Schnucks Twenty-Five, Inc. v. Bettendorf

• Decision Date: 30 October 1979
• Docket Number: INC,TWENTY-FIV,No. 40392,40392
• Citation: 595 S.W.2d 279
• Parties: SCHNUCKS, a corporation, Plaintiff-Respondent, v. Joseph BETTENDORF and Jay Bee Stores, Inc., a corporation, Defendants- Appellants.
• Court: Missouri Court of Appeals

Page 279

595 S.W.2d 279

SCHNUCKS TWENTY-FIVE, INC., a corporation, Plaintiff-Respondent, v. Joseph BETTENDORF and Jay Bee Stores, Inc., a corporation Defendants- Appellants.

No. 40392.

Missouri Court of Appeals, Eastern District, Division Four.

Oct. 30, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 15, 1980.

Application to Transfer Denied April 8, 1980.

Henry Fredericks, Stuart J. Radloff, Clayton, for defendants-appellants.

Mark R. Gale, Jerry D. Perryman, St. Louis, for plaintiff-respondent.

DOWD, Presiding Judge.

This is a case involving the construction of a covenant not to compete.

Appellants, Joseph Bettendorf and Jay Bee Stores, Inc. appeal from a judgment rendered by the Circuit Court of St. Louis County, favorable to respondent, Schnucks Twenty-Five, Inc. The action was instituted by the latter on November 7, 1975 when a petition for a temporary injunction was filed. The petition, which was amended to request a temporary restraining order and damages in addition to the desired injunctive relief, was filed on June 28, 1976.

Count I of the amended petition alleged that appellants' use of the name "Bettendorf" in connection with the grocery business within a 200 mile radius of St. Louis amounted to an appropriation of a property right belonging to respondent; that appellants had refused respondent's requests to discontinue use of the tradename; and that use of the name "Bettendorf" in the food business in the particular area described, caused irreparable injury to the respondent and its rights. Respondent prayed that appellants permanently be enjoined from using or advertising the name "Bettendorf" in connection with the manufacturing, distributing, or marketing of food items within a 200 mile radius of St. Louis. In Count II, respondent prayed for actual damages as well as punitive damages of $500,000 for conversion of respondent's property rights. In Count III, respondent prayed for actual damages and punitive damages of $500,000 for tortious interference with respondent's contract rights. In Count IV, which was filed August 26, 1977, respondent sought a declaratory judgment that appellants' use of the name "Jay Bee" or "JB" in advertising or identification was equivalent to the use of the name "Bettendorf". It contained the prayer that appellants be enjoined from further use of "phonetic facsimiles" of Bettendorf in connection with the grocery business in the greater St. Louis area.

The property right which Schnucks brought this action to defend is one which Schnucks acquired in its purchase of the assets of Allied Supermarkets, Inc. in September 1970. The latter, formerly ACF-Wrigley Stores, had purchased the stock of the Bettendorf grocery business pursuant to a contract executed January 15, 1958. Prior to the 1958 purchase, the Bettendorf name was well known in the grocery business in the metropolitan St. Louis area. By 1970, Allied operated 30 grocery stores bearing the name "Bettendorf". The trial court found that Allied had control of the "largest grocery store operation in the St. Louis metropolitan area."

The stock purchase agreement contained, inter alia, the following covenants:

"7. Covenants of the Seller

(L) The Seller will not directly or indirectly engage in the wholesale or retail food business within a radius of 200 miles of St. Louis, Missouri, for a period of ten years after the Closing Date; and will not at any time after the Closing Date directly or indirectly engage in such business or any business involving the manufacture distribution or sale of food products within said area under the name Bettendorf, or any combination thereof."

In 1970, Allied sold the assets of 25 of its 30 St. Louis grocery stores to respondent. In an assignment dated October 12, 1970, Allied conveyed "all its rights, title and interest in and to the Bettendorf name, including, but not limited to its rights pursuant to paragraph 7(L) of the January, 1958 contract."

Following a trial to the court, relief was granted respondent on each count. ¹ On Count I, appellants were permanently enjoined from using the names "Bettendorf", "Jay Bee", "JB" or any "combination thereof" in connection with the food industry within a 200 mile radius of St. Louis. On Counts II and III, appellants were ordered to pay respondent a total sum of $1.00 in actual damages. In Count IV the court reiterated the relief granted on Count I, and enjoined appellants from using the name "Jay Bee" apart from the context of its full corporated name: "Jay Bee Stores, Inc.".

