Uhle v. Sachs Elec., 59891

• Decision Date: 02 June 1992
• Docket Number: No. 59891,59891
• Citation: 831 S.W.2d 774
• Parties: Fred UHLE, Plaintiff/Appellant, v. SACHS ELECTRIC, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 774

831 S.W.2d 774

Fred UHLE, Plaintiff/Appellant, v. SACHS ELECTRIC, Defendant/Respondent.

No. 59891.

Missouri Court of Appeals,

Eastern District,

Division Five.

June 2, 1992.

Claude Hanks, St. Louis, for plaintiff, appellant.

Russell F. Watters, Michael D. MaGuire, St. Louis, for defendant, respondent.

CARL R. GAERTNER, Judge.

Plaintiff, Fred Uhle, worked for defendant, Sachs Electric, for twenty-one years. His last position with Sachs was as Vice President of Sales and Estimating. In 1984, plaintiff was called to testify before a federal grand jury investigating bid-rigging. Plaintiff perjured himself before the grand jury, despite a grant of immunity from charges of bid-rigging. In 1986, plaintiff was convicted of perjury and sentenced to a term of imprisonment in a federal penitentiary.

At some time in 1986, plaintiff and defendant cannot agree on the date, plaintiff was discharged by defendant. On August 4, 1987, plaintiff requested a service letter from defendant pursuant to § 290.140 RSMo.1986. On September 10, 1987, defendant sent plaintiff a letter which claimed that defendant requested his service letter after the time allowed for in the statute. Nevertheless, in the same letter defendant gave plaintiff the information required by the statute: the nature of his service, the dates of his service, and the reasons for his discharge.

Thereafter, plaintiff filed a three-count suit in the Circuit Court of St. Louis County. Count I charged that defendant refused to issue a service letter. Count II charged that even if defendant's September 10 letter was considered a service letter, the letter failed to state the true reason for plaintiff's discharge. Count III charged defendant with fraud in that defendant made false representations that bid-rigging was legal and part of the normal course of defendant's business. Plaintiff alleged that defendant's misrepresentations thereby caused him to bid improperly and be subject to federal prosecution and imprisonment.

Defendant filed a motion for summary judgment on Counts I and II. Defendant argued that there was no genuine issue with regard to damages sustained by plaintiff since plaintiff had not been refused employment by the failure to produce a service letter. In opposition, plaintiff produced his own affidavit saying that three employers refused him employment because he did not have a service letter. The trial court granted defendant's motion for summary judgment on Counts I and II.

Later in the proceedings, defendant filed a motion for summary judgment on Count III. Defendant argued that a fraud action cannot be based upon a misrepresentation of law. For further support, defendant presented portions of plaintiff's deposition testimony showing that he knew that bid-rigging was illegal, that defendant's agents never told him it was legal, and that defendant's agents never told him to lie before the grand jury. The trial court granted defendant's motion for summary judgment.

Plaintiff appeals the grants of summary judgment. We affirm.

On appeal, defendant filed a motion to strike plaintiff's brief because of plaintiff's failure to make references to specific pages contained in the legal file and because of inadequacies in both the statement of facts and points relied on. By flirting with violations of the Rules, a party does little to help its case. We decline to strike plaintiffs brief, even though defendant's argument that plaintiff's brief violates Rules 84.04(c), (d), and (h) has merit. Despite its shortcomings, we are able to discern plaintiff's argument from the text of his brief.

In reviewing a motion for summary judgment, we must determine whether there is genuine issue of material fact requiring a trial and then whether the prevailing party was entitled to the judgment as a matter of law. Erickson v. Pulitzer Publishing Co., 797 S.W.2d 853, 857 (Mo.App.1990). We review the entire record in a light most favorable to the party against whom summary judgment is entered. Id. The judgment of the trial court will be sustained if the judgment is sustainable on any theory. Abbate v. Tortolano, 782 S.W.2d 810, 811-12 (Mo.App.1990).

Plaintiff's first argument is that the trial court erred in granting summary judgment on Counts I and II because a material question of fact exists as to whether defendants issued a service letter or, alternatively, whether the reason for plaintiff's discharge stated in the letter was true. We disagree.

Count I claimed defendant failed to issue a service letter. An employer fails to issue a service letter if the letter fails to address any of the requirements of § 290.140.1. Kincaid v. Pitney-Bowes, Inc., 750 S.W.2d 550, 554 (Mo.App.1988). Defendant's September 10 letter was mailed within forty-five days of plaintiff's request for a service letter. It stated the nature and character of the service rendered by plaintiff from 1965-1986 and set forth the cause for which plaintiff was discharged. Thus, the letter addressed all of the requirements of § 290.140.1 and the granting of summary judgment on Count I was appropriate. ¹ Similarly, summary judgment on Count II was proper as well. Count II claimed defendant's letter contained an untruthful reason for plaintiff's discharge. Although this issue remains in dispute, it does not constitute a bar to the granting of summary judgment. The truth or falsity of the reason stated for defendant's discharge is not a material issue because of the total absence of any evidence that plaintiff sustained any damage as a result of the service letter. Kaskowitz v. Commerce Magazine, Inc., 793 S.W.2d 628, 632 (Mo.App.1990). In order to recover damages based upon a service letter, a plaintiff must prove that he or she was refused or hindered in obtaining employment due to the absence or inadequacy of a service letter, that the position plaintiff was refused or hindered in obtaining was...