*1 MOONEY, Bеfore LAWRENCE E. Appeals, Missouri Court of C.J., CRANE, J., KATHIANNE KNAUP District, Southern RUSSELL, R. and MARY J. Two. Division ORDER 18, Nov. 2002. PER CURIAM. Transfer Rehearing Motion or (“Mother”) appeals court’s B.N. the trial Dec. Supreme Court Denied 2002. terminating rights judgment parental her argues Application children. the trial for Transfer Denied her four She jurisdiction judg- court lacked to enter the Dec. 2002. properly because the matter was not ment the court
assigned judge, trial knowing voluntary consent to
lacked
termination, sup- no other evidence
ported rights. parental tеrmination her trial properly find the court
We
jurisdiction judg over Mother’s case. evidence, supported is
ment substantial evidence, against not weight apply erroneously
and does declare D.C., In re
the law.
(Mo.App.2001). would be jurisprudential purpose
No reciting a written opinion
served principles restating
detailed facts *2 Bennett, F. Covington,
Ann K. James LLP, Louis, Dennis Bryan St. Ow- Cave ens, Guthrie, City, Kansas Todd Benton- ville, for Appellant. Haden, Newberry, Newberry,
James W. Bullock, McGinnis, Cowherd, Kekck & LLC, Respondent. Springfield, for PARRISH, Judge.
JOHN E. (Wal-Mart) Stores, Inc., ap- peals judgment a in favor of Service Vend- (SVC) brought in an action SVC ing Co. with a for tortious interference was аwarded actual and expectancy. punitive damages. Wal-Mart contends denying motions the trial court erred judgment verdict and n.o.v. for directed refusing and in to enforce forum selec- it had with tion clause in a certain contract alleges further trial court SVC. Wal-Mart punitive submitting error in the issue In damages jury. puni- the event properly found sub- damages tive would be mitted, the trial court argues refusing to entеr remittitur erred jury punitive damages amount of and directs awarded. This court reverses judgment the trial court to enter Mart. conducts a business that owns and sent list of Store Service novelty vending
services
machines. SVC to consider.
places
its machines
various businesses.
Sumners,
SVC,
Tyler
vice-president of
permitted
1985 Wal-Mart
allow
asked Wal-Mart
if it would
*3
in stores Wal-Mart
in
operated
machines
days
equipment
havе 60
to remove its
from
Nebraska,
Missouri,
Iowa
Kansas.
the Wal-Mart sites.
In an undated letter
in
approximately
There were
136 stores
Director,
Income,”
Reeves,
to “Kent
Other
in 1985.
next 13
During
those states
the
acknowledged
Mr.
that
had
Sumners
SVC
years,
of
in
the number Wal-Mart stores
it
received written notice that
would be
to 444.
those states increased
equipment from
to remove its
compensated
by paying
Wal-Mart
days.1
Wal-Mart stores within 30
In addi-
on
the ma-
Wal-Mart
commission
sales
tion to
additional time which
asking for
The
chines made.
commissions varied
to remove
the letter
equipment,
the
stated
gross
from
to 40% of
ma-
30%
sales on
selling
equipment
considered
chines other than “Children’s Miracle Net-
replacing
that would be
it.
vendor
Seventy percent
gross
work” machines.
of
stated,
The letter
“We have received no-
sаles from Children’s Miracle Network
by phone,
tice
from
vendors
it is
those
that
paid
were
to Wal-Mart for that
machines
them,
option
per
not an
Other
Income
remaining
The
30%
charity.
of Children’s directive,
equipment on
buy
sight
to
said
Miracle Network machines’
was re-
sales
“thoughts
asked Mr. Reeves’
[sic].” SVC
product
tained
for items
by SVC
costs
on this matter.”
the
dispensed.
machines
letter
replied by
Kent
dated Oc-
Reeves
into
In 1992 SVC and Wal-Mart entered
was
tober
1998. The letter
on Wal-
prescribed
that
the
written contract
is
Mart
Mr. Reeves
identified
letterhead.
