Weicht v. Suburban Newspaper

Citation32 S.W.3d 592
Parties(Mo.App. E.D. 2000) Lee Weicht and Elizabeth Weicht, et al., Plaintiffs/Appellants, v. Suburban Newspapers of Greater St. Louis, Inc., and Journal Register Company, Defendants/Respondents. ED77618
Decision Date10 October 2000
CourtCourt of Appeal of Missouri (US)

Appeal From: Circuit Court of the City of St. Louis, Hon. Evelyn M. Baker

Counsel for Appellant: Richard C. Witzel, David Anthony Dimmitt, Paul K. Travous and Alan G. Kimbrell

Counsel for Respondent: Marvin L. Lindmark, III

Opinion Summary: Lee and Elizabeth Weicht and 116 others (collectively "Appellants") appeal from summary judgment for Suburban Newspapers of Greater St. Louis, Inc. on Count II, conversion, of their petition and dismissing for failure to state a claim Count I, tortious interference with an economic expectancy, and Count III, property damage. Appellants also appeal the trial court's dismissal of the Journal Register Company for lack of personal jurisdiction.

Division Four Holds: (1) Assuming Appellants were the owners of their routes or entitled to their possession, they have not shown genuine issues of material fact as to elements two and three of their conversion claim because Suburban Newspapers never took possession of Appellants' routes, and Suburban Newspapers never deprived Appellants of possession of their routes. (2) Appellants alleged facts necessary to meet the elements of a tortious interference with a business expectancy because they alleged facts showing an ongoing market for their routes, of which Suburban Newspapers was aware. Based on these allegations, a reasonable jury could find Appellants had a valid business expectancy of selling their routes for similar or greater prices than they paid for them without pleading specific potential purchasers. (3) Appellants alleged facts necessary to meet the elements of a Section 537.330 cause of action because Section 537.330 applies to both tangible and intangible personal property. (4) Appellants have not established sufficient evidence to make a prima facie showing that the trial court may exercise personal jurisdiction over the Journal.

Sherri B. Sullivan, Judge

Lee and Elizabeth Weicht and 116 other appellants (collectively "Appellants") appeal from a trial court judgment granting summary judgment for Suburban Newspapers of Greater St. Louis, Inc. ("Suburban Newspapers") on Count II, conversion, of their petition and dismissing for failure to state a claim Count I, tortious interference with an economic expectancy, and Count III, property damage, of their petition. Appellants also appeal the trial court's dismissal of the Journal Register Company ("Journal") for lack of personal jurisdiction. We affirm in part and reverse and remand in part.

Beginning in the early 1980's, Appellants became independent contract carriers for Suburban Newspapers. Their contracts provided Appellants with the exclusive right to distribute newspapers within a defined geographic area and to sell those distribution rights. Appellants allege that for many years prior to their lawsuit, Suburban Newspapers was aware of and fostered the purchase and sale of its delivery routes. Appellants also allege that various actions by Suburban Newspapers culminating in 1994 destroyed the value of their routes, specifically, by:

announcing its intention to destroy the portion of its newspaper distribution system that utilizes independent contract carriers who have ownership interests in their routes; intentionally breaching its contracts with a large number of Appellants, including reducing the number of newspapers made available to Appellants to deliver to all the residences and businesses on Appellants' routes and refusing to pay amounts agreed to in the distribution contracts; limiting renewal contracts to 30-day periods; substantially reducing the pay schedules in renewal contracts; hiring persons without ownership interests to deliver routes; permitting non-owner carriers to pick up their newspapers ahead of Appellants; and obstructing Appellants' efforts to sell their routes.

Appellants allege that these actions by Suburban Newspapers became widely known among carriers and prospective purchasers of Appellants' routes, rendering them unable to be sold.

Appellants divide their point one on appeal into three sections. Appellants' point IA does not identify the trial court ruling or action that they challenge, as required by Rule 84.04(d).1 Accordingly, Appellants have not preserved anything for appellate review under point IA.

Appellants' point IB argues that the trial court erred in granting summary judgment to Suburban Newspapers on Count II, conversion, of their claim because its ruling was based on Suburban Newspapers not taking possession of the routes, and thus the trial court overlooked the fact that destruction of property constitutes conversion.

