GABRIELLE DORAN, et al., Appellants, vs. DINESH CHAND, et al., Respondents.
WD69225
IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT
March 17, 2009
Before Victor C. Howard, P.J., Joseph M. Ellis, Judge and Alok Ahuja, Judge
APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY, MISSOURI, The Honorable Owens L. Hull, Jr., Judge
Facts Alleged in Petition and Procedural History
Employees are former employees of ADT who were discharged over the course of approximately eighteen months. They initiated this case against ADT, Tyco, and nine individuals in their role as managers. In their petition, Employees claim that they were subjeсted to race discrimination, harassment, and retaliation while working at ADT.
The lawsuit includes three counts; the first two are contract claims. Count I (Breach of Manager’s Contract) alleges the breach of purported contracts between certain Employees in mаnagerial positions and ADT. Employees assert that ADT’s Employee Handbook, its policies on Harassment and Equal Employment Opportunity, Tyco’s Standards of Conduct, and acknowledgement forms signed by them acknowledging that they received the policies and agreeing to abide by them constitute an enforceable contract between the manager Employees and ADT and its managers. Employees allege that ADT and its manager defendants breached this purported contract by failing to:
(a) adhere to “zero tolerance” pоlicy on harassment, discrimination and retaliation; (b) failed to immediately report any act, complaint, or rumor of harassment, discrimination, retaliation, or inappropriate behavior to higher management; (c) failed to help however possible in any investigatiоn; (d) failed to investigate complaints; (e) failed to report harassment, discrimination and retaliation; (f) failed to report hostile, inappropriate, intimidating, or offensive working conditions; and (g) failed to foster a work environment that was free [from] harassment, discrimination, оr retaliation.
Count II (Third-Party Beneficiary) is a breach of contract theory that alleges Employees were intended beneficiaries of a purported contract between the ADT manager defendants and ADT. Employees again assert that ADT’s policies on Harаssment and Equal Employment
Finally, Count III alleges the tort of negligent supervision. In particular, Employees assert that ADT, Tycо, and Dave Knack had the duty to properly supervise the other ADT manager defendants “to ensure that they would not unfairly or unjustly, in violation of company policy and their employment contract, discriminate against [Employees] so as to unjustly discharge [Employees] and cause them damages.” Employees also assert that ADT and Tyco negligently breached this duty causing Employees damages “in that they were discharged unjustly.”
ADT filed a motion to dismiss and suggestions in support. The motion alleges that Employees’ claims should be dismissed for failure to state a сlaim upon which relief may be granted. Employees filed suggestions in opposition. Following a hearing on the motion, the trial court granted ADT’s motion to dismiss. In its judgment, the trial court stated, “Accordingly, this Court enters a judgment dismissing the above-captioned matter with prejudice as to all clаims and all parties, with each party to bear its own costs.” This appeal by Employees followed.
Dismissal of Defendants Other Than ADT
In the first point on appeal, Employees assert that the trial court erred in dismissing their petition as to any party other than ADT, specifically Tyco and the individual managеrs, because ADT’s motion to dismiss did not request any relief for the other defendants. They claim that the trial court lacked jurisdiction over Tyco and the individual managers or the claims against them because they had not yet been served, had not entered an appearance, were not represented by ADT’s counsel, and had not filed any motion or requested to be dismissed from the case.
