Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of Lincoln County Cause No.
15L6-CC00094 Honorable W. Brent Powell
Colleen Dolan, Judge.
Zafer ("Zafer") and Zafer Chiropractic & Sports
Injuries, P.A. ("Zafer Chiropractic") (hereafter
referred to collectively as "Appellants") appeal
the Circuit Court of Lincoln County's judgment on the
pleadings in favor of Andy Hermann ("Hermann") and
Farmers Insurance Company, Inc. ("Farmers")
(hereafter referred to collectively as
"Respondents") on claims for (1) breach of
contract, (2) tortious interference with a business
expectancy, (3) abuse of process, (4) breach of fiduciary
duty, and (5) negligence. We affirm the motion court's
Factual and Procedural Background
Zafer Chiropractic was a business registered with the State
of Kansas. Appellant Zafer is a resident of Kansas, and he
was the sole owner and operator of Zafer Chiropractic. Zafer
was only licensed to practice medicine in Kansas, where he
treated all of his patients. However, he had patients that
lived in Missouri and Kansas. Respondent Farmers is a Kansas
insurance company that is licensed to conduct business in
Missouri and Kansas. Respondent Hermann was an employee,
agent, representative, and investigator of Farmers at all
relevant times. Hermann is a resident of Missouri and he
worked in an office located in Missouri when he allegedly
committed misconduct damaging Appellants. Appellants claim
that Farmers trained Hermann to undervalue, deny, and reduce
payments owed to insureds.
allege that Farmers provided unspecified insureds with
personal injury protection coverage and/or medical payments
coverage under unspecified automobile insurance policies.
Appellants further allege that some of these insureds
assigned their rights to insurance payments from Farmers to
Appellants in exchange for treatment by executing an
assignment of benefits agreement. Appellants allege Farmers
and Hermann refused to make payments and/or delayed making
payments to Appellants for treatment they provided to
Farmers's insureds from January 1, 2002 through March 31,
2006. Additionally, Appellants claim that Respondents made
continual attempts to undervalue and deny claims from April
of 2006 through the time of this suit. Appellants further
allege that Hermann and other unspecified Farmers's
employees contacted Hispanic and/or Spanish-speaking patients
of Zafer to threaten deportation if they did not help Farmers
file complaints against Appellants. Respondents allegedly
filed complaints with, and made false statements to, several
Kansas criminal and administrative entities about Appellants,
including the Kansas Attorney General, the Kansas Department
of Insurance, and the Kansas Board of Healing Arts.
claim that Respondents' alleged actions caused them to
lose business, asserting that they saw a decrease in the
number of both new and returning patients. Appellants also
pled that Respondents damaged Zafer's general reputation
and goodwill with his patients. Consequently, Appellants
claim that they became insolvent and "financially
destroyed" by December 6, 2010.
February 27, 2012, Appellants filed a petition against
Respondents in the Circuit Court of Cole County, which was
dismissed without prejudice based on forum non
conveniens on December 31, 2012. On May 7, 2013,
Appellants filed an identical petition against Respondents in
the Circuit Court of Jackson County. Appellants then filed
their First Amended Petition ("petition") on March
16, 2015, praying for relief under five counts: breach of
contract, tortious interference with business expectancy and
business disparagement, abuse of process, negligence, and
breach of fiduciary duties. On March 26, 2015, Respondents
made a motion for judgment on the pleadings and a motion to
transfer venue. On July 1, 2015, the entire case was
transferred to the Circuit Court of Lincoln County. On
December 16, 2015, the court entered an Order and Judgment
Granting Respondents' Motion for Judgment on the
Pleadings, finding in favor of Respondents and disposing of
all counts asserted by Appellants in their petition.
Standard of Review
should only grant a motion for a judgment on the pleadings if
the moving party is entitled to judgment as a matter of law
based on the face of the pleadings and no genuine issue of
material fact exists. In re Marriage of Busch, 310
S.W.3d 253, 259 (Mo. App. E.D. 2010) (citing Madison
Block Pharmacy v. U.S. Fidelity & Guaranty, 620
S.W.2d 343, 345 (Mo. banc 1981)). A judgment on the pleadings
presents a question of law, accordingly, we review a motion
court's decision on a motion for judgment on the
pleadings de novo. Sterling Inv. Grp., LLC v.
Bd. of Managers of Brentwood Forest Condo. Ass'n,
402 S.W.3d 95, 100 (Mo. App. E.D. 2013).
55.05 "requires a pleading that sets forth
a claim for relief to contain: (1) a short and plain
statement of the facts showing that the pleader is entitled
to relief and (2) a demand for judgment for the relief to
which the pleader claims to be entitled." Sparks v.
PNC Bank, 400 S.W.3d 454, 460 (Mo. App. E.D. 2013).
Allegations in pleadings are accepted as true, liberally
constructed, and viewed in the light most favorable to the
pleader. Anderson v. Crawford, 309 S.W.3d 863, 866
(Mo. App. W.D. 2010). Nonetheless, "Missouri rules of
civil procedure demand more than mere conclusions that the
pleader alleges without supporting facts." Transit
Cas. Co. ex rel. Pulitzer Publ'g Co. v. Transit Cas. Co.
ex rel. Intervening Employees, 43 S.W.3d 293, 302 (Mo.
banc 2001). Plaintiffs must also plead allegations of fact in
support of each essential element of the cause sought to be
pleaded. Sparks, 400 S.W.3d at 460. Thus,
the pleader must include "ultimate facts" of their
case in the petition. Id. We disregard conclusions
in a petition if they are not supported by facts. Whipple
v. Allen, 324 S.W.3d 447, 449-50 (Mo. App. E.D. 2010).
Kansas law applies to all of Appellants' substantive
contend that the motion court erred in applying Kansas law to
their substantive claims because these claims have a more
significant relationship with Missouri than Kansas. We
state applies its own procedural state laws, but it chooses
the applicable substantive law based on its own conflicts of
law doctrines. Reis v. Peabody Coal Co., 997 S.W.2d
49, 58 (Mo. App. E.D. 1999). Appellants' petition
contains two categories of claims: tort claims and contract
conflicts of law related to tort claims, Missouri employs the
"most significant relationship" test set forth in
Restatement (Second) of Conflict of Laws § 145
(1971). Reis, 997 S.W.2d at 58. Section
(1) The rights and liabilities of the parties with respect to
an issue in tort are determined by the local law of the state
which, with respect to that issue, has the most significant
relationship to the occurrence and the parties under the
principles stated in § 6.
(2) Contacts to be taken into account in applying the
principles of § 6 to determine the law applicable ...