The con-
dealings.
terms of their business
“Director,
Other
letter as
Income.”
tract
for Wal-Mart
to receive
provided
states:
letter to Mr. Sumners
40%
on “bulk vending”
commission
sales.
making
I
it
apologize for not
clear
weekly
record
required a
to be submit-
your
apprоve
request
did
manager
ted
the store
each store in
to
from
period
thirty
to
the exit
extend
were
re-
which machines
maintained. The
days
days.
agree
to
do
sixty
We
port
to “indicate total sales minus
was
sixty
as
days would be reasonable
to not
a balance
leaving
sales tax
on which
disrupt
business.
your other
will be based.”
commission
Commissions
paid weekly.
were to be
clarify
you
I
also want to
Wal-
selling your
Mart’s
on
position
[SVC]
Wal-Mart notified SVC
operators.
to other
terminating
re-
parties’
Wal-Mart was
get
pro-
Mart will not
involved
receiving
After
notifica-
lationship.
you
cess.
If
wish
sell
tion,
was contacted
a vendor
acceptable
it is
operators,
to other
us.
it at
replacing
would be
some of the Wal-
your people
We
follow
(Store
must insist
Service,
stores,
Inc.
Mart
Store
and makе
procedures
outlined
a final
Service).
about
inquired
Store Service
the equipment
collection and remove
from
that was
purchasing equipment
acceptable
It is
property.
from our
stores where Store
place Wal-Mart
same
placing
Wal-Mart for the
Service would be
machines. SVC
by fax.
It bears a fax
copy
SVC's
to have been sent
Although
letter that
1.
undated,
01 '98.”
appеars
transmittal date of “OCT
evidence was
admitted in
paragraph
question
part
by the new
property
on our
installed
entitled, “Termination.”
parties’ contract
operator.
It states:
declined
Ultimately, Store Service
Agree-
terminate
may
Dan Clem-
equipment.
purchase SVC’s
notice to
Upon
time.
any
ment at
Service,
son,
testified at
of Store
president
oral,
equip-
all
[SVC],
written
either
He said his
by videotape deposition.
trial
be re-
shall
belonging
[SVC]
ment
pur-
company made the decision not
within
property
from Wal-Mart
moved
on its cost. He
chase the
based
(10)
notice.
days
receiving written
ten
him
personnel
asked if Wal-Mart
told
removal shall be
All costs of such
equip-
unwilling to allow SVC’s
it would be
In the event
[SVC].
*4
responsibility
in
Mr. Clemson
place.
ment to be sold
its
fails to remove
[SVC]
answered,
he wаs told
“Correct.” He said
any reasonable
may use
Wal-Mart
the
had to be removed from
the
and
space
to free the
necessary
means
Mr.
stores.
Clemson
Wal-Mart
In
all related costs.
charge [SVC]
asked,
mean
“All
And that would
right.
litigation arises between
the event
it
you
buy
equipment,
that for
Agreement,
due to this
Mart and [SVC]
removed from
would be—have
be—be
dispute
agreed that such
expressly
it is
trax —transac-
each location and then some
and tried
by the laws
governed
will be
off site for
place
tion would have to take
[Emphasis
Arkansas.
in the State of
then
purchased
and
added.]
site;
that correct?”
brought back on
filed a motion to dismiss
Wal-Mart
answered,
I
He
how understand
“That’s
motion
to trial. The
prior
case
SVC’s
it.”
writ
out of the
action arose
alleged SVC’s
action that is the sub-
brought
provision,
contrаct that contained
ten
in
ject
appeal
of this
the Circuit Court
litigation arises between
“In the event
County,
Lawrence
Missouri. SVC assert-
Agree
this
due to
[SVC]
Wal-Mart
tortiously
ed
interfered with
Wal-Mart
ment,
that such dis
expressly agreed
it is
selling
SVC’s
of and
by the laws
pute
governed
will be
be
SVC’s
to vendors
would
The mo
of Arkansas.”
