Murray v. Ray

• Decision Date: 04 October 1993
• Docket Number: Nos. 18373,18331,s. 18373
• Citation: 862 S.W.2d 931
• Parties: Edward L. MURRAY, Plaintiff-Appellant, v. James L. RAY, Colleen C. Ray, Connie J. Easley and John T. Easley, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 931

862 S.W.2d 931

Edward L. MURRAY, Plaintiff-Appellant, v. James L. RAY, Colleen C. Ray, Connie J. Easley and John T Easley, Defendants-Appellants.

Nos. 18373, 18331.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 4, 1993.

Robert W. Evenson, Evenson, Carlin & LePage, Pineville, for plaintiff-appellant.

Walter E. Williams, Joplin, for defendants-appellants.

MONTGOMERY, Judge.

Plaintiff, Edward L. Murray, brought this action against Defendants, James L. Ray and Colleen C. Ray, Connie J. Easley and John T. Easley, alleging in Count II that Defendants intentionally caused Greater Joplin Associates, Ltd., to terminate its business relationship with Plaintiff without justification. ¹ Count II was submitted to the jury by an instruction patterned after MAI 23.11 (tortious interference with contract), and the jury awarded Plaintiff $3,500 in damages against each Defendant for a total judgment of $14,000. Both sides filed appropriate after-trial motions, and all motions were overruled. Both Plaintiff and Defendants appeal.

In 1988, Plaintiff, along with Don Lawellin and Defendants James Ray and Connie Easley, purchased a Re/Max real estate franchise. All four were licensed Missouri real estate sales persons. That same year, with an initial investment of $6,000 each, they formed a Missouri corporation known as Greater Joplin Associates, Ltd., (GJAL), and began listing and selling property. Using the Re/Max name, GJAL operated in the Joplin, Missouri, area.

After incorporation, Don Lawellin became the sole director and was elected president and secretary of the corporation, since he was the only one of the investors who held a broker's license. In May of 1989, Lawellin resigned as broker, officer and director and relinquished his ownership in both the corporation and the Re/Max franchise. After this reshuffling, Defendants James Ray and his wife Colleen Ray became joint owners of one- third of the corporate stock, as did Defendant Connie Easley and her husband John Easley. Plaintiff owned the remaining one third. Defendant James Ray, who had by that time acquired a broker's license, replaced Lawellin as broker, officer and director of GJAL.

In the fall of 1989, Sally Woodman of the Harrison (Arkansas) Land Company contacted Plaintiff to request that he assist her and a prospective purchaser in their search for a large building which could be converted into a multipurpose facility. While assisting Woodman, Plaintiff learned that a B.F. Goodrich plant in Miami, Oklahoma, was for sale. Subsequently, Plaintiff and Woodman accompanied the prospective buyer, Danny Wallis, on a tour of the Goodrich facility.

In all, Wallis met with Plaintiff on three or four occasions, and in November 1989, Wallis advised Plaintiff and Woodman that he would pay them $500,000 as a referral fee if he could buy the Goodrich facility for $2 million. Plaintiff testified that Defendant James Ray asked for $50,000 as his share of this fee and became angry when Plaintiff refused his proposition.

Defendant James Ray later told Plaintiff to obtain an Oklahoma real estate broker to assist in the Goodrich deal, since he was concerned about the legality of Plaintiff selling Oklahoma real estate without a license from that state. Plaintiff never did so, although he testified that a broker in Oklahoma was "contacted."

On January 17, 1990, Defendants James Ray and Connie Easley gave Plaintiff a letter warning him that if he discussed corporate business or problems with outsiders he would be terminated. Plaintiff admitted that prior to receiving the letter he had engaged in such discussions.

On January 24, 1990, Defendant James Ray became aware of a written communication from B.F. Goodrich officials to Plaintiff, which indicated that Plaintiff was still assisting Wallis in the proposed Goodrich plant purchase. Up to that point, Plaintiff had given Defendant James Ray no indication that he was working with an Oklahoma broker. That evening all the Defendants met at the Re/Max office and agreed Plaintiff should be terminated.

The next day Defendant James Ray met with Plaintiff and told him he was being terminated for illegally selling real estate in Oklahoma. ² Subsequently, Defendant James Ray returned Plaintiff's license to the Missouri Real Estate Commission. Defendants James Ray and Connie Easley later filed a complaint with the Missouri Real Estate Commission against Plaintiff because of the Goodrich deal. The complaint resulted in no disciplinary action against Plaintiff.

After his termination, Plaintiff continued in the real estate business, and in April 1990, he placed his license with another broker with whom he had become associated.

The appeals by Plaintiff and Defendants have been consolidated and will be addressed separately in this opinion. Additional facts will be noted as necessary to the disposition of this case.

