Macke Laundry Service Ltd. Partnership v. Jetz Service Co., Inc.
| Citation | 931 S.W.2d 166 |
| Decision Date | 27 August 1996 |
| Docket Number | No. WD,WD |
| Parties | MACKE LAUNDRY SERVICE LIMITED PARTNERSHIP, Appellant, v. JETZ SERVICE CO., INC., et al., Defendant, Ronald Byers, et al., Respondents. 50935. |
| Court | Court of Appeal of Missouri (US) |
Stephen G. Mirakian, Wyrsch, Atwell, Mirakian, Lee & Hobbs, Kansas City, for appellant.
Lindsay K. McFerrin, Miller, Dougherty & Modin, Kansas City, for respondents.
Before BRECKENRIDGE, P.J., and LAURA DENVIR STITH and EDWIN H. SMITH, JJ.
Macke Laundry Service Limited Partnership appeals from the trial court's order granting summary judgment in favor of Ronald Byers and the law firm of Newhouse, Byers & Swaney, P.C. Macke contends that the trial court erred by granting summary judgment on its claim that Mr. Byers conspired with his client, Jetz Service Co., Inc., to commit tortious interference with contract rights, champerty and maintenance of litigation, 1 and malicious prosecution. Specifically, Macke claims that it was error for the trial court to hold that, as a matter of law, an attorney is immune from liability for civil conspiracy with the attorney's client unless the attorney is individually liable for the underlying tort or the attorney had a personal interest in the commission of the underlying tort.
The judgment of the trial court is affirmed.
On appeal from summary judgment, this court will review the record in the light most favorable to the party against whom judgment was entered. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). Macke and Jetz are business entities which leased laundry rooms in apartment buildings, where they installed their coin-operated laundry machines for use by the buildings' other tenants. Macke and Jetz competed for the right to be the exclusive provider of laundry machines at various locations in the Kansas City area, including apartment complexes known as Fox Crossing, Broadway Village, Briarwood Hills, and Oak Rose/Sal Marco.
On October 1, 1986, Macke entered into a five-year lease with the owner of the Fox Crossing property. The lease included the following "right of first refusal" provision:
Should Lessor, upon the expiration of the initial or any renewal lease term, or within 12 months thereafter, elect to lease the Premises to any other person or entity similarly engaged in the business of operating automatic laundry equipment, Lessee shall have the right of first refusal to meet any bona fide offer to let the Premises on the identical terms and conditions of such offer.
On June 20, 1988, the owner of the Fox Crossing property entered into a five-year lease with Jetz to begin October 1, 1991. On July 21, 1988, the owner informed Macke that it would not renew its lease with Macke.
In a letter dated April 19, 1991, the owner told Macke that its right of first refusal was invalid due to Macke's "inability to provide the requested equipment." In another letter sent ten days later, the owner identified the "requested equipment" as a coin box security system matching certain specifications, as supplied by Jetz. The coin box security system was under the control of a company affiliated with Jetz which would not sell to Macke. Macke then made a demand for arbitration, as provided by its lease with the owner. On October 2, 1991, the arbitrator ruled that Macke had a right of first refusal to meet the terms of the Jetz lease because the coin box security system was not a term or condition of the Jetz lease.
While the arbitration was pending, a further provision was added to the Jetz lease for the Fox Crossing property. The lease addendum, dated August 27, 1991, provided that "[e]ither party may terminate this lease for any reason by written notice during the first thirty-six hours after the execution of this lease." Mr. Byers drafted this "thirty-six hour" clause for Jetz.
On October 4, 1991, Macke exercised its right of first refusal by submitting a lease to match the terms of the Jetz lease. In response to Macke, the owner's attorney drafted a letter demanding that Macke vacate the premises. The letter, which was dated October 10, 1991, observed that Macke was purporting to match the terms of a Jetz lease which included a thirty-six hour termination clause. The letter stated that Macke had adopted the thirty-six hour termination clause by matching the terms of Jetz's lease, and that the owner was electing to exercise that clause to terminate the lease with Macke.
On October 10, 1991, the owner's attorney sent a copy of the letter to Jetz's counsel, Mr. Byers, along with a cover letter asking Mr. Byers to review the language of the letter to Macke. Mr. Byers then sent by facsimile transmission of a copy of both letters to Donald Sommers, who was Jetz's local manager. The transmittal page of the fax included the remark, "Maybe our trap will work."
