Wenthe v. Willis Corroon Corp.

• Citation: 932 S.W.2d 791
• Decision Date: 13 February 1996
• Docket Number: No. 67644,67644
• Parties: Philip K. WENTHE, Plaintiff-Appellant, v. WILLIS CORROON CORP., et al., Defendants, and General Dynamics Corporation, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 791

932 S.W.2d 791

Philip K. WENTHE, Plaintiff-Appellant, v. WILLIS CORROON CORP., et al., Defendants, and General Dynamics Corporation, Defendant-Respondent.

No. 67644.

Missouri Court of Appeals,

Eastern District.

Feb. 13, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 25, 1996.

Case Transferred to Supreme Court

May 28, 1996.

Case Retransferred to Court of

Appeals Nov. 19, 1996.

Original Opinion Reinstated

Nov. 27, 1996.

Appeal from St. Louis County Circuit Court, St. Louis County; Robert Lee Campbell, Judge.

Richard B. Blanke, Charles W. Bobinette, Uthoff, Graeber, Bobinette & O'Keefe, St. Louis, for appellant.

Stanley C. Schroeder, Patricia M. McFall, St. Louis, Douglas M. Greenwald, Kansas City, for respondent.

DOWD, Judge.

Philip K. Wenthe ("Wenthe") appeals from the trial court's dismissal of Counts IX, X, and XI of his first amended petition and from the trial court's order granting summary judgment in favor of General Dynamics on Count VII of his first amended petition by interlineation. We reverse in part and affirm in part.

Wenthe is an insurance broker. In the early 1980s, Wenthe developed a book of business for his previous employer that included insuring several lines of business for General Dynamics ranging from voyaging marine vessels to the launching of Atlas space rockets. On October 1, 1985, Willis Corroon, ¹ an insurer, hired Wenthe as an insurance broker, and a written employment contract was executed. Simultaneously, Willis Corroon and Wenthe executed another written agreement that outlined the parameters of their newly formed relationship. The agreement provided Willis Corroon would finance Wenthe's purchase of the General Dynamics accounts from his previous employer in exchange for a share of the net commissions earned from the accounts and, importantly, an option to purchase the General Dynamics accounts from Wenthe.

Willis Corroon exercised its option in March of 1988 and agreed to pay Wenthe approximately 12.5% of the net commissions earned from the accounts through October 1, 1995. The employment agreement between Wenthe and Willis Corroon was amended several times, the last of which provided for his employment through October 1, 1997.

Wenthe alleges in Count VII that in the fall of 1988 he entered into an oral contract with General Dynamics to provide insurance coverage for the launch of sixty Atlas rockets. Wenthe claims General Dynamics promised him its space insurance business, whether as an independent broker or as an employee of Willis Corroon. In exchange, Wenthe promised to service the General Dynamics accounts and not to offer such insurance packages to any competitors of General Dynamics.

Between 1988 and 1992, disputes arose between General Dynamics and Willis Corroon. On October 28, 1992, General Dynamics and Willis Corroon settled their disputes by executing a release agreement. Among other things, the agreement provided the following: "Willis Corroon is claiming commissions and premiums due on Third Party Space (Pre-Launch, Launch, and In-Orbit) Liability Insurance. Willis Corroon has submitted invoice # 6589 in the amount of $3,680,000. As part of the settlement, Willis Corroon agrees to drop its claim for premiums and commissions in connection with such insurance...." Between January and March of 1992, Wenthe was removed from servicing all of General Dynamics accounts at Willis Corroon. Wenthe eventually left Willis Corroon in the summer of 1993.

On March 16, 1994, Wenthe filed a petition against Willis Corroon and General Dynamics asserting several legal theories regarding his employment agreement and his purchase agreement with Willis Corroon and the actions of General Dynamics. Wenthe's first amended petition, as amended by interlineation, became the basis for this appeal. The counts dismissed by the trial court are as follows: Count VIII alleged General Dynamics slandered Wenthe; ² Count IX and X alleged General Dynamics tortiously interfered with Wenthe's contract and business expectancy in his annual compensation, and his past-earned and future-earned commissions for servicing General Dynamics' accounts with Willis Corroon; and Count XI alleged a civil conspiracy among the various Willis Corroon entities and General Dynamics based upon the wrongful actions asserted in Counts VIII through X. The trial court entered summary judgment in favor of General Dynamics on Count VII, which alleged General Dynamics breached an oral contract with Wenthe regarding the sixty Atlas space launches. The remaining counts against Willis Corroon are pending before the trial court. ³