tried
State
it at
stores. SVC
replacing
the forum se
tion
alleged
“[b]ecause
expectation
it had a valid
contended
in
must be en
clause
this case
lection
in
vending
machines
could sell
forced,”
court in which
the Missouri
vendors that would
approved
subject
“have
brought did not
case was
replace SVC.
nor is
dispute,
over this
jurisdiction
matter
The trial
venue.”
proper
[that] Court
Forum,
concluding that
the motion
court denied
between
asserts the
the contract
language
Wal-Mart’s Point IV
not
relied did
refusing
parties
erred in
to enforce
on which Wal-Mart
trial court
in a
proceeding
action from
regard
preclude
in its contract with SVC
provision
it was a tort claim.
court because
Missouri
ing
provision
forum selection.2 The
-
law,
question
jurisdiction
is a
exists
is one for
2. "When the motion to dismiss
independent
appellate court reviews the issue
relating
improper
to a forum selection
venue
сlause,
Boyke,
S.W.2d
appeal.
v.
936
ly on
Farris
as an issue of
it should be treated
Co.,
1996).”
Tutor
(Mo.App.
Scott v.
Leasing
Century
200
jurisdiction. Chase Third
Inc.,
Williams,
Systems,
Time Child Care
411-12
v.
Inc.
(Mo.App.2000).
(Mo.App.1989). Because the issue of whether
held the
trial court
the forum
woods and Sears. This court
The
concluded
selec-
claims,
tort claim was not
dispute presented
contract
applied
tion clause
scope
the contract that con-
parties
tort actions between the
to the within the
that,
provision;
the arbitration
agreement.
agrees.
This court
tained
therefore,
com-
could not be
arbitration
questions
question
forum
Similar
pelled.
presented in this case have been addressed
language in the
involving
in cases
contracts with arbitra
Greenwood—Sears
unlike that in the Wal-
Sherfield,
contract was not
provisions.
Greenwood
as identi-
involved an Mart contract
this case insofar
(Mo.App.1995),
769
justification Mart’s for Wаl Center, 848, 863 (Mo.App. ical argues SVC failed to do so. Wal-Mart it 2000). “In claim for inter order to have a legal right had to act as it did an absolute expectancy, with business ference a valid SVC; under terms of its contract with expectancy if the necessary to determine protect its inter- it acted economic valid claimed under was reasonable rights. ests with its contract consistent not, If it is allegеd. the circumstances argument with its regarding Consistent for defendants nothing there I, Point II valid Point asserts SVC had no v. First Midwest interfered with.” Gott in to sell its machines expectancy (Mo. Dexter, Bank requirement the ma- place without App.1998). removed from the premises chines to be permitted The contract parties’ the terms of the because of contract be- agreement “at in to terminate the parties. tween the The issues raised notice of termination any Upon II on same time.” dependent I and are Points Wal-Mart, given contract being contract. provision parties' states, plain language equipment belonging contrary to was “[A]ll shall be removed from Wal-Mart SVC’s contract with Wal-Mart. Wal- [SVC] (10) property days receiving within ten compliance Mart’s insistence that there be argues written notice.” Wal-Mart this regarding with contract terms removal case; in justified. the action it took this had no val- supported equipment was permitted expectancy that the contract it to insist that it would be id business place that rea- in permitted be removed. For to leave its son, conjunction failed to in prove premises Wal-Mart asserts SVC on Wal-Mart justification an absence of for Wal-Mart’s a sale of the to a new vendor. and, consequently, permit conduct Any hope that Wal-Mart would occur, expectancy selling contrary no business its ma- the terms of the best, contract, was, chines in without the machines hav- at tenuous. SVC’s was, removed a matter of ing premis- from Wal-Mart claimed as asserts, therefore, law, es. Wal-Mart neither reasonable nor valid view of prove failed to its claim for tortious inter- the terms of the contract. expectancy; ference of a business that the I II are valid. The trial Points in denying trial court erred Wal-Mart’s denying court erred in Wal-Mart’s mo- and, motions verdict for directed subse- and, having failed tions for directed verdict quently, denying erred Wal-Mart’s mo- motions, denying grant those judgment n.o.v. subsequent judgment