New Prime v. Professional Logistics Management Co.

Decision Date19 October 2000
Citation28 S.W.3d 898
Parties(Mo.App. S.D. 2000) New Prime, Inc., Appellant, v. Professional Logistics Management Co., Inc., Respondent. 23293
CourtMissouri Court of Appeals

Appeal From: The Circuit Court of Greene County, Hon. J. Miles Sweeney, Judge

Counsel for Appellant: David L. Wieland

Counsel for Respondent: Bryan O. Wade

Opinion Summary: None

Barney, C.J., and Montgomery, J., concur.

John C. Crow, Judge

Plaintiff, New Prime, Inc., a "motor carrier of general commodities," sued Defendant, Professional Logistics Management Co., Inc., for $33,672.89. Plaintiff's petition pled that at Defendant's request, Plaintiff transported goods and materials for Defendant, that Defendant agreed to pay Plaintiff's charges, and that Defendant failed to pay.

Defendant's answer pled, inter alia, that it is a "motor carrier broker of property," that Plaintiff "contracted with the shipper," not with Defendant, for transporting the shipper's goods, and that Defendant has "no liability to [Plaintiff]."

The trial court entered summary judgment for Defendant. Plaintiff appeals.

Defendant's motion for summary judgment and Plaintiff's response thereto established the facts set forth in the following paragraph.

From December 1995 through April 1996, Defendant arranged for Plaintiff to transport goods owned by Home Express, Inc. ("HEI") in interstate commerce. All of the bills of lading1 ex-cept one identify HEI as either "the shipper/consignor or the consignee, and most often as both." On February 7, 1996, HEI "filed a Chapter 11 proceeding in the United States Bankruptcy Court for the Northern District of California."

Defendant's motion for summary judgment averred Defendant, in arranging for Plaintiff to transport HEI's goods, acted "as either a transportation broker of property or as agent for a disclosed principal." Plaintiff denied that averment.

Defendant's motion for summary judgment averred the bills of lading constitute "the contract of carriage for the shipments"; consequently, the bills of lading provided Plaintiff "with ex-press notice that [HEI] as the shipper/consignor, consignee and/or beneficial owner of the shipments was the only party lia-ble for freight charges."

In support of the averments in the preceding paragraph, Defendant directed the trial court to an affidavit of its presi-dent, F. William Schuman, executed July 13, 1998 ("the first Schuman affidavit"). In that document, Schuman avowed Defendant acted as HEI's "agent and consultant" in arranging for the transportation on which Plaintiff's claim is based, that Defendant entered into no contract on its own with Plaintiff, and that HEI was "clearly disclosed on the bills of lading as the principal for whom [Defendant] was acting as agent." The first Schuman affidavit further declared that in the transportation industry, the bill of lading is the contract of carriage for the hauling of goods, that sixteen of the nineteen bills of lading constituting Plaintiff's claim identify HEI as the shipper, that two of the three remaining bills of lading identify HEI as the consignee, and that the only entity that agreed to pay for the freight was HEI. Additionally, the first Schuman affidavit proclaimed that carriers such as Plaintiff send their bills to Defendant, that Defendant analyzes the bills and requests funds from the shippers to pay the carriers, that Defendant never paid Plaintiff from Defendant's own funds, and that Defendant received no funds from HEI to pay the charges claimed in Plaintiff's petition.

Plaintiff denied Defendant's averment that the bills of lading constitute the contract of carriage. Instead, responded Plaintiff, the contract of carriage is a document entitled "Transportation Contract" dated November 2, 1994, attached to Plaintiff's response as Exhibit A. That document (the "Transpor-tation Contract") is signed by Schuman on behalf of Defendant and by Plaintiff's "Director of Traffic & Pricing."

The Transportation Contract provides, inter alia, that De-fendant shall pay Plaintiff "for all transportation services rendered to [Defendant] at the rates and charges set forth in Appendix A." No "Appendix A" is attached to the Transportation Contract.

Another document attached to Plaintiff's response to Defen-dant's motion for summary judgment is an affidavit of Plaintiff's "Credit Manager," Dale Hite, executed August 27, 1998 ("the Hite affidavit"). In that document, Hite avowed Plaintiff "looked solely to defendant for payment of shipping charges for cargo shipped at the request of defendant." The Hite affidavit further declared that at no time did HEI "engage plaintiff's services to carry goods," that Defendant "never informed plaintiff of a claimed agency relationship between defendant and [HEI] . . . until [HEI] filed for bankruptcy protection," and to Plaintiff's knowledge, it "is not listed as a creditor on any schedule of creditors currently on file in the [HEI] bankruptcy."

