Court of Appeals of Missouri, Eastern District, Second Division
DAVID L. EVANS, Appellant,
PANERA, LLC, Respondent,
Appeal from the St. Louis County Circuit Court. Honorable Tommy W. DePriest, Jr.
FOR APPELLANT: William J. Foland, Jr., Foland, Wickens, Eisfelder, Roper & Hofer, P.C., Kansas City, Missouri; Luke R. Hertenstein, Foland, Wickens, Eisfelder, Roper & Hofer, P.C., Kansas City, Missouri.
FOR RESPONDENT: Jessica L. Liss, Jackson Lewis, LLP, St. Louis, Missouri; Amy White, Jackson Lewis, LLP, St. Louis, Missouri.
Philip M. Hess, Judge. Sherri B. Sullivan, P.J. and Mary K. Hoff, J. concur.
Philip M. Hess, Judge
David Evans (Plaintiff) appeals the trial court's judgment dismissing his first amended petition for damages against Panera, LLC (Defendant) for failure to state a claim upon which relief can be granted. Plaintiff contends that the trial court improperly dismissed his amended petition because his right to recover unpaid commissions from Defendant as compensation for his services was not barred by the written agreement requirement pursuant to § 375.116.3, RSMo. We affirm.
From 2007 until 2010, Plaintiff was the insurance broker of record for Defendant, a company headquartered and doing business in St. Louis County. During this period of time, Plaintiff worked to develop and implement Defendant's employee benefit plan by soliciting and negotiating with various insurance carriers for the purpose of procuring insurance policies to provide coverage for employees. In accordance with an oral agreement between the parties, Plaintiff received commissions from the insurance carriers that were deducted
from premiums paid on the purchased policies.
In early 2009, Plaintiff was informed by Defendant's human resources department that the company would be utilizing his services for the development of its 2010 employee benefit plan. Thereafter, Plaintiff began working with various insurance carriers and vendors in order to present a plan strategy and to propose recommendations regarding insurance coverage for Defendant's employee benefit plan, some of which were ultimately incorporated into the company's 2010 benefit plan.
In early 2010, Defendant removed Plaintiff as its designated broker of record and entered into an agreement with another broker. In the first quarter of 2010, Defendant did not pay the premiums on the policies procured by Plaintiff. As a result, and because Plaintiff was no longer Defendant's registered broker, Plaintiff did not receive commissions from the insurance carriers on those policies.
Consequently, in 2011, Plaintiff filed an eight-count petition for damages based on theories of quantum meruit and breach of contract, alleging that Defendant breached its oral agreement and was " unjustly enriched" by failing to compensate Plaintiff for his services for developing the company's 2010 employee benefit plan. Defendant moved to dismiss the petition for failure to state a claim, asserting that Plaintiff failed to allege the existence of a written agreement for compensation, as required by § 375.116.3. In February 2012, the trial court dismissed Counts I, II, III, IV, V, VI, and VIII of Plaintiff's petition based on the grounds stated in Defendant's motion to dismiss. Thereafter, Plaintiff was granted leave to file an amended petition. In February 2013, Plaintiff filed a first amended petition seeking compensatory damages for " lost earnings and benefits" based on the same claims alleged in its first petition. Plaintiff also sought punitive damages for the breach of contract claim. In January 2014, the trial court dismissed all the remaining counts for the same reasons stated in its February 2012 order. Plaintiff appeals.
Standard of Review
The dismissal of a petition for failure to state a claim may be sustained where the petition fails to allege facts essential to recovery. Klemme v. Best, 941 S.W.2d 493, 495 (Mo. banc 1997). In determining whether sufficient facts exist, we construe the petition broadly in the plaintiff's favor, and accept as true all the allegations and reasonable inferences. Id. The trial court's order will be reversed only if the petition alleges facts ...