Southwestern Bell Telephone Co. v. Buie, Nos. 53455

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKELLY; SMITH
Citation758 S.W.2d 157
Docket Number53459,Nos. 53455
Decision Date16 August 1988
PartiesSOUTHWESTERN BELL TELEPHONE COMPANY, Respondent/Cross-Appellant, v. Richard BUIE, individually and d/b/a American Audio Center, Appellant/Cross-Respondent.

Page 157

758 S.W.2d 157
SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent/Cross-Appellant,
v.
Richard BUIE, individually and d/b/a American Audio Center,
Appellant/Cross-Respondent.
Nos. 53455, 53459.
Missouri Court of Appeals,
Eastern District,
Division Three.
Aug. 16, 1988.
Motion for Rehearing and/or Transfer to Supreme Court Denied
Sept. 12, 1988.
Application to Transfer Denied Oct. 18, 1988.

Page 159

Richard B. Blanke, University City, for appellant/cross-respondent.

James A. Daugherty, St. Louis, for respondent/cross-appellant.

KELLY, Judge.

This is an action for breach of contract brought by cross-appellant Southwestern Bell Telephone Co. against cross-respondent Richard Buie, for the alleged failure to pay for a Yellow Pages Telephone Directory advertisement. Buie appeals from the trial court's dismissal of counts II and IV of Buie's four count amended counterclaim.

This case is before us a second time following our remand in the original case of Southwestern Bell Telephone Co. v. Buie, 689 S.W.2d 848 (Mo.App.1985). In the original case, Southwestern Bell sued Buie for damages for a breach of a Yellow Page advertising contract. Buie counterclaimed in five counts, two compulsory (Counts I and II) and three permissive (Counts III, IV and V). Buie alleged intentional misrepresentation in Count I and breach of the alleged advertising contract in Count II. Buie, as an employee of Southwestern Bell, brought three additional counts by permissive counterclaim which alleged breach of a collective bargaining agreement in Count III, prima facie tort in Count IV relating to the acts in Count III, and prima facie tort for injury suffered by Buie's wife in Count V.

Buie had been suspended for nine days without pay and charged back $11,800.00 in commissions for allegedly aggregating customer advertising accounts improperly. After Buie's suspension and subsequent chargeback of commissions, he pursued the grievance procedures contained in the applicable Collective Bargaining Agreement between Southwestern Bell, the employer, and Communication Workers of America, Buie's union, and ultimately submitted the dispute to binding arbitration. The arbitration hearing was held on February 1, 1983, and on February 25, 1983, arbitrator Wilbur C. Bothwell upheld the suspension and denied Buie's grievance.

Southwestern Bell's motion to dismiss Counts III, IV and V of the counterclaim alleged that the trial court had no subject matter jurisdiction. Southwestern Bell's suggestions in support of its motion to dismiss stated: (1) Buie may not pursue litigation of the same dispute previously resolved by binding arbitration; (2) Buie did not pursue the grievance-arbitration procedures with respect to the chargeback of commissions within the time period specified in the Collective Bargaining Agreement; and (3) Buie's Count V is premised on plaintiff's treatment of Buie's wife, an employee of Southwestern Bell, and Buie is not authorized to act on behalf of his wife. The trial court sustained Southwestern Bell's motion without stating reasons.

On appeal to this court, we affirmed the trial court's order dismissing Count V and

Page 160

reversed the trial court's order dismissing Counts III and IV. The cause was remanded with directions to reinstate Counts III and IV.

The cause then proceeded to jury trial. After Buie presented his case-in-chief, the trial court sustained Southwestern Bell's motions for directed verdicts with respect to Counts II and IV of Buie's counterclaim. The court submitted Southwestern Bell's single count for breach of contract to the jury as Verdict A; Counts I and III of Buie's counterclaim were submitted as Verdicts B and C, respectively.

The jury returned Verdict A in favor of Southwestern Bell in the sum of $3,552.79. Verdict B was returned in favor of Buie for zero dollars actual damages and zero dollars punitive damages. Verdict C was returned in favor of Buie for $50,000.00. The court then entered judgment on the three verdicts.

