Tinucci v. R.V. Evans Co.

• Decision Date: 01 December 1998
• Docket Number: No. 74112,74112
• Citation: 989 S.W.2d 181
• Parties: H. Rick TINUCCI, Plaintiff/Respondent, v. R.V. EVANS COMPANY, Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 181

989 S.W.2d 181

H. Rick TINUCCI, Plaintiff/Respondent, v. R.V. EVANS COMPANY, Defendant/Appellant.

No. 74112.

Missouri Court of Appeals,

Eastern District,

Division Five.

Dec. 1, 1998.

Rehearing Denied March 4, 1999.

Edward T. Graham, Jr., James O. Beavers, Taylorville, for appellant.

Jeffery T. McPherson, St. Louis, for respondent.

ROBERT E. CRIST, Senior Judge.

Defendant R.V. Evans Company (Evans) appeals from the trial court's grant of summary judgment in favor of the plaintiff H. Rick Tinucci in his petition in equity for specific performance of a settlement agreement between Tinucci and Evans.

Initially, we address Tinucci's motion to dismiss the appeal and Evans's motion to amend its brief, which were taken with the case. Tinucci complains that Evans's points relied on fail to conform to Rule 84.04(d). In response, Evans proposes to amend its brief, contending the correct point relied on was inadvertently omitted. While this court does not condone violations of Rule 84.04, we nonetheless grant Evans's motion to amend its brief. The facts of the case are simple and the point in contention is clear to this court. Further, Tinucci was never prejudiced by Evans's original failure because he clearly understood the disputed question of law and aptly responded to it. See, Jos. A. Bank Clothiers, Inc. v. Brodsky, 950 S.W.2d 297, 302 (Mo.App. E.D.1997). Despite Evans's inadequacy, we deny Tinucci's motion to dismiss and grant Evans's motion to amend its brief to reflect its proposed amendment as outlined in its motion.

Evans contends on appeal that the trial court erred in granting summary judgment for Tinucci because there was no valid settlement between them. The standard of appellate review on appeal of a summary judgment is essentially de novo and the propriety of summary judgment is a matter of law. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). However, we review the record in the light most favorable to the party against whom judgment was entered and accord the non-movant the benefit of all reasonable inferences from the record. Id. Summary judgment is permissible where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(3); Rice v. Hodapp, 919 S.W.2d 240, 243 (Mo. banc 1996).

Using this standard, the record reveals the following facts, which are largely undisputed. Evans is an Illinois company doing business in Missouri in the packaging business. In early 1997, Evans hired Tinucci as General Manager of its St. Louis office. At that time, Evans and Tinucci entered into a written employment agreement providing a term of employment from February 1, 1997 to December 31, 1998. The agreement provided that Evans could terminate Tinucci's employment for good cause arising out of misconduct directly related to his employment and affecting Evans's business. It further provided that all disputes shall be submitted to binding arbitration.

On June 6, 1997, Evans fired Tinucci. On June 13, 1997, Evans sent Tinucci a letter containing a draft of a mutual release for his review. In the event Tinucci signed the release, Evans offered to pay him one month's pay plus three weeks' vacation pay ($9,166.67 less the usual withholding). The president of Evans, Richard V. Evans, Jr., had already signed the mutual release. On June 23, 1997, Tinucci sent a letter to Evans rejecting the June 13 proposal and making a counteroffer. He argued that his termination violated the employment contract.

On July 7, 1997, Evans sent another letter to Tinucci rejecting his counteroffer. The letter stated:

R.V. Evans company has declined your client's counteroffer following an intensive review of the facts and circumstances. Enclosed is a partial list of items which summarizes what we believe clearly constitutes misconduct directly related to Mr. Tinucci's employment and affecting R.V. Evans Company business efforts in the St. Louis area. We are able to produce numerous witnesses and documents to support these allegations.

The decision to terminate Mr. Tinucci's employment was made following numerous efforts to get Mr. Tinucci to do his job, i.e., manage the company operations. We interviewed several employees and acquaintances and can prove the allegations set forth in the enclosed handwritten summary.

I suggest that we submit this matter to arbitration as our Agreement with Mr. Tinucci provides in the absence of settlement as proposed.

Nothing further was heard from either party until September 30, 1997. At that time, Tinucci wrote to Evans and stated that he had decided to accept Evans's offer to settle the matter pursuant to the terms as set forth in the June 13 letter. Tinucci enclosed a signed copy of the mutual release and requested his final check of $9,166.67 less the usual withholding. On October 24, 1997, Evans responded it was not willing to reinstate the June 13 offer, which it contended had been rejected by Tinucci's counteroffer of June 23. Evans indicated several additional items...