motion for n.o.v. As judg- compelled this court is to reverse There was no evidence Wal-Mart’s bases, on remain- varied ment these Wal-Mart’s position dealings its with SVC ing points require no discussion. rights it it had under its from the asserts judgment is reversed. The case is re- sought a contract with SVC. When SVC directed to manded. The trial court is longer removing time for enter judgment Wal-Mart. than it was otherwise entitled under the previously contract and the demand made RAHMEYER, PREWITT, P.J., and Wal-Mart, representative, Wal-Mart’s C.J., concur. Rеeves, Kent told SVC that Wal-Mart *7 get would not involved with SVC’s efforts AND ON MOTION FOR REHEARING advised equipment. to sell its Mr. Reeves FOR TRANSFER MOTION SVC, equipment “If the to you wish to sell acceptable to us. We operators, other it is PER CURIAM. your follow the people
must insist (SVC) Company filed Vending Service outlined and make a final col- procedures rehearing for and for transfer. motions the from lection and remove an amended mo- subsequently filed SVC addеd, letter property.” our Mr. Reeves’ Based on the contract rehearing. tion for for the same acceptable “It is to Wal-Mart filed in opinion provision discussed property to installed on our be case, failed this court found SVC this operator.” the new by justification the element of lack of prove (Wal-Mart), Stores, Inc. by by of the contract Wal-Mart Upon termination Wal-Mart, interferеnce with claim for tortious provided the contract for SVC’s SVC’s suggests in expectancy. SVC Any expecta- equipment to be removed. in its provision that another could be its motions by property tion that the Wal-Mart, a di- provision with without the re- contract sold to another vendor or transfer of the “assignment rected to that the be removed quirement duty is 11, rules a court’s af- familiar [SVC],” the rights granted paragrаph con- of the interpretation to the expectancy confined reasonable forded SVC made for parties machines which vending sell its tract that it could themselves, its wis- af- regard selected without to the vendor Wal-Mart may a court folly, the contract its and that ter terminated dom or Wal-Mart para- which argues that due into a contract words with SVC. SVC not read 11, justifica- was without not contain.” graph Wal-Mart does contract vending equip- requiring tion SVC’s (Mo. 399, 403 Hyde, 855 v. Smoot a successor to be removed if sold to ment York Rickey v. New quoting App.1993), vendor. Co., 229 Mo.App. Ins. Life which the contract to provision (1934). in this case The contract assignment relates refers action Wal-Mart defense afforded vending by a vendor. It rights transfer of with a business tortious interference of Wal- requires prior written consent The other brought by SVC. vendor, in order for a in this instance Mart Rehearing and in the Motion for issues SVC, contract assign the vendor’s Mo the Amended Motion for Transfer and transaction, there When such a rights. dis Rehearing no further require may permits equipment the contract The motions are denied. cussion. new remain on sold to the vendor to be property. That was case, in this
situation case. this Para- terminated contract.
Mart SVC’s par- prescribes rights
graph all required
ties when that occurs. W. Margaret RATHBUN Jaсk C. belonged to SVC Rathbun, Trustees, Rathbun For Upon terminating agree- removed. January 10, Plain- Trust Dated permitted by ment with SVC as con- tiffs-Appellants, tract, comply 12 of the requirements paragraph filed opinion contract. As stated in the CORPORATION, The CATO case, justified this Wal-Mart’s conduct Defendant-Respondent. contract; thus, provision rights, of Wal-Mart’s contractual reason No. 24578. expec- prove failed to а valid business Appeals, Missouri Court of of an showing in that there no
tancy District, Southern ac- justification absence for Wal-Mart’s Division One. *8 tions. Nov. 2002. a mat of a contract is Construction Brekke, 977 Stephens law. ter of Denied Rehearing Transfer Motion (Mo.App.1998). Dec. 2002. de- everywhere repeatedly “Courts for Transfer Denied Application rule that applied general clared 28,2003. Jan. of the court province not within the is construction, toor alter a contract parties. a new contract for the make unnecessary support cite cases