Smith v. Hammons

Decision Date03 January 2002
Docket NumberSD23472
Citation63 S.W.3d 320
PartiesArch Smith, Appellent, v. John Q. Hammons and John Q. Hammons Entertainment Company, Inc., Respondent. SD23472 Missouri Court of Appeals Southern District 0
CourtMissouri Court of Appeals

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

Counsel for Appellant: Robert Layton Desselle

Counsel for Respondent: Charles Britwood Cowherd

Opinion Summary: None

Smith, P.J., and Flanigan, Sr.J, concur.

Almon H. Maus, Senior Judge

By his petition in this action in Count I, Plaintiff Arch Smith sought to recover against Defendants John Q. Hammons and John Q. Hammons Entertainment, Inc., upon a verbal contract for Plaintiff to produce and perform in a magic show. By Count II, the Plaintiff sought to recover in quantum meruit for providing valuable expertise in the entertainment business and other valuable services to Defendants. The trial court granted Defendants' motion for summary judgment upon Count I. After a jury verdict upon Count II for the Defendants, the trial court entered final judgment against Plaintiff. Plaintiff appeals, asserting the trial court erred in entering the summary judgment upon Count I.

The judgment on Count II against the Plaintiff stands unassailed. He has had his day in court upon his allegations in quantum meruit and the evidence to support them. By this appeal, he asserts his right to recover under Count I upon his allegations of express contract, which were incorporated by reference in Count II. This sequence could raise an issue of whether or not that assertion of express contract is barred by the adverse judgment on Count II. However, the Defendants have not raised that issue and its resolution is not necessary for the determination of this appeal. This opinion should not be construed as authority upon that issue. Those interested may start their research with cases such as Boswell v. Amer. Ins. Co., 835 S.W.2d 454 (Mo. App. S.D. 1992); Steinberg v. Fleischer, 706 S.W.2d 901 (Mo. App. E.D. 1986); and McDowell v. Schuette, 610 S.W.2d 29 (Mo. App. E.D. 1980).

The following are the relevant allegations of Count I of the petition:

2. Plaintiff entered into a contract with Defendants John Q. Hammons and John Q. Hammons Entertainment, Inc., beginning on or about December 17, 1992, through approximately December 12, 1994.

. . .

5. That Defendant John Q. Hammons agreed to the following:

a. Arch Smith be paid $150,000 per year;

b. Living Quarters to be provided to Arch Smith;

c. Office Space plus expenses for offices to be provided to Arch Smith;

d. Arch Smith be provided an administrative assistant who would also be an employee of Defendant Hammons;

e. Arch Smith to have reasonable creative control over the illusions show;

f. Arch Smith be reimbursed for any expenses incurred while working on project for Defendant John Q. Hammons;

g. Arch Smith to have first option to buy any equipment or real estate associated with the show, such option to be left open ninety (90) days;

h. Arch Smith to negotiate at a later date, percentage on profit from show in the theater; and

i. Arch Smith to negotiate with Defendant Hammons a signing bonus at a later date.

6. Plaintiff Arch Smith promised to do the following:

a. Design, stage, direct, perform and star in magic and music show at a theater owned by Defendant John Q. Hammons;

b. Keep all plans for the show secret;

c. Refrain from publicly performing until the opening of the show;

d. Make all preparation to put the magic and music show together.7. Plaintiff performed all of the acts called for in such offer and did so to accept the offer by Hammons.

. . .

12. That on or about July 27, 1994, Defendant John Q. Hammons agreed to pay Plaintiff, operating under the show name of Arch Von Weston, five percent (5%) of all net profits in excess of one Million Dollars and less than $2.5 million; ten percent (10%) of the net profits in excess of $2.5 million; twelve and one-half percent (12-1/2) of the net profits in excess of $4 million and less than $5.5 million; and fifteen percent (15%) of all net profits in excess of $5.5 million.

13. Plaintiff and Defendant agreed in the event any legal proceedings were instituted as a result of a breach of the contract, the prevailing party in such proceeding shall be entitled to recover reasonable attorneys fees, paralegal fees, law clerk fees, and other legal expenses and costs from the non-prevailing party.

. . .

15. That Defendants John Q. Hammons and John Q. Hammons Entertainment Company, Inc. have breached their agreement in the following manner:

a. Despite due demand, Defendants have failed to pay Plaintiff $150,000 per year since January 1993;b. Defendants have failed to provide housing as promised to Plaintiff;

. . .

e. Defendants relieved Arch Smith of his duties and involvement in the project on or about December 12, 1994.