While ADT filed a motion to dismiss, Tyco and the individual managers did not. In fact, it is undisputed that Tyco and the individual managers were never served process and no entry of appearance was made on their behalf. Accordingly, the trial court erred in dismissing Employees’ petition against Tyco and the individual managers. See Manzella, 258 S.W.3d at 504 (where trial court properly quashed service of process against defendants because person who accepted service of process was not authorized agent of defendants, trial court lacked jurisdiction to consider and grant defendants’ motion to dismiss petition on basis of expired limitations). See also Ambassador Flooring Co. v. Choate, 877 S.W.2d 687, 688 (Mo. App. E.D. 1994)(trial court erred in dismissing third party petition where neither of the third party members moved for dismissal although they did move to dismiss lis pendens); Smith v. Lewis, 669 S.W.2d 558, 561-62 (Mo. App. W.D. 1983)(dismissal of defendants designated by fictitious names was
Dismissal of ADT
Employees next contend that the trial court erred in dismissing their petition for failure to state a claim upon which relief may be granted. A motion to dismiss for failure to state a cause of action attacks the adequacy of the plaintiff’s petition. Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 463-64 (Mo. banc 2001). It assumes that all of the pleaded facts are truе and grants to the plaintiff all reasonable inferences therefrom. Id. at 464. “‘[T]he petition is reviewed in an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in [the] case.’” Id. (quoting Nazeri v. Mo. Valley Coll., 860 S.W.2d 303, 306 (Mo. banc 1993)). The dismissal of a petition for failure to state a cause of action is reviewed de novo. Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 768 (Mo. banc 2007). The appellate court must affirm the dismissal if any ground asserted in the motion to dismiss is proper. Mobius Mgmt. Sys., Inc. v. W. Physician Search, L.L.C., 175 S.W.3d 186, 188 (Mo. App. E.D. 2005).
In its motion to dismiss, ADT claimed that Employees’ contract claims, Counts I and II,3 should be dismissed because no valid employment contract exists. Under Missouri’s
In this case, Employees point to nothing in ADT’s handbook or policies or the acknowledgement forms that would lead a reasonable at will employee to believe that ADT clearly and definitely offered to modify his or her at will status. Moreover, ADT’s policies against discriminаtion do not constitute a contract because consideration is lacking. “‘[A] promise to do that which one is already legally obligated to do cannot serve as consideration for a contract.’” Zipper v. Health Midwest, 978 S.W.2d 398, 416 (Mo. App. W.D. 1998)(citation omitted). Federal and state law legally obligate employers in Missouri to not harass, discriminate, or retaliate against employees based on race, national origin, or color.
Count III of Employees’ petition claimed negligent supervision. ADT asserted in its motion to dismiss that the claim should be dismissed because Missouri law rejects the use оf tort theories for wrongful discharge claims. ADT is correct. Count III is essentially a claim for wrongful discharge under the guise of negligent supervision. As discussed above, in Missouri, an at will employee may not maintain an action for wrongful discharge absent a valid contract or contrary statutory provision. Johnson, 745 S.W.2d at 662; Dake, 687 S.W.2d at 192-93. Employees did not have a valid employment contract, and they do not attempt to base their claims on a contrary statutory provision. To permit an at will employee to state a claim for wrongful discharge under the guise of negligent supervision would subvert the long standing employment at will doctrine. See Dake, 687 S.W.2d at 193 (employment at will doctrine would not be subverted by cloaking a claim for wrongful discharge under the guise of the prima facie tort doctrine); Hanrahan v. Nashua Corp., 752 S.W.2d 878, 883-84 (Mo. App. E.D. 1988)(employee did not state a claim for wrongful discharge under the theories of tоrtious interference with business expectancies and fraud absent valid contract, constitutional provision, statute, or regulation based on statute); Neighbors v. Kirksville Coll. of Osteopathic Med., 694 S.W.2d 822, 824 (Mo. App. W.D. 1985)(at will employee could not maintain an action for emotional distress resulting from her termination). The trial court did not err in dismissing Employees’ Count III against ADT.4
Finally, Employees claim that the trial court abused its discretion in not granting them the opportunity to amend their petition.
1) hardship to the moving party if leave to amend is not granted; 2) reasons for failure to include any new matter in previous pleadings; 3) timeliness of the application; 4) whether an amendment could cure any defects of the moving party’s pleading; and 5) injustice to the party oрposing the motion.
Moynihan v. City of Manchester, 203 S.W.3d 774, 776 (Mo. App. E.D. 2006)(citation omitted); Curnutt, 903 S.W.2d at 193.
In their written opposition to ADT’s motion to dismiss, Employees alternatively requested leave to amend their petition. They did not, however, recite any new or additional facts or claims that they wished to assert in an amended petition nor attach a рroposed amended petition to their response. Similarly, Employees fail to identify in their brief on appeal what new allegations they wish to present in an amended petition to cure the inadequacy of their original
The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
VICTOR C. HOWARD, PRESIDING JUDGE
All concur.