Defendants' Appeal No. 18331

Defendants present two assignments of error. Point I maintains that the trial court erred in denying Defendant's motion for directed verdict because Plaintiff's petition failed to allege facts sufficient to state a claim for tortious interference with a contract, in that there was no allegation of facts which, if proved, would establish absence of justification on the part of Defendants.

A defense of failure to state a claim upon which relief can be granted may be asserted at the trial on the merits, and such defense is never waived. Sisco v. James, 820 S.W.2d 348, 351 (Mo.App.1991); Rule 55.27(g)(2). ³

A petition is sufficient against a motion to dismiss if its allegations invoke substantive principles of law which entitle a plaintiff to relief and if it alleges facts which inform the defendant of what the plaintiff will attempt to prove at trial. Friedman v Edward L. Bakewell, Inc., 654 S.W.2d 367, 368 (Mo.App.1983). "The facts stated in the petition are to be taken as true, and if the facts pleaded and the reasonable inferences to be drawn therefrom, viewed most favorably from the plaintiff's vantage point, show any ground for relief, the petition may not be dismissed." Pillow v. General American Life Ins. Co., 564 S.W.2d 276, 279 (Mo.App.1978). In determining the sufficiency of the petition to state a claim, conclusions of the pleader are not considered. Cady v. Hartford Accident & Indem. Co., 439 S.W.2d 483, 485-86 (Mo.1969).

In addition, as Plaintiff reminds us, evidence presented at trial without objection results in an automatic amendment of the pleadings to conform to the evidence and the issues tried by consent. Sparks v. Consol. Aluminum Co., 679 S.W.2d 348, 353 (Mo.App.1984); Rule 55.33(b). Therefore, our review will consider such evidence, in addition to the allegations made in Plaintiff's petition.

A claim for tortious interference with a contract or business relationship requires proof of each of the following:

"(1) A contract or a valid business relationship or expectancy (not necessarily a contract);

(2) Defendant's knowledge of the contract or relationship;

(3) Intentional interference by the defendant inducing or causing a breach of the contract or relationship;

(4) The absence of justification; and

(5) Damages resulting from defendant's conduct."

Fischer, Spuhl, Herzwurm & Assoc., Inc. v. Forrest T. Jones & Co., 586 S.W.2d 310, 315 (Mo. banc 1979) (quoting Salomon v. Crown Life Ins. Co., 536 F.2d 1233 (8th Cir.), cert. denied, 429 U.S. 961, 97 S.Ct. 387, 50 L.Ed.2d 329 (1976)).

Summarized, Plaintiff's petition alleged that the parties formed GJAL and acquired the Re/Max franchise; that the parties entered into a shareholders' buy-sell agreement providing for the purchase of the shareholders' stock upon the happening of certain events; that Plaintiff owned an undivided interest in the Re/Max franchise; that the parties' agreements implied they would act in good faith and fairness to each other; and that Defendants' actions prevented Plaintiff from being a real estate salesman under the Re/Max franchise and from participating in GJAL, in which he had invested at least $10,000.

Specifically, Count II of the petition alleged, in part:

2. That during the period of time from September 16, 1988 and [sic] January 25, 1990, your Plaintiff was employed as a real estate salesman for Defendant, Greater Joplin Associates, Ltd.

3. That by virtue of said employment, the Plaintiff had a legitimate expectation of doing, and had a right to do business as a real estate salesman for the Defendant, Corporation.

4. That on or about January 25, 1990, Defendant, Jim Ray, with the consent and acquiescence of all Defendants, terminated the Plaintiff as a real estate salesman and caused his Missouri Real Estate License to be returned to the Missouri Real Estate Commission.

5. That the acts of the Defendants were done maliciously, were intentional, and were without just cause or excuse, and were for the purpose of preventing the Plaintiff from exercising his rights and privileges as a real estate salesman and to interfere with his business expectations arising therefrom and for the further purpose of forcing the Plaintiff, out of the Corporation, in which Plaintiff was a Shareholder and employee, and to deprive him of the rights and benefits from the Franchise Agreement entered into with Re/Max of Missouri.

Plaintiff points to additional evidence which he claims resulted in the amendment of his pleadings on the issue of lack of justification. He emphasizes that Defendants, being four of the five GJAL shareholders, met without him and agreed to fire him. He also highlights evidence that Defendants knew that if he was fired and his real estate license was returned to the Missouri Real Estate Commission, he could not participate in GJAL or benefit from the Re/Max franchise. Finally, according to Plaintiff's testimony, Defendants knew that he would be required to sell his stock to Defendants at book value, which would be only pennies on the dollar under the...