-Vision accused Seven Trails of violating the Exclusivity Provision in the 1984 Contract by allowing Charter to begin the installation of its cable system. Seven Trails, on the other hand, maintained that the Exclusivity Provision did not apply because the cable service was on a month-to-month arrangement

On August 27, 2001, Seven Trails terminated the month-to-month arrangement effective on September 30, 2001. Charter began providing cable services to the apartment complex in October 2001.4

Simul-Vision filed a five-count petition in the circuit court of the City of St. Louis.5 However, we need only discuss the first two counts as they are the only two relevant on appeal. Count I alleged a breach of contract claim against Seven Trails. Count II alleged a tortious interference claim against Charter and was disposed of through summary judgment.

Seven Trails also filed a two count counterclaim. In its first count, a declaratory judgment action, Seven Trails asked the court to find that 1984 Contract was terminated and was not renewed, and that Simul-Vision continued to provide cable service on a month-to-month agreement. Count II, pled in the alternative, alleged Simul-Vision breached the contract between the parties by failing to pay the entire 20 percent of the subscription fees.

The case was tried before a jury. Seven Trails moved for a directed verdict at the close of Simul-Vision's case and again at the close of all evidence. The trial court denied both motions. The jury found in favor of Simul-Vision on Count I, awarding $706,000.00 in damages. It found in favor of Seven Trails on its counter-claim, awarding it $46,000.00 in damages.6

Seven Trails appeals the judgment of the trial court on Count I and Simul-Vision cross-appeals the grant of summary judgment on Count II.

Breach of Contract

Seven Trails raises five points on appeal. The first three points contend that the trial court erred in submitting the case to the jury for the following reasons: (1) Simul-Vision failed to establish the existence of the Exclusivity Provision because the statute of frauds precludes enforcement and because the evidence at trial negated the existence of an agreement on that provision. (2) Simul-Vision is not entitled to enforce the contract because it was the first party to breach and the trial court erred in refusing to instruct the jury on the first to breach rule. (3) Simul-Vision suffered no identifiable damages. In its fourth point, Seven Trails argues that trial court improperly instructed the jury by failing to give a limiting instruction regarding entitlement to benefits of a month-to-month contract and that jury verdict was plainly excessive and should be remitted. The fifth point on appeal is that the trial court erred in admitting evidence related to damages.

Statute of Frauds

In its first point on appeal, Seven Trails argues that the statute of frauds precludes enforcement of the Exclusivity Provision. Seven Trails claims that the absence of a writing is fatal to Simul-Vision's breach of contract claim because the contract Simul-Vision seeks to enforce was "[for an interest in land] for a longer time than one year." We cannot consider this issue however, because Supreme Court Rule 55.08 precludes Seven Trails from asserting statute of frauds as an affirmative defense where it failed to take the opportunity to do so in its answer.

Rule 55.08 states in relevant part: "[i]n pleading to a preceding pleading, a party shall set forth all applicable affirmative defenses and avoidances, including ... statute of frauds ... and any other matter constituting an avoidance or affirmative defense." Rule 55.08. When a defendant fails to plead such a defense, it is considered generally waived. Holdener v. Fieser, 971 S.W.2d 946, 950 (Mo.App. E.D. 1998). This rule applies unless: "(1) the plaintiff either impliedly or expressly consented to trying the case on that defense, or (2) the trial court permitted the pleadings to be amended to include the defense." Rule 55.33(b); Lucas v. Enkvetchakul, 812 S.W.2d 256, 263 (Mo.App. S.D. 1991).

Seven Trails did not plead the statute of frauds as an affirmative defense in its answer and has not given us any indication that it brought the issue to the trial court's attention at any point during the proceeding before the trial court. See Barr v. Snyder, 294 S.W.2d 4, 10 (Mo.1956). On the face of the record before us, Seven Trails has waived any statute of frauds defense it may have had. See Id.

Substantial Evidence of Agreement

We now turn to Seven Trails second argument under its first point: whether the trial court erred when it denied Seven Trails' motion for directed verdict because Simul-Vision failed to present sufficient evidence that Seven Trails agreed to be bound by the Exclusivity Provision. When reviewing a motion for a directed verdict and a judgment notwithstanding the verdict, the court must determine whether the plaintiff made a submissible case. Hodges v. City of St. Louis, 217 S.W.3d 278, 279-80 (Mo. banc 2007). A case can be submitted only if "each and every fact essential to...

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