Jennings v. Ssm Health Care St. Louis

• Decision Date: 20 December 2011
• Docket Number: No. ED 96364.,ED 96364.
• Citation: 355 S.W.3d 526
• Parties: Anthony W. JENNINGS, Appellant, v. SSM HEALTH CARE ST. LOUIS, Respondent.
• Court: Missouri Court of Appeals

355 S.W.3d 526

Anthony W. JENNINGS, Appellant,

v.SSM HEALTH CARE ST. LOUIS, Respondent.

No. ED 96364.

Missouri Court of Appeals, Eastern District, Division One.

Dec. 20, 2011.

Kelley F. Farrell, Zofia A. Garlicka, Andrew D. Lamb, St. Louis, MO, for Appellant.

Kathi L. Chestnut, St. Louis, MO, for Respondent.

ROY L. RICHTER, Judge.

Dr. Anthony Jennings (“Dr. Jennings”) brought suit against SSM Health Care St. Louis (“SSM”) in the Circuit Court of St. Charles County. He appeals from the trial court's granting of SSM's motion to dismiss for failure to state a claim upon which relief can be granted. Dr. Jennings argues that his claims were sufficiently pled to survive SSM's motion to dismiss. We affirm in part, and reverse and remand in part.

I. BACKGROUND

Dr. Anthony Jennings was hired in 2002 to serve as an emergency room physician at St. Joseph's Hospital West (“St. Joseph's”), an affiliate of SSM. In 2006, Dr. Jennings was promoted to medical director of Emergency Services at St. Joseph's, where he remained in that capacity until 2008. In the summer of 2008, SSM informed all of the Emergency Services physicians employed at St. Joseph's, including Dr. Jennings, that their positions were being outsourced to a third-party vendor. Dr. Jennings alleges that during that meeting, SSM promised severance to all of those physicians in attendance in exchange for their continued employment at St. Joseph's during the transition period. Dr. Jennings remained employed with SSM throughout the transition period until December 2008, at which point he was terminated. He received no severance payment.

On July 27, 2010, Dr. Jennings filed suit against SSM. In his seven-count petition, each count pled in the alternative, Dr. Jennings alleged: (1) a breach of his employment agreement; (2) a breach of SSM's written severance policy; (3) a breach of a unilateral verbal severance contract; (4) promissory estoppel; (5) unjust enrichment; (6) fraudulent misrepresentation; and (7) negligent misrepresentation.

Following the filing of Dr. Jennings's petition, SSM filed a motion to dismiss all counts for failure to state a claim upon which relief could be granted. After a hearing, the trial court sustained SSM's motion to dismiss, without stating any specific ground upon which the dismissal was based, and dismissed the petition without designating the dismissal as with or without prejudice. This appeal follows.

II. DISCUSSION

The law generally favors trial on the merits. Summer Chase Second Addition Subdivision Homeowners Ass'n v. Taylor–Morley, Inc., 146 S.W.3d 411, 414–15 (Mo.App. E.D.2004). Appellate review of a trial court's grant of a motion to dismiss is de novo. Thomas v. A.G. Elec., Inc., 304 S.W.3d 179, 182 (Mo.App. E.D.2009). “A motion to dismiss for failure to state a cause of action is solely a test of the adequacy of the plaintiff's petition.” Nazeri v. Mo. Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). When the trial court fails to state a basis for its dismissal, we presume it was based on at least one of the grounds stated in the motion to dismiss. Summer Chase, 146 S.W.3d at 415. In our review, we assume that all of the plaintiff's averments are true, and liberally grant the plaintiff all reasonable inferences. Nazeri, 860 S.W.2d at 306. We do not attempt to weigh the credibility or persuasiveness of any of the alleged facts. Id. Instead, we review the petition, allowing the broadest intendment, “in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Id.; Thomas, 304 S.W.3d at 183.

Dr. Jennings raises five points on appeal. Before reaching those points, however, we must first consider, sua sponte, whether the dismissal order is a final judgment from which Dr. Jennings may appeal. We evaluate “whether a judgment is final for purposes of appeal, and if the appeal is found to be premature, it must be dismissed.” Blechle v. Goodyear Tire & Rubber Co., 28 S.W.3d 484, 486 (Mo.App. E.D.2000). The general rule is that “[a] dismissal failing to indicate that it is with prejudice is deemed to be without prejudice.” Atkins v. Jester, 309 S.W.3d 418, 422–23 (Mo.App. S.D.2010) (citing Rule 67.03) (internal quotations omitted). Here, the trial court dismissed Dr. Jennings's petition without indicating whether the dismissal was with or without prejudice. Thus, the dismissal was without prejudice.