16. That as a result of the said breaches, Plaintiff has been damaged in the amount of $1,144,250.00, "plus any profits that Plaintiff should have shared with Defendants."

Wherefore, Plaintiff prays judgment in Count I of his cause of action against Defendants for $1,144,250.00, for his reasonable attorneys fees, prejudgment interest, costs and such further and additional relief as the Court may deem just and appropriate.

In Count II the Plaintiff incorporated the allegations of Count I and alleged that during December 17, 1992, through December 12, 1994, Plaintiff provided valuable services to Defendants, which were beneficial to Defendants. He prayed for judgment for a fair and reasonable amount, prejudgment interest, costs and other relief.

Defendants filed a "Motion and Suggestions for Summary Judgment" upon Count I. The Plaintiff filed his "Response to the Motion and Suggestions in Opposition." The trial court granted a summary judgment upon Count I in favor of the Defendants.

Thereafter a jury trial was had upon Count II. The jury returned a unanimous verdict for the Defendants. Final judgment upon the petition was then entered against Plaintiff. The Plaintiff's motion for a new trial and to reconsider the summary judgment was overruled. The case was submitted on the briefs.

By his brief to this court, the Plaintiff has limited the issues on appeal by stating only one point. "We are constrained by the rules to confine our efforts solely to the points briefed, the rules in this regard being applicable with equal force to court-tried cases as well as jury-tried matters." Kurtz v. Fischer, 600 S.W.2d 642, 645 (Mo. App. W.D. 1980) (citing Rule 84.04(d); Haase v. Richmond, 570 S.W.2d 341, 344 (Mo. App. 1978)). Thus limited, the only question for review on this appeal is the issue presented in Plaintiff's brief. Id.; see also In re Marriage of Ulmanis, 23 S.W.3d 814, 817 (Mo. App. S.D. 2000). Plaintiff's sole point on appeal is: "The trial court erred in granting partial summary judgment when the court determined that the contract was not divisible in that the non-agreed to terms were not essential to the contract."

Plaintiff first supports his point by lengthy recitations of the services he rendered in preparing a magic show. He also recites various actions and statements of Hammons that Plaintiff contends established a contract. Such recitations bear a source reference such as (T.R. 512). This is obviously a reference to the transcript of the testimony at the trial of Count II. He pointedly omits reference to the repeated testimony of Hammons that any obligation he might assume was upon the condition that Plaintiff perform by producing a magic show in which he was the star. The following is an example: "Never any doubt in Smith's mind or mine, he had to perform to be compensated. That was understood."

However, such recitations are not material to the determination of Plaintiff's point that the trial court erred in sustaining Defendants' motion for summary judgment upon Count I. The procedure to be followed and pleadings and evidence to be considered by a trial court in ruling upon such a motion are set forth in Rule 74.04, Missouri Rules of Civil Procedure (2001), and well-defined by decision.

This court holds the plain meaning of Rule 74.04(c)(3) . . . is that a trial court, in deciding whether to grant a motion for summary judgment, should consider only the motion and the response--the only pleadings authorized by Rule 74.04(c)(1) and (2)--together with the affidavits, admissions, deposition testimony and documents referred to in those pleadings.

New Prime, Inc. v. Prof'l Logistics Mgmt. Co., Inc., 28 S.W.3d 898, 904 (Mo. App. S.D. 2000). The transcript of the trial upon Count II was not before the trial court in considering the motion for summary judgment, nor is it before this court in considering the propriety of the summary judgment granted.

The trial court grants or denies motions for summary judgment on the basis of what is contained in the motions for summary judgment and the responses thereto. As an appellate court, we are confined to considering the same information that the trial court considered in rendering its decision on the motion for summary judgment.

Mothershead v. Greenbriar Country Club, Inc., 994 S.W.2d 80, 85 (Mo. App. E.D. 1999) (citations omitted).

The standard for determining whether or not a defendant's Motion for Summary Judgment should be granted is also well-established.

[A] "defending party" may establish a right to judgment by showing facts that negate any one of the elements facts of claimant's claim. If the movant meets this burden, the non-movant may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in Rule 74.04, shall set forth specific facts showing that there is a genuine issue for trial.

Koman v. Kroenke, 913 S.W.2d 108, 109 (Mo. App. E.D. 1995) (citing ITT Comm. Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04(e)).

By their Motion and Suggestions, the Defendants assert they were...

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