Both parties filed timely post-trial motions. On April 2, 1987, Southwestern Bell filed its post-trial motions, including its motion for new trial on Verdict C, (Count III of Buie's counterclaim for breach of the Collective Bargaining Agreement). One day later, on April 3, 1987, Buie filed his post-trial motions, including his motion for new trial on Verdict A, Verdict B, and his claim for prima facie tort (Count IV).

On July 2, 1987, ninety-one days after Southwestern Bell filed its post-trial motion, the trial court purported to grant Southwestern Bell's motion for new trial on Count III of Buie's counterclaim (Verdict C). Also on July 2, 1987, the trial court denied Buie's post-trial motions.

Southwestern Bell argues that the trial court had no jurisdiction of Buie's claims because: (1) all claims are subject to the sole and exclusive provisions of federal law pursuant to the National Labor Relations Act; (2) all claims relating to the labor dispute are barred by the statute of limitations; and (3) all claims involving the labor dispute may not be pursued in litigation by Buie because the same dispute was previously resolved by binding arbitration.

Buie appeals from the trial court's rulings that: (1) directed a verdict against Buie on Count IV of his counterclaim; (2) purported to order Southwestern Bell a new trial on Count III of Buie's counterclaim; and (3) denied Buie's motion for new trial on Count I of his counterclaim. The two appeals are consolidated.

We affirm in part and reverse and remand in part.

Initially we address Southwestern Bell's claims alleging that the trial court had no jurisdiction for the reason they are subject to the sole and exclusive provisions of federal law pursuant to § 301 of the Labor Management Relations Act of 1947. We rely on the recent decision of Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988). In Lingle, on December 5, 1984, the petitioner notified her employer that she had been injured in the course of her employment and requested compensation for her medical expenses pursuant to the Illinois Workers' Compensation Act. On December 11, 1984, the employer discharged petitioner for filing a false worker's compensation claim. The union representing petitioner filed a grievance pursuant to a collective-bargaining agreement that protected employees from discharge except for "just" cause and that provided for arbitration of disputes between the employer and any employee concerning the effect or interpretation of the agreement. While arbitration was proceeding, petitioner filed a retaliatory discharge action in the Illinois state court, alleging that she had been discharged for exercising her rights under the Illinois worker's compensation laws. Respondent removed the suit to the Federal District Court on the basis of diversity of citizenship, and filed a motion to dismiss the case as pre-empted by § 301 of the Labor Management Relations Act of 1947. The court dismissed the complaint as pre-empted, concluding that the retaliatory-discharge claim was "inextricably intertwined" with the collective-bargaining provision prohibiting discharge without just cause, and that allowing the state-law action to proceed would undermine the arbitration procedures in the collective-bargaining

Page 161

contract. The Court of Appeals affirmed.

The United States Supreme Court reversed, stating, "In sum, we hold that an application of state law is pre-empted by § 301 of the Labor Relations Act of 1947 only if such application requires the interpretation of a collective-bargaining agreement." 486 U.S. at ----, 108 S.Ct. at 1885.

Applying Lingle to the case at bar, we find no interpretation of the Collective Bargaining Agreement by the trial court. Furthermore, the record discloses that the Collective Bargaining Agreement, although marked, was never received into evidence. Therefore, relying on Lingle, we hold that since the Collective Bargaining Agreement has not been interpreted by the trial court, an application of state law is not pre-empted by § 301 of the Labor Management Relations Act of 1947. Point denied.

Southwestern Bell next asserts that all claims relating to the labor dispute are barred by the statute of limitations under the National Labor Relations Act. In Southwestern Bell's reply to Buie's counterclaim, Southwestern Bell alleges as a defense to Count III of Buie's counterclaim, that "Plaintiff states as an affirmative defense, that defendant's counterclaim, Count III, is barred by the statute of limitations."

The statute of limitations is a defense which must be set forth affirmatively. Rule 55.08. A party desiring to avail himself of the statute of limitations must plead the particular statute upon which he relies. In Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257 (1914), this Court held that one seeking to take advantage of the statute of limitations "must plead the very provision on which he depends." 166 S.W. at 261. In Gibson v. Ransdell, 188 S.W.2d 35 (Mo.1945), where the bar of limitations was invoked but an inapplicable section was specified, it was held that the cause could not be ruled upon the basis of that statute of limitations, and reannounced the rule that "... the particular statute relied upon must be pointed out," 188 S.W.2d at 37, citing Knisely v. Leathe. Modine Manufacturing Company v. Carlock, 510 S.W.2d 462, 467 (Mo.1974); Tudor v. Tudor, 617 S.W.2d 610, 613 (Mo.App.1981). Accordingly, since Southwestern Bell failed to specifically plead the particular statute upon which it relied, we do not reach and do not decide this issue.

