E.A.U., Inc. v. R. Webbe Corp.
| Decision Date | 31 July 1990 |
| Docket Number | Nos. 54910,54925,s. 54910 |
| Citation | 794 S.W.2d 679 |
| Parties | E.A.U., INC., Plaintiff-Respondent, v. R. WEBBE CORPORATION, and American Insurance Company, Defendants-Appellants. |
| Court | Missouri Court of Appeals |
Kenneth V. Byrne, St. Louis, for defendants-appellants.
Robert S. Adler, St. Louis, for plaintiff-respondent.
This is a breach of contract action. Plaintiff, E.A.U., Inc. (EAU) is a supplier. Defendant, R. Webbe Corp. (Webbe), is a general contractor. EAU agreed to sell to Webbe parts and materials for a greenhouse system to be installed in the now newly constructed Hazelwood City Hall--Police Complex. EAU sued Webbe for breach of contract, alleging Webbe refused to pay for the materials provided by EAU.
EAU also sued another defendant, American Insurance Company (American), a surety which issued a labor and materials payment bond covering Webbe's general contract for the Hazelwood project. The claim was based upon American's alleged liability for Webbe's contractual debt to EAU.
The trial took place in St. Louis County. The trial court entered judgment on a jury verdict for EAU and against both Webbe and American. Webbe and American appeal. We have consolidated these appeals. We reverse and remand.
On appeal, Webbe argues, among other things, that EAU failed to make a submissible case. As we understand Webbe's brief, it bases this argument on the assumption that the contract in issue consists solely of its purchase order to EAU.
However, in its petition, EAU alleges a contract between it and Webbe based upon the purchase order from Webbe with one alleged modification of that order. But, from the partial record before us, it appears that EAU tried its claim as if the contract consisted of the purchase order with two modifications, rather than one modification. And, on appeal, as we understand its brief, EAU assumes the contract consists of the purchase order and two modifications.
If the contract between EAU and Webbe is the purchase order alone or with one modification, EAU failed to make a submissible case. If the contract is the purchase order with two modifications, EAU made a submissible case.
The contract EAU chose to submit to the jury would normally be reflected in its proffered verdict directing instruction. The trial transcript before us shows EAU proffered a verdict directing instruction which, apparently, referred to some modification of the purchase order as the contract. This instruction was refused by the trial court and was not made part of the original record on appeal.
We ordered the parties to file copies of all instructions--given, proffered and refused--certified by the clerk of the court or stipulated to by the parties. Apparently, the originals of these instructions are missing, and the parties "were unable to reconstruct" the "proffered but refused" instructions. They did stipulate that EAU's verdict directing instruction refused by the court "concerned a modification to the contract". This, obviously, does not tell us the specific "modification" proffered by EAU. On this record, for the reasons following, we reverse and remand this cause.
Prior to our order, both Webbe and EAU filed motions to supplement the record. Webbe seeks to supplement the legal file with the jury instructions and with the case file from earlier litigation between EAU and Webbe in the St. Louis City Circuit Court. As required by Rule 84.04(e), the instructions to which Webbe objects are set forth in full in the argument portion of Webbe's brief and are the same instructions the parties have now stipulated to. EAU proffered the case file from the City Circuit Court as an exhibit at trial. We therefore grant Webbe's motion.
EAU seeks to have certain correspondence, as well as an interoffice memorandum by counsel for EAU, made part of the record. We deny EAU's motion with respect to the interoffice memorandum. There is no indication this document was before the trial court. EAU's motion is granted, however, with respect to the three EAU offered two of these letters, one dated September 30, 1985, from counsel for Webbe to counsel for EAU and another dated March 29, 1985, from counsel for Webbe to EAU, as exhibits at trial. Webbe did not object to the admission of either exhibit. Webbe does not object to the inclusion of the remaining letter, dated May 30, 1985, from counsel for EAU to counsel for Webbe, on the grounds that it was not before the trial court. This is understandable since the May 30 letter from counsel for EAU to counsel for Webbe concerns the same subject as the admitted September 30 letter from counsel for Webbe to counsel for EAU: the parties' agreement to try their entire dispute in the St. Louis County Circuit Court. Both the May 30 letter from counsel for EAU to counsel for Webbe and the September 30 response from counsel for Webbe are reproduced in the attached Appendix.
letters in its proposed supplemental legal file.
