Killian Const. Co. v. Jack D. Ball & Associates
| Decision Date | 30 November 1993 |
| Docket Number | No. 18446,18446 |
| Citation | 865 S.W.2d 889 |
| Court | Missouri Court of Appeals |
| Parties | KILLIAN CONSTRUCTION COMPANY, Plaintiff-Appellant, v. JACK D. BALL & ASSOCIATES, and Crawford Construction Company, Defendants-Respondents. |
Donald W. Jones, Timothy E. Gammon, John W. Forkner, Hulston, Jones, Gammon & Marsh, Springfield, for plaintiff-appellant.
John W. Sims, Haymes, Sims & Thompson, Marshfield, Lincoln J. Knauer, Farrington & Curtis, Clyde R. Allemann, Dickey, Allemann, Chaney & McMurry, Springfield, for defendants-respondents.
Killian Construction Company, a corporation, and Dean Page filed a multi-count petition against the Reorganized School District R-VI of Christian County and the present defendants. Page was a taxpayer in the school district. The counts against the district were severed and tried, with judgment rendered for it. That judgment was affirmed here. Page v. Reorganized School Dist. R-VI, 765 S.W.2d 317 (Mo.App.1989). Plaintiff Killian alone then filed a "Revised Second Amended Petition" against "Jack D. Ball & Associates, and Crawford Construction Co." 1
Pursuant to motion of defendants, the trial court struck certain portions of that petition on the basis of "res judicata, collateral estoppel, and the law of the case". Thereafter, the trial court sustained defendant's motion to dismiss for failure to state a claim for which relief may be granted, see Rule 55.27(a)(6), and entered judgment in favor of defendants.
In reviewing to determine if there is a claim stated this court assumes every fact pleaded in the petition to be true and assumes every inference in favor of the plaintiff which may reasonably be drawn from those facts. Cuba's United Ready Mix v. Bock Concrete, 785 S.W.2d 649, 650 (Mo.App.1990). The issue to be decided is if, based on those facts and inferences, there are principles of substantive law which would entitle plaintiff to relief. Inman v. Reorganized School Dist. No. II, 814 S.W.2d 671, 673 (Mo.App.1991). "A petition is not to be dismissed for failure to state a claim unless it appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Ray v. Dunn, 753 S.W.2d 652, 654 (Mo.App.1988).
In the first count contained in plaintiff's "Revised Second Amended Petition", denominated "Count III--Damage Action for Malicious Interference", plaintiff alleges that it was the lowest bidder by $24,000 to construct an elementary school for the school district. Crawford Construction Company was the next lowest bidder. The contract for the construction was awarded to Crawford Construction Company. Jack D. Ball & Associates were architectural consultants to the school district. The petition states that the contract was awarded to Crawford due to numerous wrongful acts of defendants. Plaintiff asserts that it had a reasonable business expectancy that it would be awarded the contract as it was a responsible construction company which had submitted the lowest bid. It seeks damages as a result of not receiving the contract.
To state a cause of action for tortious interference with business relations, elements to be alleged are: "(1) a contract or valid business relationship or expectancy (not necessarily a contract); (2) defendants' knowledge of the contract or relationship; (3) intentional interference by the defendant inducing or causing a breach of contract or relationship; (4) absence of justification; and (5) damages resulting from defendants' conduct." Defino v. Civic Center Corp., 718 S.W.2d 505, 511 (Mo.App.1986). See also Community Title v. Roosevelt Federal S & L, 796 S.W.2d 369, 372 (Mo. banc 1990).
The elements in question here are the first and fourth. We first consider whether the lowest responsible bidder on a school construction contract has a valid business expectancy. The parties have not cited us to a case determining whether the lowest bidder on a public project might have a valid business expectancy. Likewise, we have found none. Somers Construction Company v. Board of Education, 198 F.Supp. 732 (D.N.J.1961), involved a similar situation and although allowing a suit for "tortious interference with a prospective economic advantage" against the architect to continue, did not discuss what is a valid business expectancy or "prospective economic advantage".
The parties have briefed certain issues regarding the affirmance here of Page. We discuss those issues--res judicata, collateral estoppel and law of the case--without discussing whether they are properly raised in a motion to dismiss for failure to state a claim for which relief may be granted. See King Gen. Contr. v. Reorganized Church, 821 S.W.2d 495, 498 (Mo. banc 1991); Terre Du Lac Ass'n v. Terre Du Lac, Inc, 737 S.W.2d 206 (Mo.App.1987).
Page involved counts of the petition seeking mandamus, injunction and declaratory judgment. 765 S.W.2d at 318. It states that where a public body has the right to reject any and all bids, by the rejection of a bid there is no vested interest or property right in the rejected bidder. Id. at 321. However, that does not answer whether there might be a valid business expectancy to receive the contract if one is the lowest responsible bidder submitting a proper bid.
Plaintiff does not have to show in order to establish a valid business relationship or expectancy that it had a contract. Fischer, etc. v. Forrest T. Jones & Co., 586 S.W.2d 310, 315 (Mo. banc 1979); Teale v. American Mfrs. Mut. Ins. Co., 687 S.W.2d 218, 219 (Mo.App.1984). "The business relationship protected need not be evidenced by an enforceable contract, but there must be reasonable expectations of economic advantage or commercial relations." Hartbarger v. Burdeau Real Estate Co., 741 S.W.2d 309, 310 (Mo.App.1987).
As we conclude that Page does not establish that there was no valid business expectancy and as this is a different cause of action, neither res judicata or collateral estoppel are applicable here. Res judicata (claim preclusion) precludes the parties or their privities from relitigating the same cause of action whereas collateral estoppel (issue preclusion) precludes the same parties or those in privity from relitigating issues previously litigated. Eugene Alper Constr. Co. v. Joe Garavelli's, 655 S.W.2d 132, 136 (Mo.App.1983). "Collateral estoppel only pertains to those issues which were necessarily and unambiguously decided". King, 821 S.W.2d at 501. That did not previously occur here.
Nor does law of the case apply. "Where the issues or evidence on the retrial are different from those vital to the first adjudication and opinion, the law of the case does not conclude either the trial court or the appellate court". Davis v. J.C. Nichols Co., 761 S.W.2d 735, 741 (Mo.App.1988). The issues here, though based on the same facts and related, are different as they pertain to a different theory and cause of action. 2
We emphasize that we are deciding this matter on the basis of facts in the petition which we must accept as true, not on facts as they may be revealed by the evidence. Based upon the facts in the petition, a business expectancy was shown. Under normal circumstances it would be expected that a school district, in order to save $24,000, would make its contract with plaintiff and not Crawford. Where a proper bid is made, we cannot say as a matter of law that the lowest bidder by a substantial amount could not have a valid business expectancy that it would receive the contract if awarded.
Next, we must determine if the pleading reflects that there was an absence of justification for the alleged acts of defendants. Defendants state that the closest case to this situation is Briner Elec. Co. v. Sachs Elec. Co., 680 S.W.2d 737 (Mo.App.1984). There, the court discussed the question of competition justifying an intentional interference with another's business relation. 680 S.W.2d at 741. Citing the Restatement (Second) of Torts § 768 (1979), the court states that a competitor may not employ "wrongful means" in interfering with the business relationship. 3
The petition alleged that defendants "deliberately and...
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