Jurisprudence Wireless Communications v. Cybertel Corp.

• Decision Date: 27 June 2000
• Parties: (Mo.App. E.D. 2000) . Jurisprudence Wireless Communications, Inc., d/b/a JWC Cellular, Plaintiff/Appellant, v. Cybertel Corporation, d/b/a Ameritech Cellular Services, and Mark Eckhout, Defendants/Respondents. Case Number: ED76314 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

26 S.W.3d 300 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Jurisprudence Wireless Communications, Inc., d/b/a JWC Cellular, Plaintiff/Appellant, v. Cybertel Corporation, d/b/a Ameritech Cellular Services, and Mark Eckhout, Defendants/Respondents.

Case Number: ED76314

Missouri Court of Appeals Eastern District

Handdown Date: 06/27/2000

Appeal From: Circuit Court of City of St. Louis, Hon. Robert Dierker

Counsel for Appellant: Douglas Dowd and James Dowd

Counsel for Respondent: Jeffrey Kalinowski

Opinion Summary: Plaintiff JWC Cellular appeals summary judgment in favor of defendants Ameritech Cellular and Eckhout in its action for tortious interference with a commercial or business expectancy.

AFFIRMED.

Division Four holds: The trial court did not err in granting summary judgment and in excluding supplementary materials submitted by JWC Cellular in opposition to defendants' motion for summary judgment.

Opinion Author: William H. Crandall, Jr., Presiding Judge

Opinion Vote: Hoff, J. and Pudlowski, SJ, concur

Opinion:

Plaintiff, Jurisprudence Wireless Communications, Inc. d/b/a JWC Cellular (hereinafter JWC), appeals from the judgment of the trial court granting summary judgment in favor of defendants, CyberTel Corporation d/b/a Ameritech Cellular Services (hereinafter CyberTel) and Mark Eckhout, in an action for tortious interference with a commercial or business expectancy. We affirm.

In February 1995, JWC¹ and CyberTel entered into two contracts. One agreement, entitled Ameritech Cellular, Paging and Wireless Data Services Sales Agreement (hereinafter Sales Agreement), provided that JWC would serve as an "agent" or "dealer" for the sale of various cellular telephone services to customers, who would then become the customers of CyberTel. JWC was paid a one-time commission per subscriber as well as a maintenance fee for each account equal to a percentage of the customer's monthly service charge. CyberTel reserved the right to approve any advertising or marketing materials to be used in the sale of services by JWC. The other agreement, entitled Equipment Agreement, provided that JWC, as CyberTel's "agent," would sell equipment to customers for the sole purpose of securing sales of CyberTel's cellular services.

CyberTel, through dealers such as JWC, developed a plan for businesses, known as Ameritech Cellular Business Concepts (hereinafter ACBC), which offered cellular and paging services at discounted rates to individuals employed by a plan sponsor, usually the employer, with the sponsor guaranteeing payment. In January 1996, JWC offered employees of the City of St. Louis (hereinafter City) cellular services under an ACBC plan. Although JWC was aware that City's charter precluded it from serving as guarantor on an ACBC account, JWC distributed a "market survey" to City employees. JWC subsequently entered into an ACBC agreement with Surfaction Products, Inc. (hereinafter Surfaction) to serve as guarantor on the cellular telephone contracts with City employees, although they were not employed by Surfaction. Pursuant to the Surfaction ACBC plan, JWC sold cellular service to individual City employees.

In January 1996, CyberTel advised JWC that it should stop offering unapproved "special plans" to City employees in violation of its "dealer agreement." When JWC continued to enroll City employees as subscribers, CyberTel determined that Surfaction was not financially qualified to guarantee the number of activations under its ACBC plan and informed Surfaction that it should stop soliciting new accounts. In March 1996, CyberTel terminated its relationship with JWC.

JWC brought an action against CyberTel in the City of St. Louis, alleging breach of the Sales Agreement (Count I), breach of the Equipment Agreement (Count II), and unjust enrichment. Based on a venue provision contained in the contracts, CyberTel moved to dismiss or to transfer venue to either Cook County or St. Louis County. The trial court ordered the case transferred to St. Louis County. JWC then voluntarily dismissed the action.

JWC later brought the present action against CyberTel and Eckhout (hereinafter jointly referred to as CyberTel) for tortious interference with JWC's business relationship with Surfaction. CyberTel moved for summary judgment on the basis that JWC failed to state a claim. The trial court granted summary judgment in favor of CyberTel. JWC appeals.

In its first point on appeal, JWC challenges the trial court's grant of summary judgment in favor of CyberTel. Summary judgment may be entered when a movant demonstrates, through the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, that there is no genuine issue as to any material fact and that movant is entitled to judgment as a matter of law. Rule 74.04. Our standard of review is essentially de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). "The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment." Id. The appellate court reviews the record in the light most favorable to the party against whom judgment was entered. Id. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. Id. The review of a grant of summary judgment is equivalent to reviewing a court-tried proceeding; if the judgment is sustainable under any theory, it must be sustained. Jos. A. Bank Clothiers, Inc....