Stoffel v. Mayfair-Lennox Hotels, Inc., MAYFAIR-LENNOX

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: PER CURIAM; RUDDY, P. J., ANDERSON, J., and FRANK D. CONNETT, Jr.
• Citation: 387 S.W.2d 188
• Parties: Robert J. STOFFEL, (Plaintiff) Appellant, v.HOTELS, INC., a Corporation, (Defendant) Respondent.
• Docket Number: No. 31851,MAYFAIR-LENNOX
• Decision Date: 16 February 1965

Page 188

387 S.W.2d 188 Robert J. STOFFEL, (Plaintiff) Appellant,
v.
MAYFAIR-LENNOX HOTELS, INC., a Corporation, (Defendant) Respondent. No. 31851. St. Louis Court of Appeals, Missouri. Feb. 16, 1965.

Page 189

Rader & Love, Chester A. Love, Clayton, for (plaintiff) appellant.

Grand, Peper & Martin, Robert O. Hetlage, St. Louis, for (defendant) respondent.

DOERNER, Commissioner.

Plaintiff, a landscape architect, brought this action to recover the sum of $2500 for services claimed to have been rendered to the defendant. Defendant filed a motion for summary judgment, which the trial court sustained, and plaintiff appealed.

Plaintiff's first amended petition contained two counts. In the interest of clarity we will consider separately the appeal as it relates to each count. In Count I plaintiff alleged that defendant was the owner of a described tract of land in St. Louis County whereon it was building a hotel facility; that in that connection defendant employed Clifford R. Fields and Associates as architects 'to design the said hotel building and do such other related work as is connected therewith'; that the Fields' firm '* * * as agents, servants and employees' of the

Page 190

defendant '* * * did engage the services of the plaintiff for the purpose of designing and laying out a certain landscape plan in connection with the construction of the said hotel facility'; that pursuant thereto plaintiff rendered certain services, which were described at length; that 'the plaintiff rendered these services to the defendant between the 1st day of March, 1963, and the 19th day of April, 1963'; and that the reasonable value of plaintiff's services were $2500, for which demand had been made and payment refused. The prayer was for judgment in that sum, together with costs.

So far as the record before us shows, the only pleading filed by defendant was its motion for summary judgment.

As pointed out in Cooper v. Finke, Mo., 376 S.W.2d 225, 229, a summary judgment, as its name indicates, is an extreme and drastic remedy and great care should be exercised in utilizing the procedure. It may be rendered when, but only when, the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of a material fact and that the moving party is entitled to a judgment as a matter of law. Civil Rule 17.04(c), V.A.M.R.; Swink v. Swink, Mo., 367 S.W.2d 575; Brown v. Prudential Insurance Co. of America, Mo.App., 375 S.W.2d 623. The burden of establishing the nonexistence of any genuine issue of a material fact is on the moving party. Walling v. Fairmont Creamery Co., 8 Cir., 139 F.2d 318; Sprague v. Vogt, 8th Cir., 150 F.2d 795. The proof upon which he relies must be 'unassailable proof.' Civil Rule 74.04(h), V.A.M.R.; Cooper v. Finke, supra; Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458. And where, as here, plaintiff appeals from a judgment summarily granted defendant we must view the record in the light most favorable to plaintiff and give him the benefit of every doubt. Cooper v. Finke, supra; Poller v. Columbia Broadcasting System, Inc., supra; Walling v. Fairmont Creamery Co., supra.

Prior to the hearing on the motion plaintiff's deposition had been taken by defendant and was on file. Defendant maintains that the summary judgment should be affirmed because plaintiff's testimony therein conclusively established as a matter of law that any services performed by plaintiff were undertaken by him as a commission salesman for Westover Farms Landscaping Co., in the hope of selling planing services and material, and not as a landscape architect seeking direct compensation. In his deposition plaintiff described himself as a self-employed landscape architect, with his office in the home of his parents, where he resided. He testified that except for one fee of $50, his entire income for the years 1961 to and including 1963 to date was derived from commissions paid by three nursery companies, principally the Westover Company, on nursery stock sold by such companies through his landscaping. As plaintiff put it, 'As I told you I am self-employed. I obtain the jobs myself, and when I see fit to whom I allocate various contracts (sic). * * * I can entertain bids from other nurseries through my landscaping.' Of course, the important factor is not what plaintiff did in general, but what was done in this instance. On that score plaintiff testified that having learned that Clifford R. Fields and Associates was the architect for defendant's project he wrote a letter to that firm in July, 1962 '* * * requesting to be the landscape architect for the Mayfair-Lennox motel, Motor Hotel.' He could not recall the response he received other than that he was told to call Goldman in November. Plaintiff testified that in November, 1962, 'I called Mr. Goldman long distance in Mount Vernon and discussed the possibility of me being the landscape architect for the Mayfair-Lennox Motel, Motor hotel. He instructed me that he needed someone with my knowledge and that he would be willing to hire me as a landscape architect for a certain fee, and I agreed to this situation.' Regarding the amount of his compensation, plaintiff said that Goldman '* * * specified he would pay the running rate,' which

Page 191

plaintiff stated in another part of his deposition was $10 to $15 per hour.

To negate the effect of this testimony defendant points to another part of plaintiff's deposition in which he said that around the first week in March, 1963, about the same time plaintiff was told to start to work on the landscape plan, Goldman came to the Westover Company's office '* * * and stated rather...