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07/05/83 CHARLES L. FRIEDMAN AND KAREN L. FRIEDMAN

July 5, 1983

CHARLES L. FRIEDMAN AND KAREN L. FRIEDMAN, PLAINTIFF-APPELLANT,
v.
EDWARD L. BAKEWELL, INC. AND NANCY BARDENHEIER, DEFENDANTS-RESPONDENTS.



From the Circuit Court of St. Louis County; Civil Appeal; Judge George W. Cloyd.

Before Snyder, P.j., Dowd, Gaertner, JJ.

The opinion of the court was delivered by: Gaertner

Plaintiffs appeal from an order dismissing their petition for failure to state a cause of action for tortious interference with a business expectancy.

Appellant's first amended petition alleged that on April 26, 1981, appellants, through their real estate agent, made a written offer to purchase certain real property owned by Gertrude, Adele, and Jenevive Dubuque (sellers). Sellers counter offered orally through their realtor Nancy Bardenheier, agent for Edward L. Bakewell, Inc. (both respondents). Appellants accepted the sellers' oral counter offer on or about April 27. Sellers subsequently sold the property to a third party buyer.

The petition further alleged that defendants-respondents induced the sellers to contract with the third party buyer, thereby intentionally interfering with a business expectancy that arose between appellants and sellers on the appellants' acceptance of sellers' oral counter offer. The petition further alleged that the respondents were motivated to interfere because of the prospect of a larger commission in a sale to the third party, who was their own client, rather than to appellants, who employed another realtor.

Respondents' motion to dismiss for failure of the petition to set forth all elements required to establish a claim of tortious interference with a business expectancy was sustained by the trial court and this appeal ensued.

A petition is sufficient against a motion to dismiss if its allegations invoke substantive principles of law which entitle the plaintiff to relief and if it alleges facts which inform the defendant of what the plaintiff will attempt to prove at trial. Fischer, Suphl, Herzwurm & Associates, Inc. v. Forrest T. Jones & Co., 586 S.W.2d 310, 315 (Mo. banc 1979); Heitman v. Brown Group, Inc., 638 S.W.2d 316, 320 (Mo.App. 1982). In reviewing dismissal of a petition for failure to state a claim, the appellate court will consider the facts set forth in the petition to determine the validity of the trial court's judgment. Pillow v. General American Life Insurance Co., 564 S.W.2d 276, 279 (Mo.App. 1978). "The facts stated in the petition are to be taken as true, and if the facts pleaded and the reasonable inferences to be drawn therefrom, viewed most favorably from the plaintiff's vantage point, show any ground for relief, the petition may not be dismissed." Id. In determining the sufficiency of the petition to state a claim, Conclusions of the pleader are not considered. Cady v. Hartford Accident & Indemnity Co., 439 S.W.2d 483, 485 (Mo. 1969).

Appellants contend on appeal that their petition, when accorded a reasonable and fair intendment, properly pleads all the elements of a cause of action for tortious interference with a contract or business expectancy as set down in Fisher, Spuhl, Herzwurm & Associates, Inc. v. Forrest T. Jones & Co., 586 S.W.2d 310, 315 (Mo. banc 1979):

"(1) A contract or a valid business relationship or expectancy (not necessarily a contract);

(2) Defendant's knowledge of the contract or relationship;

(3) Intentional interference by the defendant inducing or causing a breach of the contract or relationship;

(4) The absence of justification; and,

(5) Damages resulting from defendant's conduct."

Respondents argue, inter alia, that the petition fails to state facts which, if proved, would establish the absence of justification and ...


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