Union Elec. Co. v. Mansion House Center North Redevelopment Co.

• Decision Date: 14 May 1973
• Docket Number: No. 2,No. 56345,56345,2
• Citation: 494 S.W.2d 309
• Parties: UNION ELECTRIC COMPANY, a Missouri corporation, Plaintiff-Respondent, v. MANSION HOUSE CENTER NORTH REDEVELOPMENT COMPANY et al., Defendants- Appellants
• Court: Missouri Supreme Court

Page 309

494 S.W.2d 309

80 A.L.R.3d 396

UNION ELECTRIC COMPANY, a Missouri corporation, Plaintiff-Respondent, v. MANSION HOUSE CENTER NORTH REDEVELOPMENT COMPANY et al Defendants- Appellants.

No. 56345.

Supreme Court of Missouri, Division No. 2.

May 14, 1973.

William H. Ferrell, Francis L. Barkofske, Keefe, Schlafly, Griesedieck & Ferrell, St. Louis, for plaintiff-respondent Union Electric Co.

Lashly & Neun, Paul W. Lashly, Peter J. Wunderlich, St. Louis, for defendant-appellant Mansion House Center North Redevelopment Co. MORGAN, Presiding Judge.

Although this appeal stems from a rather novel background, it basically involves an effort by plaintiff to recover the amount allegedly owed by defendants for electric and steam energy provided to them by plaintiff. The trial court found for plaintiff. We affirm.

Plaintiff, Union Electric Company (hereinafter referred to as the Company), is in the business of supplying electric and steam service in the city of St. Louis. Defendants, Mansion House Center North Redevelopment Company, Mansion House Center Redevelopment Company and Mansion House Center South Redevelopment Company (hereinafter collectively referred to as the Consumer), are each limited partnerships which operate comparable apartment and commercial complexes seemingly as one project. Each complex consists of a twenty-eight (28) story apartment building and a three (3) story commercial building. The north and center units were completed during 1966 and the south unit during 1967.

Prior to construction, and over a period of several years, the Company and Consumer had considerable discussion, correspondence and meetings as to the merits of various energy systems. The objective was to determine which system would be the most efficient and economical, and also to project certain 'estimated' costs relative thereto upon which Consumer might arrange financing. Such negotiations were culminated by the parties agreeing to and executing certain contracts, to-wit: (1) 'Additional Facilities Agreement' on June 15, 1966, (2) 'Electric Service Agreement' on June 15, 1966, and (3) 'Steam Service Agreement' on January 14, 1967.

Consumer paid the charges submitted until November, 1968, when complaint was made to the Company that the billings exceeded the 'estimates.' By May of 1969, the statements unpaid amounted to $174,573. During the next month, the Company and Consumer entered into what was designated as an 'Escrow Agreement' calling for the unpaid charges and all future bills to be paid to the Mercantile Trust Company until the dispute was settled. It is agreed that Mercantile is not concerned financially, and that it is named as a party defendant solely as custodian of the disputed funds, which now amount to approximately one million dollars. By the agreement, the parties agreed that one or the other would initiate a declaratory judgment action asking the court to declare the rights of the parties.

The petition filed by the Company detailed the background, now noted, and premised its request for recovery on the following: 'Union Electric asserts and alleges that the bills it has rendered and is presently rendering for electric and steam service and related facilities are in every respect accurate and in accordance with the agreements * * * (the electric, steam and facilities contracts heretofore mentioned) * * * and the applicable rates, rules and regulations on file with, and approved by, the Missouri Public Service Commission.'

In its answer, Consumer alleges, generally, '. . . that the bills which plaintiff has rendered and is presently rendering for use of its facilities or for electric and steam service are not accurate, just or correct and further are not in accordance with the estimates furnished these defendants by plaintiff . . ..'

Consumer also filed a counterclaim consisting of eleven counts wherein recovery of several millions of dollars was sought. For our purposes here, it is sufficient to say that such claims were based on allegations that the Company carelessly and negligently misrepresented to Consumer the best system to install, the projected useful life of the equipment used and the estimated consumption of energy to accomplish the required objectives.

