Luebbering v. Varia

• Decision Date: 05 October 2021
• Docket Number: No. ED 109341,ED 109341
• Citation: 637 S.W.3d 366
• Parties: Adam LUEBBERING, et al., Appellants, v. Shimir VARIA, et al., Respondents.
• Court: Missouri Court of Appeals

637 S.W.3d 366

Adam LUEBBERING, et al., Appellants,

v.Shimir VARIA, et al., Respondents.

No. ED 109341

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: October 5, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied November 8, 2021

Application for Transfer Denied February 8, 2022

Sarah M. Vatterott, 2458 Old Dorsett Rd. Ste. 230, Maryland Heights, MO 63043, For Appellants.

Jeffrey J. Brinker, Claire C. Kates, 34 N. Meramec Ave. 5^th Fl., Clayton, MO 63105, For Respondent.

OPINION

Colleen Dolan, J.

Adam and Stephanie Luebbering ("Appellants") appeal the trial court's grant of Lexicon Relocation, LCC's ("Respondent") motion to dismiss. Appellants raise three points on appeal relating to a forum selection clause incorporated in an agreement between them and Respondent. Appellants argue the trial court erred in enforcing the forum selection clause and dismissing the case because: (1) the forum selection clause does not apply to Appellants’ tort claims; (2) enforcement of the forum selection clause would be unfair; and (3) enforcement of the forum selection clause would be unreasonable. We reverse and remand.

I. Factual and Procedural Background

Appellants purchased a residence located at 611 Southern Hills Drive, Eureka, Missouri 63025 ("Property") from Shimir and Lori Varias ("Sellers"). Sellers utilized Respondent, a relocation company, to assist with the sale of the Property. In anticipation of the sale, Respondent requested a broker's market analysis and strategy report ("Report") to be prepared, which required disclosure of any issues that would affect insurability of the Property. The Report provided that "Seller indicates there is a spring or drainage issue in the rear yard that they have had a landscaper remedy." Two disclosure statements containing information about the condition of the Property were also provided to Appellants. The first disclosure did not make any mention of the spring or drainage issues revealed in the Report, and the second disclosure included a check mark in a box indicating "No" next to inquiries regarding Sellers’ knowledge of "[a]ny history of flooding, leaking, dampness or water damage" or "any drainage, grading problems or standing water in or about the property."

Appellants made an offer, which was accepted by Sellers. As part of the purchase transaction, Appellants signed a residential sale contract and a Rider to Home Purchase Agreement ("Rider"), which includes the following forum selection clause:

Any dispute arising under or in connection with this Rider and any claim affecting its validity, construction, effect, performance or termination (collectively "Claim") shall be resolved exclusively by the Federal or State Courts in the judicial district in which Seller has its principal place of business, the jurisdiction of which the parties hereby irrevocably submit; provided that if Seller is a party to such Claim, the matter shall be resolved exclusively by, as the case may be, (i.) the United States District Court, Middle District of Florida, or (ii.) the Circuit Court in and for the Fourth Judicial Circuit in and for Duval County, Florida (or Duval County Court, if the jurisdiction limits apply), which Courts are within the judicial district in which Seller has its principal place of business.

Both Buyer and Seller hereby waive any rights each may have to request a trial by jury. Further, Buyer expressly rejects all mediation, arbitration and other alternative dispute resolution procedures. Notwithstanding anything herein to the contrary, Seller has the right to seek injunctive relief in the county of jurisdiction in which the Property is located.¹

The closing occurred on June 2, 2017, and Sellers executed the warranty deed conveying the Property to Appellants.

On September 13, 2018, Appellants filed suit against Sellers, Respondent, and the inspection company ("Inspector") that inspected the Property prior to the sale alleging that Appellants have not been able to enjoy portions of the Property, namely the basement and the backyard, and have incurred damages in excess of $25,000. Respondent filed a motion to dismiss the action against Respondent based on the above outbound forum selection clause. Appellants filed a response in opposition and argued both that the forum selection clause does not apply because the claims against Respondent are not related to the Rider itself or the terms therein and that the forum selection clause is unenforceable because it is unfair and unreasonable. After hearing arguments, the trial court granted Respondent's motion to dismiss for lack of personal jurisdiction holding that the "instant lawsuit is a dispute arising under or in connection with the Rider" and the forum selection clause was "fair and reasonable."