Webbe and American argue that the trial court lacked jurisdiction over EAU's present action, which EAU filed in the Circuit Court for St. Louis County. Prior to the commencement of the present suit, Webbe had brought a replevin action in the St. Louis City Circuit Court, seeking possession of materials which EAU had ordered for the Hazelwood project. EAU had filed a counterclaim against Webbe for breach of contract in the City case. Webbe and American argue that the action which EAU subsequently brought in the St. Louis County Court was barred because it was a compulsory counterclaim in the city case and because the pendency of the counterclaim which EAU actually filed in the City suit required abatement of EAU's claim in the County Circuit Court. We disagree.
The previously filed City litigation between EAU and Webbe did not affect the jurisdiction of the County Circuit Court over the action which EAU subsequently filed there because EAU and Webbe had agreed to a voluntary mutual dismissal of all claims in the City case. EAU filed its petition in the County Circuit Court on April 8, 1985. The following month, counsel for EAU wrote a letter to counsel for Webbe confirming the parties' agreement that:
[Webbe] would take no further action to obtain a default judgment against E.A.U., Inc. [in the city] cause without prior notice to [EAU counsel's] firm. In the interim you [counsel for Webbe] will review the file to determine whether my [EAU's counsel's] suggestion of a mutual dismissal without prejudice by all parties of the cause of action pending in the City of St. Louis would be an acceptable method of proceeding in this matter.
In September 1985, counsel for Webbe wrote counsel for EAU to express his agreement "that the most expedient manner for handling this entire dispute would be in the other case which is currently pending in St. Louis County." We interpret this letter as Webbe's agreement to EAU's suggestion of a mutual dismissal without prejudice of the City case.
Although the parties, evidently, never formally dismissed their suit in the City Circuit Court, we treat the parties' agreement to a voluntary mutual dismissal without prejudice of their respective claims in the City case as if it had actually been performed. To do otherwise would permit counsel for Webbe, an officer of the court, to use the process of this Court to avoid compliance with his agreement with counsel for EAU, also an officer of the court.
Petitions and counterclaims may be voluntarily dismissed without prejudice and without leave at any time prior to the introduction of evidence. Rules 67.01; 67.04. After a voluntary dismissal of either a petition or a counterclaim, nothing remains before the court regarding either the petition or the counterclaim. McHenry v. Brown, 388 S.W.2d 797, 807 (Mo.1965); Samland v. J. White Transportation, Co., 675 S.W.2d 92, 96 (Mo.App.1984). "The legal situation [following voluntary dismissal] is as though the suit had never been brought." Samland, 675 S.W.2d at 96. Having found the parties' agreement to mutual dismissal without prejudice of their Moreover, even if EAU and Webbe had not agreed to a mutual dismissal of their claims in the City case, it is extremely doubtful that either compulsory counterclaim or abatement principles would have barred EAU's action in the County Circuit Court.
respective claims in the City case to be such a dismissal, we, in turn, find the proceedings between these parties in the City Circuit Court as a nullity, with no effect upon the jurisdiction of the County Circuit Court.
"An implicit requisite to the compulsory counterclaim rule [55.32(a) 1] ... is that the claim to be asserted as a counterclaim be 'matured' at the time of serving the pleading." Knight v. M.H. Siegfried Real Estate, Inc., 647 S.W.2d 811, 813 (Mo.App.1982). From the record, it appears that EAU's counterclaim against Webbe in the City case had not matured by the time that process was served on EAU.
In addition, the prior pending action doctrine, one form of abatement, provides that " 'where two actions involving the same subject matter between the same parties are brought in courts of concurrent jurisdiction, the court in which service of process is first obtained acquires exclusive jurisdiction and may dispose of the entire controversy without interference from the other.' " State ex rel. J.E. Dunn, Jr. & Assoc., Inc. v. Schoenlaub, 668 S.W.2d 72, 74 (Mo. banc 1984). However, an abatement defense is waived unless pleaded in the defendant's answer: the defense may not be raised by way of subsequent motion. State ex rel. Kansas City v. Harris, 357 Mo. 1166, 212 S.W.2d 733, 735 (1948); State ex rel. Dunn v. Cowan, 231 Mo.App. 717, ...
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