J.S. DeWeese Co. v. Hughes-Treitler Mfg. Corp.

• Decision Date: 12 July 1994
• Docket Number: HUGHES-TREITLER,No. 64425,64425
• Citation: 881 S.W.2d 638
• Parties: J.S. DeWEESE COMPANY, a Missouri Corporation, Plaintiff-Appellant, v.MFG. CORP., a New York Corporation, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 638

881 S.W.2d 638

J.S. DeWEESE COMPANY, a Missouri Corporation, Plaintiff-Appellant, v. HUGHES-TREITLER MFG. CORP., a New York Corporation,

Defendant-Respondent.

No. 64425.

Missouri Court of Appeals,

Eastern District,

Division Three.

July 12, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 22, 1994.

Michael H. James, Doster, Robinson and James, Chesterfield, for plaintiff-appellant.

Erwin Oliver Switzer, Bryan Cave, St. Louis, for defendant-respondent.

SIMON, Presiding Judge.

Appellant, J.S. DeWeese Company, appeals the judgment of the Circuit Court of St. Louis County: (1) granting respondent's, Hughes-Treitler Manufacturing Corporation, motion to dismiss a claim for violation of § 407.913 R.S.Mo.1986 (all further references shall be to R.S.Mo.1986 unless otherwise noted); and (2) granting a motion for summary judgment for breach of contract and prima facie tort.

Appellant contends that the trial court erred in: (1) dismissing Count III of its original petition by holding that the remedy provided by § 407.913 is not available to a corporation; and (2) granting respondent's motion for summary judgment as to the breach of contract (Count I) and prima facie tort (Count II) claims because based upon the record, there were genuine issues of material fact and defendant was not entitled to judgment as a matter of law.

When reviewing a grant of a motion to dismiss a petition, all facts alleged in the petition are deemed true and the plaintiff is given the benefit of every reasonable intendment. Magee v. Blue Ridge Professional Building Co., 821 S.W.2d 839, 842 (Mo. banc 1991). Further, when reviewing a grant of a motion for summary judgment, we view the facts in the light most favorable to the non-moving party. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376[1-3] (Mo. banc 1993).

Appellant and respondent entered into an agreement whereas appellant was appointed as the exclusive sales agent of respondent in Kansas, Missouri, Iowa, Indiana, and Illinois. Pursuant to the contract, appellant agreed to use its "best efforts" to promote the sale of respondent's products in the assigned areas. As compensation for its services as a sales agent, appellant was to receive a certain commission based upon the net invoice value of all shipments of respondent's products to any area within appellant's territory. The commissions were to be paid on the fifteenth day of each month for all "shipments paid" during the preceding calendar month. The term of the agreement was for a period of one year, automatically renewed unless either party terminated the agreement. The contract provided for termination by either party, without cause, upon thirty days notice.

Appellant promoted the sale of respondent's products to an Indiana company, Allison Gas Turbines (Allison). During the term of the contract, Allison and respondent entered into a Preferred Supplier Agreement. This agreement did not include an agreement on price, nor did it obligate Allison to buy product from respondent.

Respondent attempted to terminate appellant from the Allison account. Appellant refused and stated its intention to collect commissions on the Allison account. Subsequently, the Manager of Marketing for respondent told appellant's president, J.S. DeWeese, that Mark Finkelstein, respondent's president, "got pissed" about appellant's position regarding the Allison commissions. Thereafter, respondent terminated the contract with appellant in accordance with the contract.

Appellant filed a three count petition against respondent seeking damages for breach of contract (Count I), prima facie tort (Count II), and violation of § 407.913 (Count III). Following the dismissal of Count III by the trial court for jurisdictional purposes, appellant filed a first amended petition on the other two Counts.

Respondent filed a motion for summary judgment as to both Counts of the first amended petition, which was granted by the trial court.

In its first point, appellant contends that the trial court erred in dismissing Count III by holding that the remedy provided by § 407.913 is not available to corporations, pursuant to § 407.911. Respondent contends that this court lacks jurisdiction over the appeal from the dismissal because the notice of appeal did not refer to the order dismissing Count III. The notice refers only to the date of entry of the summary judgment on the "Date of Judgment" line. On the line labelled "Order of Judgment Appealed from," the appellant filled in "see attached," and only the Summary Judgment of July 22, 1993 referring to Counts I and II was attached.