Appellants contend that the trial court's judgment was erroneous in seven respects.

In their first assignment of error, appellants allege that the trial court erred in admitting into evidence a copy of a thermofax copy of the 1958 stock purchase agreement in violation of the best evidence rule.

The record reveals that neither party was able to locate an executed copy of the 1958 contract. A corporate officer of Allied Supermarkets, Inc. (ACF-Wrigley) was also unable to locate a copy of the contract. Respondent introduced a letter, dated January 14, 1958, signed by appellant, Joseph Bettendorf, in which it was stated that three copies of the executed contract were entrusted to Mr. Barksdale's possession. In hopes of locating the particular material, respondent twice sought to question Mr. Barksdale, the attorney who represented appellants in the drafting of the 1958 agreement. Such questioning was not effectuated because respondent's two subpoenaes were quashed on account of Mr. Barksdale's ill health.

Respondent also deposed Mr. James Deer, a New York lawyer, who represented Allied in the 1958 stock purchase. Mr. Deer stated that he was present when appellant, Joseph Bettendorf executed the three copies of the 1958 agreement. All three copies were deposited with Mr. Barksdale. Mr. Deer noted the names of those who had executed and notarized the agreement on his thermofax copy of the unexecuted agreement. When filing the requisite SEC forms, Mr. Deer had his copy of the contract retyped because of its poor visual quality. At the time he was deposed, Mr. Deer no longer had a copy of the agreement. When his deposition was taken, Mr. Deer identified respondent's exhibits of the SEC 8-K form and the SEC's reproduction as a copy of the 1958 agreement.

The best evidence rule does not preclude the introduction of secondary evidence; it merely embodies the law's preference of the best evidence capable of production. Aviation Enterprises, Inc. v. Cline, 395 S.W.2d 306, 308 (Mo.App.1965). A court may permit the introduction of secondary evidence if the offering party demonstrates that the primary evidence is "lost or destroyed, is outside the jurisdiction, is in the possession or control of an adversary, or is otherwise unavailable or inaccessible to him, or is voluminous or complicated." 29 Am.Jur.2d, Evidence, § 459 (1967). An offer of secondary evidence need not prove the unavailability or nonexistence of the primary evidence "beyond the possibility of mistake." Western Inc. v. United States, 234 F.2d 211, 213 (8th Cir. 1956).

Both parties were unsuccessful in locating a copy of the contract during the discovery stage. At the trial level, respondent demonstrated that they diligently had exhausted all avenues in an attempt to produce the executed 1958 contract. Parties to the original agreement were contacted, and discovered to be unable to present a copy of it. The attorneys for both parties to the agreement were contacted, and the one who was capable of responding, was unable to produce a copy of the contract. The trial court did not err in finding that the respondent established that the signed copy of the original contract was unavailable.

In the second prong of their first assignment of error, appellants contend that respondent failed to establish the proper predicate for the introduction of the SEC document as secondary evidence.

We must note at the outset that a trial court possesses wide discretion in its determination of the sufficiency of a foundation for the introduction of secondary evidence. Western, supra at 213.

Respondent gave appellants the requisite notice of its intent to introduce secondary evidence, and the court found that the unavailability of the primary evidence had been established.

Before identifying the SEC copy of the 1958 contract, Mr. Deer testified in his deposition that he had participated in the drafting of the original agreement. He further stated that Mr. Barksdale had taken possession of the three copies "pursuant to an escrow understanding." As previously stated, Mr. Deer's copy was retyped for governmental filing purposes. Following his examination of the respondent's SEC form exhibit, Mr. Deer stated that it was a copy of the contract which appellant, Joseph Bettendorf had signed in his presence in 1958. Mr. Deer also testified that he no longer represented ACF-Wrigley. He personally searched his files in an attempt to locate a copy of the contract. He also stated that his law firm had a policy of disposing of noncurrent file material. We cannot say that the trial court abused its discretion in its admission of the secondary evidence.

In the third prong of their first assignment of error appellants contend the trial court erred in admitting into evidence certain statements and letters authorized by the appellants which were intended to prove the contents of the 1958 agreement. At the heart of this contention is the allegation that the admission of such parol evidence was improper because there existed better secondary evidence of the existence of the contract. Appellant, Joseph Bettendorf, did not specify, however, which of his statements had been admitted erroneously. The issue, therefore, has not been preserved for our review. Thummel v. King, 570 S.W.2d 679, 688 (Mo. banc 1978). Point one is ruled against the appellants.

In their second and fifth assignments of error, appellants...