Macke did not vacate the premises, and on January 22, 1992, the owner's attorney sent a letter to the owner of the Fox Crossing property stating that Mr. Byers had directed the owner's attorney to file an unlawful detainer action against Macke. On February 25, 1992, Mr. Byers sent a proposed agreement to the owner's attorney stating that Jetz would defend and indemnify the owner and pay the owner's legal costs, in connection with "the proposed unlawful detainer actions against Macke Laundry Service and any other claims, costs and liabilities arising from such actions." The letter further stated that this agreement was contingent upon the acceptance, by owner's counsel, of all of the reasonable recommendations of Jetz or Jetz's counsel concerning the pursuit of the litigation. Counsel for the owner executed the agreement on the owner's behalf.
In March, 1992, the owner filed suit for unlawful detainer as requested and directed by Mr. Byers, acting for Jetz. This action was dismissed without prejudice on the date of trial, when it was discovered that the owner had been accepting rental payments from Macke. In June, 1992, the Circuit Court of Jackson County entered summary judgment in favor of Macke in an action filed to challenge the arbitration award which had granted Macke a right of first refusal on the Fox Crossings lease.
Thereafter, on August 6, 1996, the owners refiled the unlawful detainer actions against Macke in the Circuit Court of Platte County, Associate Division. Prior to this filing of the petitions, Jetz agreed that it would continue to pay the legal fees and costs of the unlawful detainer actions. Counsel for the owner also met with Mr. Byers prior to the filing of the petition, and Mr. Byers "approved of" the filing of the actions. The unlawful detainer petitions were denied and Macke's right to continue leasing the premises was upheld. In its judgment on the consolidated cases for Macke, the trial court found that the actions were frivolous and without merit.
On September 10, 1986, Macke entered into a five-year lease with the owner of the Broadway Village property. The lease included a provision giving Macke a right of first refusal. On November 26, 1991, the owner informed Macke of its intent to exercise the cancellation provision of its lease with Macke.
On December 6, 1991, the owner entered into a five-year lease with Jetz. The Jetz lease include the thirty-six hour termination provision. On December 13, 1991, the owner sent a letter to Macke enclosing the Jetz lease, and asking for a matching lease within twenty-four hours, should Macke choose to exercise its right of first refusal.
On December 26, 1991, the owner sent a letter to Macke stating that Macke's exercise of its right of first refusal had failed to match the terms of the Jetz lease because the Jetz lease "had many significant differences in terms and conditions." In a subsequent memo from Mr. Byers to the owner's attorney, Mr. Byers stated that there were substantial differences between the Macke and Jetz leases with respect to "the amount of insurance to be provided, lessee's right to adjust lease payments, an arbitration clause, and several other differences." The owner demanded that Macke vacate the premises, and Macke obtained arbitration of the dispute. The ensuing arbitration resulted in a decision upholding Macke's continuing leasehold rights.
On January 6, 1987, Macke entered into a five-year lease with the owner of the Briarwood Hills property. The lease included a provision giving Macke a right of first refusal. The lease also included the following provision:
This Agreement shall automatically renew itself for successive, similar terms as the initial term unless either party gives written notice of its intention not to renew during the first month of the final year of the initial term or any renewal term. Lessee to notify lessor 30 days prior to renewal of this contract.
The first month of the final year of the initial term of the lease passed without either party giving written notice of an intention not to renew.
On February 17, 1992, the owner entered into a ten-year lease with Jetz. The Jetz lease included the thirty-six hour termination provision. On February 18, 1992, the owner sent a letter to Macke enclosing the Jetz lease, and asking for a matching lease within twenty-four hours, should Macke choose to exercise its right of first refusal. In response, Macke claimed that its own lease had automatically renewed because of the owner's failure to give timely notice of its intention not to renew. Consequently, argued Macke, the Jetz lease was invalid, and therefore Macke's right of first refusal was inapplicable.
Macke then made a demand for arbitration, as provided by its lease with the owner. Macke claimed that, at least thirty days before the end of the initial term, it had given the owner notice that the lease would renew. The owner denied that any such notice had been given. The arbitrator ultimately found in favor of Macke.
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