Appellant argues that its failure to specify should not result in a dismissal because the respondent has not been prejudiced and was aware that appellant intended to appeal from the directed verdict because the issues were discernable from the briefs and the record.

A proper notice of appeal is a jurisdictional prerequisite and "shall specify ... the judgment or order appealed from." Rule 81.08(a). It is well settled that the formal averments contained in a notice of appeal are to be liberally construed in order to permit appellate review so long as the opposing party has not been misled to his irreparable harm. Allison v. Sverdrup and Parcel and Assoc., 738 S.W.2d 440, 443 (Mo.App.1987). Rules should be liberally construed in favor of allowing appeals to proceed. Williams v. MFA Mutual Insurance Co., 660 S.W.2d 437, 439 (Mo.App.1983).

We discern no evidence that respondent has been prejudiced by appellant's failure to specify on the notice of appeal the order dismissing Count III. Appellant's brief and the record on appeal clearly indicate that the order dismissing Count III is being appealed.

Turning to appellant's first point, we note that where a petition is attacked by a motion to dismiss for failure to state a claim, the facts alleged are taken to be true and the pleader is entitled to all favorable inferences fairly deducible therefrom; if the facts pleaded and reasonable inferences to be drawn therefrom, looked at most favorably from the plaintiff's viewpoint, show any ground for relief, then the petition should not be dismissed. Johnson v. Great Heritage Life Insurance Co., 490 S.W.2d 686, 690 (Mo.App.1973).

Appellant alleged in Count III of its original petition that it was entitled to commissions from respondent pursuant to §§ 407.911 and 407.913 of the sales commission statutes. Section 407.913 provides in pertinent part:

Any principal who fails to timely pay the sales representative commissions earned by such sales representative shall be liable to the sales representative in a civil action ...

The definitional section, § 407.911.1 provides in pertinent part:

(2) 'Principal', a person, firm, corporation, partnership or other business entity, whether or not it has a permanent or fixed place of business in this state ...

(3) 'Sales Representative', a person who contracts with a principal to solicit wholesale orders and who is compensated, in whole or in part, by commission ...

The text of the sales commission statutes do not specifically provide for the definition of "person." Therefore, appellant contends, relying on § 1.020(11), a general definition statute, that the word "person" may extend to a corporation unless "plainly repugnant to the intent of the legislature or the context thereof". The use is permissive and not mandatory. Mark Twain Cape Girardeau Bank v. State Banking Board, 528 S.W.2d 443, 446 (Mo.App.1975). The definitions provided in § 407.911 make it obvious that the sales commission sections are available only to sales representatives who are natural persons. Section 407.911 defines a "principal" as a "person, firm, corporation, partnership, or other business entity ... which contracts with a sales representative paid in whole, or in part, by commission." § 407.911.1(2). It next defines a "sales representative" as a "person". § 407.911.1(3).

As respondent suggests, the "stark" contrast in the consecutive subsections of the statute reflect a clear legislative intent that the statute is available only to sales representatives who are natural persons and not corporations. Further, when determining meaning of words intended by the legislature, "the general rules of statutory construction require that meaning be given to each word used in the legislative enactment, insofar as possible and one word of the statute should not be considered a needless repetition of another." Lora v. Director of Revenue, 618 S.W.2d 630, 633 (Mo.1981); quoting State ex rel. Thompson-Stearns-Roger v. Schaffner, 489 S.W.2d 207, 215 (Mo.1973). The legislature is presumed not to enact meaningless provisions. Wollard v. City of Kansas, 831 S.W.2d 200, 203[2-5]. If it is as appellant argues, that "person" as used in the definition of "sales representative", includes "firms, corporations, partnerships, or other business entities," then the inclusion of "firms, corporations, partnerships, or other business entities" in addition to "person", within the definition of "principal" would be repetitious and of no significance.

Additionally, wording in other parts of the sales commission sections tend to show that the legislature was concerned with natural persons who were employees or the functional equivalent. In § 407.912, the title refers to termination of employment, a word generally applicable to natural persons, not corporations. This further evidences the legislative intent to include only natural persons in the sales representative definition.

Thus "person" under the "sales representative" definition of § 407.911.1(3), applies only to natural persons. Appellant's first point is without merit.

In its second point on appeal, appellant contends that the trial court erred in granting summary judgment in favor of the respondent as to the breach of contract and prima facie tort claims because there were genuine issues of material fact and responde...