Kincaid Enterprises, Inc. v. Porter

• Decision Date: 25 June 1991
• Docket Number: Nos. WD,s. WD
• Citation: Kincaid Enterprises, Inc. v. Porter, 812 S.W.2d 892 (Mo. App. 1991)
• Parties: KINCAID ENTERPRISES, INC., (Respondent/Appellant), Appellant, v. Herbert L. PORTER, (Appellant/Respondent), Appellant. KINCAID ENTERPRISES, INC., Appellant, v. Herbert L. PORTER, Respondent. 42970, WD 42971.
• Court: Missouri Court of Appeals

Page 892

812 S.W.2d 892

KINCAID ENTERPRISES, INC., (Respondent/Appellant), Appellant, v.Herbert L. PORTER, (Appellant/Respondent), Appellant.

KINCAID ENTERPRISES, INC., Appellant, v.Herbert L. PORTER, Respondent.

Nos. WD 42970, WD 42971.

Missouri Court of Appeals Western District.

June 25, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 30, 1991.

Application to Transfer Denied Sept. 10, 1991.

Arthur A. Benson II and Jamie Kathryn Lansford, Kansas City, for appellant.

H. Kent Desselle, Independence, for respondent.

Before LOWENSTEIN, P.J., and SHANGLER and MANFORD, JJ.

SHANGLER, Judge.

The plaintiffKincaid Enterprises brought a petition against the defendantHerbert Porter that alleged that the defendant breached the contract between them for the sale of a business.The petition alleged also that the defendant never intended to honor the contract and that his representations to the contrary were fraudulent.The relief sought was actual damages for the breach of contract and actual and punitive damages for the fraudulent representations.The plaintiff tendered, and the court submitted, both theories of recovery, and the jury returned verdicts for the plaintiff on them both.One was for $35,000 for breach of contract, and the other was for $36,000 for fraudulent representation.A judgment for $71,000 was entered on the verdicts.

The defendant Porter moved for new trial or, alternatively, for judgment notwithstanding the verdict.The trial court sustained the motion for judgment notwithstanding the verdict as to the recovery of $36,000 for fraudulent representation, and sustained the judgment for $35,000.The defendant Porter and the plaintiff Kincaid each appealed the final judgment.¹

The Kincaid Appeal

The order of judgment notwithstanding the verdict, which both the plaintiff and defendant separately appeal, rests on determinations that, although the verdict for $35,000 for breach of contract and the verdict for $36,000 for fraudulent representation were each supported by substantial evidence, in combination they constituted "a double recovery of any actual damages proved" by the plaintiff Kincaid.It rests on the determination also that "it would be against the weight of the evidence to permit the verdicts of $35,000 and $36,000 each to stand" and for Kincaid to recover "a total judgment of $71,000."Accordingly, the court set aside the judgment for $36,000 for fraudulent representation notwithstanding the verdict, and overruled the post-trial motion as to the verdict for breach of contract.

A motion for judgment notwithstanding the verdict presents the same issue as a motion for directed verdict at the close of all the evidence: whether the plaintiff proved a submissible case.Wells v. Orthwein, 670 S.W.2d 529, 532[1,2](Mo.App.1984).Rule 72.01(a) directs that "[a]motion for a directed verdict shall state the specific grounds therefor."A motion for directed verdict that does not conform to the rules presents no basis for relief in the trial court nor preserves the issue in the appellate court.Christ v. Tice, 578 S.W.2d 319, 322(Mo.App.1979).

The motion for directed verdict at the close of all the evidence by the defendant Porter asserted:

1.That Plaintiffs[sic] petition fails to state the facts efficient [sic] to constitute a claim or cause of action against the Defendant upon which relief can be granted.

2.The evidence fails to establish or prove a prima facie case against the Defendant.

3.Under the law and Plaintiffs[sic] evidence, Plaintiff is not entitled to recover damages against the Defendant.

These are conclusions and bare generality, and not specific grounds as to why the defendant is entitled to relief and judgment by directed verdict.McRaven v. F-Stop Photo Labs, 660 S.W.2d 459, 460[1-3](Mo.App.1983).They do not even suggest the oddity of a double recovery or any other definite ground sufficient to invoke either a directed verdict or a judgment notwithstanding verdict.It was error for the trial court to enter in favor of defendant Porter judgment notwithstanding the verdict of $36,000 for the plaintiff Kincaid on the claim for fraudulent representation.