Southwestern Bell next argues that Buie may not pursue litigation of the same dispute previously resolved by binding arbitration. In light of our prior holding in the first appeal of this case, we conclude the issue was already...

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14 practice notes
  • Reed v. Rope, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • 30 Julio 1991
    ...as a bar to a claim, a party must set forth specifically the particular statute upon which he relies. Southwestern Bell Tel. Co. v. Buie, 758 S.W.2d 157, 161 (Mo.App.1988). Mrs. Reed contends that alternatively pleading a second statute of limitation as a bar is insufficient to rely on it a......
  • James v. James, No. 23360
    • United States
    • Court of Appeal of Missouri (US)
    • 12 Marzo 2001
    ...78.06; State ex rel. Division of Family Services v. Duncan, 782 S.W.2d 457, 461 (Mo.App. 1990); Southwestern Bell Telephone Co. V. Buie, 758 S.W.2d 157, 162-63 (Mo.App. 1988). Cases of [the Western] [D]istrict hold on the basis of section 452.360.1, RSMo 1986,[2] that the judgment of marria......
  • Tamko Asphalt Products, Inc. v. Arch Associates, No. 59780
    • United States
    • Court of Appeal of Missouri (US)
    • 4 Febrero 1992
    ...are not prejudiced by this technical faux pas in dates. The reasoning of the court in Southwestern Bell Telephone Co. v. Buie, 758 S.W.2d 157 (Mo.App.1988) aids Tamko's position in that Tamko has satisfactorily pleaded the particular statute upon which it relies. 758 S.W.2d at 161. Moreover......
  • Heintz v. Swimmer, No. 68304
    • United States
    • Court of Appeal of Missouri (US)
    • 12 Marzo 1996
    ...the specific statutory section relied upon. Reed v. Rope, 817 S.W.2d 503, 507 (Mo.App.1991); Southwestern Bell Telephone Co. v. Buie, 758 S.W.2d 157, 161 (Mo.App.1988), citing Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257, 261 (1914). Attorney's motion to dismiss stated: "The causes of ......
  • Request a trial to view additional results
14 cases
  • Reed v. Rope, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • 30 Julio 1991
    ...as a bar to a claim, a party must set forth specifically the particular statute upon which he relies. Southwestern Bell Tel. Co. v. Buie, 758 S.W.2d 157, 161 (Mo.App.1988). Mrs. Reed contends that alternatively pleading a second statute of limitation as a bar is insufficient to rely on it a......
  • James v. James, No. 23360
    • United States
    • Court of Appeal of Missouri (US)
    • 12 Marzo 2001
    ...78.06; State ex rel. Division of Family Services v. Duncan, 782 S.W.2d 457, 461 (Mo.App. 1990); Southwestern Bell Telephone Co. V. Buie, 758 S.W.2d 157, 162-63 (Mo.App. 1988). Cases of [the Western] [D]istrict hold on the basis of section 452.360.1, RSMo 1986,[2] that the judgment of marria......
  • Tamko Asphalt Products, Inc. v. Arch Associates, No. 59780
    • United States
    • Court of Appeal of Missouri (US)
    • 4 Febrero 1992
    ...are not prejudiced by this technical faux pas in dates. The reasoning of the court in Southwestern Bell Telephone Co. v. Buie, 758 S.W.2d 157 (Mo.App.1988) aids Tamko's position in that Tamko has satisfactorily pleaded the particular statute upon which it relies. 758 S.W.2d at 161. Moreover......
  • Heintz v. Swimmer, No. 68304
    • United States
    • Court of Appeal of Missouri (US)
    • 12 Marzo 1996
    ...the specific statutory section relied upon. Reed v. Rope, 817 S.W.2d 503, 507 (Mo.App.1991); Southwestern Bell Telephone Co. v. Buie, 758 S.W.2d 157, 161 (Mo.App.1988), citing Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257, 261 (1914). Attorney's motion to dismiss stated: "The causes of ......
  • Request a trial to view additional results

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