This Court reviews summary judgment essentially de novo because the propriety of summary judgment is purely an issue of law. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The record is reviewed in the light most favorable to the party against whom judgment was entered, and that party is given the benefit of all reasonable inferences from the record. Id. Evidence presented in support of the motion is taken as true unless contradicted by the non-moving party's response to the motion. Id. The moving party bears the burden of proving that it is entitled to judgment as a matter of law and that no genuine issues of material fact exist. Id. at 382. A genuine issue exists where the record contains competent materials which evidence two plausible, but contradictory, accounts of the essential facts. Id. A genuine issue is not an argumentative, imaginary, or frivolous dispute. Id.

Where the moving party is the defending party, it may establish a right to summary judgment by showing facts that negate any one of the plaintiff's prima facie case elements. Id. at 381. Upon meeting this burden, the non-moving party must show that one or more of the material facts shown by the moving party to be undisputed is, in fact, genuinely disputed. Id.

Appellants divide their argument under point IB into two sections. First, Appellants argue that their routes are [in]tangible personal property which may be the subject of conversion. This section is irrelevant as the trial court did not rely on or challenge this proposition in its judgment. The trial court stated in its judgment that individuals "may have property rights in newspaper distribution routes. See, Miskimen v. Kansas City Star Co., 684 S.W.2d 394 (Mo.App. 1984)...; Parker v. Pultizer Publishing Co., 882 S.W.2d 245 (Mo.App. 1994)...." Accordingly, we do not reach and need not address this issue on appeal. Although Miskimen suggests that Appellants may have certain rights beyond contractual against Suburban Newspapers,2 those rights are not found in their conversion cause of action.

Appellants argue that Suburban Newspapers converted Appellants' routes when it destroyed their value in 1994. Conversion is the unauthorized assumption and exercise of the right to ownership over personal property of another to the exclusion of the owner's rights. Manzer v. Sanchez, 985 S.W.2d 936, 940 (Mo.App. E.D. 1999). The following three elements must be established to prove conversion: (1) plaintiff was the owner of the property or entitled to its possession; (2) defendant took possession of the property with the intent to exercise some control over it; and (3) defendant thereby deprived plaintiff of the right to possession. Id.

The trial court determined that conversion of the routes could not have occurred with regard to the following carriers: (1) those who remained in possession of their routes; (2) those who exercised contractual buy-out clauses transferring their routes to Suburban Newspapers; (3) those who abandoned their routes; and (4) those who sold their routes to third parties. Seventy Appellants stipulated to one of the four categories. Nine Appellants not stipulating to one of the four categories subsequently dismissed, with prejudice, their claims. Thirty-nine Appellants neither stipulated nor dismissed their claims, but the trial court found one of the four categories applied to each of them. Appellants do not challenge these factual findings.

Assuming Appellants were the owners of their routes or entitled to their possession, they have not shown genuine issues of material fact as to elements two and three of their conversion claim. Conversion requires "an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel." Lacks v. R. Rowland & Co., Inc., 718 S.W.2d 513, 520 (Mo.App. E.D. 1986). Suburban Newspapers never deprived Appellants of their right to possession or control of their routes. For example, Appellants do not allege that Suburban Newspapers prevented them from distributing newspapers on their routes or in any other way prevented use of their routes by Appellants.

Additionally, consent and abandonment are complete defenses to a conversion claim. Graves v. Stewart, 642 S.W.2d 649, 650-651 (Mo. banc 1982) (When "an owner expressly or impliedly assents to or ratifies the disposition of his property, there can be no recovery for conversion, as there was no unauthorized conduct regarding the property of the owner."); City of St. Peters v. Hill, 9 S.W.3d 652, 655 (Mo.App. E.D. 1999) ("Abandonment is a complete defense to a conversion action and precludes recovery.").

As Appellants argue initially, their routes are intangible personal property that may be the subject of conversion. Appellants' routes were not converted or destroyed by Suburban Newspapers. Suburban Newspapers never took possession of Appellants' routes and Suburban Newspapers never deprived Appellants of possession of their...

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