In his first two points on appeal, Wenthe asserts the trial court erred in dismissing Counts IX, X, and XI of his first amended petition. In reviewing a trial court's order dismissing a claim, we accept all properly pleaded facts as true, we give the pleadings their broadest intendment, and we construe all allegations favorably to the pleader. Davis v. Carmichael, 755 S.W.2d 679, 680 (Mo.App.1988); See Sofka v. Thal, 662 S.W.2d 502, 506 (Mo. banc 1983). A petition is sufficient if it invokes substantial principles of law which entitle the plaintiff to relief and informs the defendant of what the plaintiff will attempt to establish at trial. Fischer, Spuhl, Herzwurm & Associates, Inc. v. Forrest T. Jones & Company, 586 S.W.2d 310, 316 (Mo. banc 1979). Furthermore, a pleader is only required to state the ultimate facts and it is not required to plead the facts or circumstances by which the ultimate facts will be established. Scheibel v. Hillis, 531 S.W.2d 285, 290 (Mo. banc 1976). Importantly for the case at bar, Scheibel went further and instructed that "Plaintiff could be compelled ... by interrogatories to give more information ... but this does not mean the petition does not state a cause of action[.]" Id. Because the trial court did not state its reasons for granting the motions to dismiss, we presume the dismissal was based upon one of the grounds presented, and we will affirm the dismissal if any of the points can sustain the trial court's action. Berkowski v. St. Louis County Bd. of Election Commissioners, 854 S.W.2d 819, 823 (Mo.App.1993).

General Dynamics asserts the dismissal of those counts should be upheld for two reasons: First, "To allege tortious interference based on slander, plaintiff must first state a claim for slander, which plaintiff has failed to do." Second, General Dynamics cannot interfere with its own contract; therefore, Wenthe has failed to plead absence of justification, an element of intentional interference with contract. ⁴ We disagree.

Before turning to the merits of General Dynamics arguments, we set out the dismissed allegations of Wenthe's first amended petition. As for the first element, Wenthe alleges the existence of multiple employment agreements, an overview agreement, and a purchase agreement that show a contract or valid business expectancy. For example, the parties signed two agreements on October 1, 1985. The first included a resolution that made clear Willis Corroon recruited and hired Wenthe because of his ownership of the valuable General Dynamics accounts. As a part of the first agreement, Willis Corroon lent $840,000 to Wenthe so that he could purchase the General Dynamics accounts from his previous employer. In exchange for the loan, among other things, Wenthe agreed to give Willis Corroon an option to purchase the accounts by January 1, 1988. If Willis Corroon exercised its option, the first agreement further provided Willis Corroon "shall offer to Philip K. Wenthe an employment contract to commence effective with the exercise of said option which shall provide a compensation package in accordance with [Willis Corroon's] guidelines in effect at October 1, 1985." In fact, Willis Corroon exercised its option in 1987 and granted Wenthe an employment contract.

Given Wenthe's recruitment by Willis Corroon and his long-standing work with General Dynamics accounts, Willis Corroon's agreement to offer Wenthe an employment contract after it had purchased the General Dynamics accounts from him, clearly shows the expectations of the parties were to allow Wenthe to continue servicing those accounts in return for a salary based upon Willis Corroon's compensation guidelines. This is indeed what happened from 1987 until 1992, the time of the alleged interference by General Dynamics. Thus these contracts and the course of dealings between the parties constitute the basis for the business expectancy allegedly interfered with by General Dynamics. ⁵

As for the second element, Wenthe alleges "Defendant General Dynamics Corporation knew of the existence of the Employment Agreement and the Purchase Agreement." As for the third element, Wenthe alleges General Dynamics intentionally interfered with his employment and purchase agreements, among other things, by:

1) making the false defamatory statements as set forth hereinabove; ⁶ 2) threatening and refusing to pay the earned premiums, commissions and fees owed on its accounts with defendant Willis Corroon Corporation of Missouri, and unearned future premiums for non-cancelable policies, unless defendant Willis Corroon Corporation of Missouri refused to allow plaintiff to work on the General Dynamics Corporation accounts; and 3) threatening to remove all future business from all Willis Corroon entities unless defendant Willis Corroon Corporation of Missouri refused to allow plaintiff to work on the General Dynamics Corporation accounts.

As for the fourth element, Wenthe alleges:

Defendant General Dynamics Corporation intentionally interfered as alleged above, without justification or excuse, in that they were motivated by the improper motive to harm plaintiff and further used wrongful means, to-wit: defendant had no legal right to tortiously defame plaintiff in the manner alleged in Count VIII ...; and defendant General Dynamics Corporation wrongfully cajoled and...