On January 21, 2020, Appellants filed their motion to reconsider the motion to dismiss and/or for leave to file a first amended petition and add a defendant. The trial court granted Appellants’ motion. On January 29, 2020, Appellants filed their first amended petition asserting eight counts: violations of the Missouri Merchandising Practices Act ("MMPA") against Sellers and Respondent (Counts I and II); fraudulent inducement against Sellers and Respondent (Counts III and V); negligent misrepresentation against Sellers and Respondent (Counts IV and VI); civil conspiracy against Sellers and Respondent (Count VII); and negligence against Inspector (Count VIII).

Respondent subsequently filed a second motion to dismiss Appellants’ first amended petition insisting upon the applicability and enforceability of the forum selection clause incorporated in the Rider. Appellants did not file a response. After the trial court heard arguments on the motion to dismiss, it granted Respondent's second motion to dismiss without prejudice on October 5, 2020.

This appeal follows.

II. Standard of Review

Our review of a trial court's order granting a motion to dismiss is de novo. Gibbons v. J. Nuckolls, Inc. , 216 S.W.3d 667, 669 (Mo. banc 2007). "De novo review compels this court to consider the merits of the motion to dismiss under the same standard applied by the trial court when considering the issue." Mosley v. English , 501 S.W.3d 497, 503 (Mo. App. E.D. 2016).

III. Discussion

Certification under Rule 74.01(b)

Before addressing the merits of Appellants’ appeal, we must first determine whether we have jurisdiction to review this appeal. See Wilson v. City of St. Louis , 600 S.W.3d 763, 765 (Mo. banc 2020). "For this Court to have jurisdiction, the judgment entered by the circuit court and appealed by the parties must have been a ‘final judgment’ as that phrase is used in section 512.020(5)."² Id. A final judgment eligible for appeal must: (1) be a "judgment" that resolves at least one claim in a lawsuit and establishes the rights and liabilities of the parties with respect to that claim and (2) must be a "final" judgment in that it resolves all claims against all parties or because it is eligible for certification as "final" under Rule 74.01(b).³ Id. at 771 ; Energy Mkt. 709, LLC v. City of Chesterfield , 614 S.W.3d 643, 648 (Mo. App. E.D. 2020). For purposes of § 512.020(5), a judgment is eligible for certification under Rule 74.01(b) only if it disposes of a "judicial unit" of claims by either disposing of all claims by or against at least one party or it disposes of one or more claims that are sufficiently distinct from the claims that remain pending in the trial court. Energy Mkt. 709, LLC , 614 S.W.3d at 648. "If a judgment is eligible for certification under Rule 74.01(b), the trial court may exercise its discretion to certify the judgment if it expressly finds in its certification that ‘there is no just reason’ for delaying appeal of the judgment until dispositions are reached on the remaining claims." Id.

Appellants filed a notice of appeal on November 13, 2020. On December 15, 2020, Respondent filed a motion to dismiss the appeal for lack of jurisdiction on the grounds that the judgment entered in October of 2020 was not a final judgment. Appellants, subsequently, filed their legal file and suggestions in opposition to the motion to dismiss the appeal. On February 5, 2021, prior to our Court issuing an order determining whether the appeal should be dismissed, the trial court entered an order and amended judgment stating that it was granting Appellants’ motion to revise the judgment and that the dismissal of the claims against Respondent "is ordered amended to include an express determination that there is no just reason for delay, pursuant to Rule 74.01(b)." Even though the trial court determined that there was no just reason for delay and designated its judgment as a final judgment for purposes of appeal pursuant to Rule 74.01(b), we must, nonetheless, determine whether the designation was proper.⁴ See Columbia Mut. Ins. Co. v. Epstein , 200 S.W.3d 547, 550 (Mo. App. E.D. 2006).

There is no dispute that the trial court's decision is a "judgment." As a result, we now determine if the judgment is final and eligible for certification under Rule 74.04(b). On appeal, Appellants argue that the trial court's judgment as amended is a final appealable judgment that disposed of a judicial unit, thus certification was proper. Respondent contends that certification was improper because Appellants’ civil conspiracy count demonstrates the intertwined nature of the litigation against Respondent and Sellers and, thus, the trial court could not adjudicate a distinct judicial unit of claims.

Civil conspiracy is defined as "an agreement between at least two persons to do an unlawful act, or to use unlawful means to do an act which is lawful." Hibbs v. Berger , 430 S.W.3d 296, 320 (Mo. App. E.D. 2014) (quoting Blaine v. J.E. Jones Constr. Co. , 841 S.W.2d 703, 713 (Mo. App. E.D. 1992) ). "The tort of civil conspiracy does not exist in its own right; rather, it acts to hold the conspirators jointly and severally liable for the underlying...