The trial court ordered that the counterclaim be tried separately, and Consumer continues to protest the propriety of that order. It relies on Rule 55.45(a), V.A.M.R., which provides, in part, that: 'A pleading shall state as a counterclaim any claim which at the time of filing such pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim * * *' In response, the Company relies on Rule 66.02 which provides, in part, that: 'The court in furtherance of convenience or to avoid prejudice may order a separate trial of any . . . counterclaim . . ..'

The rules in question each have a singular purpose and rest upon a valid premise. They do not conflict with each other. Rule 55.45(a) is designed to discourage a multiplicity of litigation and avoid separate trials of the same subject matter, and in those instances specified in the rule, it is mandatory that a counterclaim be filed. In this manner, the related matters are brought before one court. Only after Rule 55.45(a) has been complied with does Rule 66.02 become significant. It permits the trial court, after consideration has been given to all pleadings filed and the issues therein created, to determine whether it would be more expeditious or convenient to try any of such issues separately and whether such could be done without prejudice to the rights of the parties. As said in B-W Acceptance Corporation v. Benack, 423 S.W.2d 215, l.c. 217 (Mo.App.1967): 'Granting a separate trial is discretionary with the trial court and its ruling will be disturbed only if that discretion is abused. Hays v. Proctor, Mo.App., 404 S.W.2d 756(11); Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596(4). One of the obvious purposes of this separate trial rule is to avoid delay. The rule substantially follows Federal Rule of Civil Procedure 42(b). See Vol. 2B, Barron and Holtzoff, Federal Practice and Procedure, § 943, quoting Collins v. Metro-Goldwyn, Pictures Corp., C.C.A.2d, 106 F.2d 83, l.c. 87: '* * * the trial judge has a practical discretion to dispose of them together, but when the natural course of trial indicates that one claim can be disposed of quickly and summarily while the other will require a considerable trial, separation should be possible save in cases where the facts are so inextricably interwoven that it is impossible or at least manifestly unfair.''

We do not believe the trial court abused its discretion in this case. The Consumer's counterclaim is long and complicated with eleven counts seeking damages relating to architectural plans for the three complexes, life-spans of various pieces of equipment and their efficiency in comparison to other energy systems not used. Resolution of such potentially complicated issues would have no direct bearing on the one issue presented in the Company's petition, which, although involving a large amount of money and a large consumer, is in fact nothing but an action for an unpaid utility bill. On this point, the Company submits for consideration several out-of-state cases, e.g., Huff v. Electric Plant Board, 299 S.W.2d 817 (Ky.App.1957); Brown v. Illinois-Iowa Power Co., 321 Ill.App. 164, 52 N.E.2d 722 (App.Ct.Ill.1943); and Wisconsin Power & Light Co. v. Berlin Tanning and Manufacturing Co., 275 Wis. 554, 83 N.W.2d 147 (1957), wherein it was apparently held that utility bills cannot be set off or withheld absent a claim of nonconformance with filed tariffs. In view of our finding that the trial court reasonably exercised its discretion, we need not discuss such cases or the effect, if any, local statutes might have had on the decisions therein.

Although the counterclaim is not before us, we do point out that Consumer also based a portion of its answer on the allegation heretofore quoted, that the bills were not 'in accordance with the estimates.' (Emphasis added.) We can find no basis whatever for Consumer's reliance on 'estimates.' Assuming their relevance to the counterclaim, they have none here.

The Electric Service Agreement (Exhibit No. 14), signed by all parties, provided in paragraph 2, in part: 'The electric service provided for hereunder shall be sold and delivered by Company and shall be purchased, received and paid for by Customer under the terms and conditions of Company's Service Classification No. 3--General Service Rate--and Company's General Rules and Regulations, on file with and approved by the Missouri Public Service Commission * * *' Under paragraph 3 thereof, captioned 'Character of Service,' the Company promised to provide facilities adequate to deliver a capacity 'as estimated by Customer.' We need not repeat similar language used in the other two agreements pertaining to service for neither was based on any estimates given by the Company to the Consumer.

Finally, we consider the trial itself. The relevant evidence as...