Kincaid argues, moreover, that the order to nullify the verdict for fraudulent representation is no more valid as a judicial initiative reserved to the trial court over its judgment.The control by a trial court to vacate, reopen, correct, or modify its judgment is retained during the 30 day period after entry of judgment.The court of its own initiative during that period may order a new trial for any reason it might have granted a new trial on the motion of a party.Rule 75.01.After that period, the power of the court over its judgment is confined to the grant of relief sought by a party in the after trial motion and for the reasons presented in the motion.Hopkins v. North Am. Co. For Life & Health Ins., 594 S.W.2d 310, 317[11, 12](Mo.App. banc 1980).Judgment on the verdicts was entered on November 2, 1989.Judgment notwithstanding the verdict for fraudulent representation was entered on January 18, 1990, more than thirty days later.It is not only the lapse of time that conditions the authority of the trial court over its judgment under Rule 75.01, but also the nature of the control reserved to the court.The order to enter judgment notwithstanding the verdict for fraudulent representation was not effective as a judicial initiative under Rule 75.01 not only because of the elapse of more than thirty days, but because the entry of a judgment notwithstanding verdict is not an authority the rule confers.

Kincaid notes the anomaly of an order of judgment notwithstanding a verdict that the order nevertheless finds properly returned and supported by the evidence.Kincaid notes also the irregularity of a rationale that finds that the damages returned by the verdict on each separate claim are supported by the evidence, and yet in composite are excessive and against the weight of the evidence.It is enough to say again that a judgment notwithstanding the verdict determines that the plaintiff has not proven a prima facie case.Wells v. Orthwein, 670 S.W.2d at 532[1, 2].A verdict that responds to an instruction that submits all of the necessary elements of the cause of action and is proven by evidence--as the trial court found as to both claims--is not vulnerable to adverse judgment.It is also enough to say that the corrective for a verdict that is against the weight of the evidence as excessive is an order for new trial, and not a judgment notwithstanding verdict.Rule 78.02;Don Gatson & Son, Inc. v. Vic Koepke Excavating & Grading Co., 693 S.W.2d 850, 853(Mo.App.1985).The motion of the defendant, in any event, contends neither that the verdicts are excessive nor that they are against the weight of the evidence.

The error the post-trial order undertakes to redeem is the redundancy of verdicts that return the same damages on the same evidence for the two separate wrongs.It is an irregularity, however, that the defendant Porter did not notice either by trial objection or in the post-trial motions for judgment or new trial.It is an irregularity, moreover, that was not amenable to correction at the initiative of the trial judge by judgment notwithstanding verdict under our procedures.Rule 75.01.

The appeal of the plaintiff Kincaid is sustained.

The Porter Appeal

The essential facts of the transaction are related in Kincaid Enters. v. Porter, 758 S.W.2d 503(Mo.App.1988), wherein we determined the breach of contract issue was submissible and reversed the judgment entered for the defendant Porter on a directed verdict.We repeat and amplify that recital of facts in order to better serve the issues this appeal presents.The facts are drawn in the manner most favorable to the Kincaid verdicts.

Kincaid and Porter were competitors in the business of providing ushers, ticket-takers and security personnel for public entertainment events in the metropolitan Kansas City area.In order to reduce the competition in the limited market for that service, on March 1, 1985, Kincaid Enterprises purchased from Herbert Porter, the business operated as a sole proprietorship, Porter Personnel Service.The contract called for the sale of the enterprise [exclusive of the "box-office" portion, ticket sales at fixed locations] as a "going concern, including the trade name, customer lists, contracts, uniforms, and employee list used by SELLER [Porter] in connection with the business."The contract contained a restrictive covenant which provided that for a period of three years from the date of the closing, Porter would not directly or indirectly engage in the usher service business in metropolitan Kansas City, except to continue to own and operate the "box office" portion of his business.Porter also agreed not to directly or indirectly request or advise any present or future clients to withdraw, curtail or cancel their business with Kincaid, or to disclose to any other person the names of the Porter clients, or to attempt to influence any Porter employee to terminate that employment.

The purchase price for the Porter business was $35,000.Of that amount, $6,000 was allocated to uniforms, $4,000 to goodwill, and $25,000 to the restrictive covenant.There was evidence that Kincaid did not receive all of the Porter uniforms [the only physical asset of the enterprise] that were due under the contract.There was evidence also that Kincaid did not receive use of the trade name, "Porter Personnel Services."Soon after the completion of the sale, rather, Porter told his customers that he was going out of business and that they would be contacted by the two services operating in the area.Porter also failed to assure customers that Porter Personnel would continue to provide service and people, and thereby destroyed the good will as well as the trade name Porter contracted to sell.

Nor did Kincaid receive an...