Normally, a dismissal without prejudice is not a final judgment and, therefore, is not appealable. Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). However, there are exceptions to this rule. When a dismissal without prejudice operates to preclude a party from bringing another action for the same cause and becomes res judicata of what the judgment actually decided, then an appeal may be taken. Id. Likewise, when the dismissal has the “practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum,” then an appeal may be taken. Id. In instances like the present case, where the trial court dismisses a petition without prejudice for failure to state a claim, and the plaintiff elects to stand on the dismissed petition and not to plead further, then that dismissal effectively bars the plaintiff from re-filing the action in its original form. Bachman v. Bachman, 997 S.W.2d 23, 25 (Mo.App. E.D.1999); Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503, 506 (Mo. banc 1991). We therefore may take this appeal.

A. Dr. Jennings's Breach of Contract Claims

Dr. Jennings's petition advanced three separate claims for breach of contract, each pled in the alternative. Count I alleged a breach of his employment agreement. Count II alleged a breach of SSM's written severance policy. Count III alleged a breach of a verbal severance agreement. On appeal, however, he has combined these three counts into one point. We will evaluate each claim in turn.

1. Breach of Employment Agreement

Count I of Dr. Jennings's petition alleged that SSM breached Dr. Jennings's employment agreement by not paying him severance in accordance with SSM's corporate severance policy. In order to succeed on a breach of contract claim, the plaintiff must demonstrate the following necessary elements: (1) the existence and terms of a contract; (2) that plaintiff performed or tendered performance pursuant to the contract; (3) breach of the contract by the defendant; and (4) damages suffered by the plaintiff. Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. banc 2010). Dr. Jennings argues the trial court erred in granting SSM's motion to dismiss because the severance policy was duly incorporated into his employment agreement when SSM made its oral promise to pay severance. We disagree.

Count I of the petition averred: (1) the severance policy, which was an approved published policy of SSM, was duly incorporated into the employment agreement; (2) Dr. Jennings performed his obligations under the employment agreement; (3) the employment agreement contained an implied covenant of good faith and fair dealing which forbade SSM from evading its obligations under the agreement and its attendant policies and procedures; (4) SSM breached the agreement by not paying Dr. Jennings any severance, and (5) Dr. Jennings suffered damages as a result of that breach.

SSM argued in its motion to dismiss that Count I failed to state a claim upon which relief could be granted because the employment agreement included an integration clause. That integration clause, SSM contended, effectively sealed the contract at the time of its signing and constituted the entire agreement of the parties.¹ We agree.

A written contract is presumed to be “the final memorial of the parties' agreement and an integration clause further confirms the all-inclusive nature of the document.” RLI Ins. Co. v. Southern Union Co., 341 S.W.3d 821, 830 (Mo.App. W.D.2011). As a result, the “law conclusively presumes all prior and contemporaneous agreements have been merged into a written contract,” particularly when the contract contains an integration clause. Clean Uniform Co. St. Louis v. Magic Touch Cleaning, Inc., 300 S.W.3d 602, 611 (Mo.App. E.D.2009) (internal quotations omitted). Here, Dr. Jennings's employment agreement included an integration clause which stated, in relevant part:

This Agreement constitutes the entire agreement between Hospital and Physician and supersedes all prior proposals, negotiations, representations, communications, writings and agreements between Hospital and Physician with respect to the subject matter hereof, whether oral or written.

In response, Dr. Jennings argues against the efficacy of the integration clause by asserting to this Court that Count I actually alleged the severance agreement was incorporated due to SSM's oral promise to provide severance. He advances this argument on the basis that, despite the clear language of Count I, he incorporated by reference the entire factual background of his petition, including his averments concerning the alleged oral promise. We find this specious argument unsupported by the petition.

Incorporation by reference pursuant to Rule 55.12 is a useful tool in avoiding repetition in a pleading. Hester v. Barnett, 723 S.W.2d 544, 561 (Mo.App.W.D.1987). However, adoption by reference “does not dispel the requirements that the pleading—as enhanced by the reference adopted—be simple, concise, and direct.” Id. (quoting Rule 55.04) (internal quotation omitted). The pleading is still required to “present, define and isolate controverted issues as to advise the trial court and the parties of the issues to be tried and to expedite the trial of the cause on the merits.” Id. (quoting Pillow v. General Amer. Life Ins., Co., 564 S.W.2d 276, 280 (Mo.App. E.D.1978)). It would be incongruous with the time-saving intent of incorporation by reference to allow the pleader to overcome a...