Rule 74.04, Missouri Rules of Civil Procedure, governs sum-mary judgments. The current version has remained unchanged since January 1, 1994, and was in force throughout the time this case was pending in the trial court. Paragraph (c)(3) of the rule reads, in pertinent part:

"Rulings on Motions for Summary Judgment. After the response has been filed or the time for filing the response has expired, whichever is earlier, the judg-ment sought shall be entered forthwith if a motion for summary judgment and response thereto show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . . "

This court finds nothing in the above rule allowing a party who has moved for summary judgment -- in this case, Defendant -- to file anything in reply to the non-moving party's response to the motion for summary judgment. Nonetheless, fifty-three days after Plaintiff filed its response to Defendant's motion for summary judgment, Defendant filed a "Reply to Plaintiff's Suggestions in Opposition to Defendant's Motion for Summary Judgment."

That document is henceforth referred to as "Defendant's Reply."2

Defendant's Reply sets forth a "Revised Statement of Facts."

One averment therein is that the Transportation Contract (Exhibit A attached to Plaintiff's response) "was specifically and exclu-sively in regard to shipments for DFS-Group Ltd.," and "does not apply to the [HEI] shipments at issue." That is evident, pled Defendant's Reply, from the "Appendix A" referred to in the Transportation Contract (but not attached thereto).

Attached to Defendant's Reply is a document designated "AP-PENDIX A." At its top, it displays the name "PRIME inc." It is dated December 20, 1994, and sets forth rates for hauling freight from points in California to points in sixteen other states, together with rates for hauling freight from points in those states to California. One provision in the document reads: "Rates apply for the Account of PROFESSIONAL LOGISTICS MANAGEMENT COMPANY INC."

Defendant's Reply pleads that all but three of the shipments at issue originated from HEI's facility in Mira Loma, California, destined for Omaha, Nebraska. Defendant's Reply points out that Nebraska is not listed as a "destination point" on Appendix A. Consequently, asserts Defendant's Reply, Appendix A demonstrates the Transportation Contract does not apply to Plaintiff's car-riage of HEI's goods.

Another document attached to Defendant's Reply is an affida-vit of Schuman executed October 15, 1998 ("the second Schuman affidavit"). In that document, Schuman avowed Sheila Cunha, an "Account Manager" employed by Defendant, was responsible for the HEI account, that on October 14, 1998 (the day before the second Schuman affidavit) he -- Schuman -- conferred with Ms. Cunha, that she told him she contacted one James Wright, Plaintiff's sales and marketing manager, around December 1995 about shipments from HEI's warehouse in Mira Loma, California, to one of its retail stores in Omaha, Nebraska, that she told Wright Defendant "was acting on behalf of [HEI]," and that she and Wright signed a contract January 11, 1996, regarding the HEI shipments.

Another document attached to Defendant's Reply is the Janu-ary 11, 1996, contract referred to in the second Schuman affida-vit. That contract (the "1996 contract") lists shipping rates from Mira Loma, California, to seven destinations, one of which is Omaha, Nebraska. One provision in the 1996 contract reads: "Regardless of what document(s) may be used in conjunction with transportation of any Cargo, the Uniform Straight Bill of Lading and it's [sic] Rules, Contract Terms and Conditions will be deemed to apply."

Ten months after Defendant filed Defendant's Reply, the trial court informed counsel for the parties by letter:

"I have become convinced that the November 2, 1994 Contract which Plaintiff relies on applies to the DFS-Group, Ltd. rather than [HEI]. In view of that, I believe that Defendant's Motion for Summary Judgment should be sustained . . . ."

The trial court subsequently entered judgment consistent with that conclusion. The judgment states, inter alia:

"[Plaintiff] contends . . . that the shipments at issue were not `[HEI] shipments' but were transported for [Defendant] pursuant to a Transportation Contract dated November 2, 1994, between the parties. This court finds that the argument of [Plaintiff] and affidavit in support of such contention is not credible. The November 2, 1994 contract applied only to shipments for a company called DFS-Group, Ltd., and the parties separately agreed that the [HEI] shipments would be governed by the rules, contract terms and conditions of the Uniform Bill of Lading for each shipment at issue here.

. . . .

The bills of lading establish that [HEI] was responsible for payment of freight charges and not [Defendant].

As [Defendant] neither collected the freight charges from [HEI] nor clearly assumed liability by contract or conduct,...

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