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Reed v. Reilly Co., LLC

Court of Appeals of Missouri, Western District, Second Division

May 2, 2017

JEFF REED, Appellant,
v.
THE REILLY COMPANY, LLC, Respondent.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Marco Roldan, Judge

          Before Thomas H. Newton, P.J., James Edward Welsh, and Karen King Mitchell, JJ.

          James Edward Welsh, Judge

         Jeff Reed appeals from the circuit court's dismissal of his petition for declaratory judgment, injunctive relief, fraudulent misrepresentation and concealment, and violations of the Missouri Merchandising Practices Act (MMPA), against his former employer, The Reilly Company, LLC (Reilly). The circuit court entered the dismissal stating that it was dismissing "without prejudice to the bringing of a future action in the jurisdiction and venue selected by the contract of the parties." The employment contract between Reed and Reilly provided that Johnson County, Kansas, was the sole proper jurisdiction and venue to interpret and enforce the agreement between the parties.

         In this appeal, Reed presents six points. He contends that: (1) the circuit court erred in enforcing the outbound forum selection clause and dismissing the case because jurisdiction is proper in Missouri and venue is proper in Jackson County; (2) the circuit court erred in dismissing his MMPA claim because the exemptions in section 407.020.2(2), RSMo Cum. Supp. 2013, do not apply and Reilly failed to show that it fit within the exemptions; (3) the circuit court erred in enforcing the outbound forum selection clause and dismissing the case because he is not seeking to enforce any of the terms of the agreement; (4) the circuit court erred in enforcing the outbound forum selection clause and dismissing the case because his employment with Reilly was "at will, " no additional consideration was given in exchange for the outbound forum selection clause, and Reilly materially breached the agreement; (5) the circuit court erred in enforcing the outbound forum selection clause and dismissing the case because enforcement of the forum selection clause would be unfair and unreasonable; and (6) the circuit court erred in considering an affidavit allegedly concerning Reilly's unaccepted "settlement offer" in ruling on the motion to dismiss. We affirm the circuit court's judgment.

         Reilly is a Kansas limited liability company engaged in the business of employing insurance agents to broker insurance sales. Reilly is registered as a foreign corporation with the State of Missouri, and maintains an office[1] and registered agent in Jackson County, Missouri.

         On March 19, 2010, Reed, a resident of Jackson County, Missouri, entered into an Insurance Broker Agreement with Reilly. The agreement set forth the terms of Reed's employment with Reilly, effective March 22, 2010. The agreement contained a forum selection clause stating:

Governing Law, Jurisdiction and Venue. This Agreement shall be construed according to and governed by the laws of the State of Kansas. In the event of a dispute, the Parties agree that the sole proper jurisdiction and venue to interpret and enforce any and all terms of the Agreement shall be the District Court of Johnson County, Kansas.

         Reed is a licensed Missouri and Kansas insurance agent.

         On June 30, 2016, Reed filed suit against Reilly, seeking a declaratory judgment that the employment agreement with Reilly is void and of no effect; seeking to permanently enjoin Reilly from enforcing or attempting to enforce the employment agreement, seeking damages from Reilly for fraudulently, intentionally, or negligently misrepresenting or concealing the illusory nature of the employment agreement, and seeking the disgorgement of commissions wrongfully withheld by Reilly in violation of the MMPA. On September 9, 2016, Reilly filed a motion to dismiss seeking dismissal of Reilly's petition based upon the contract's forum selection clause. The circuit court granted Reilly's motion to dismiss stating that it was dismissing "without prejudice to the bringing of a future action in the jurisdiction and venue selected by the contract of the parties." Reed appeals.

         Generally, an order dismissing a case without prejudice is not final for purposes of appeal. Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo. App. 2000). An exception to this rule arises, however, "where the dismissal has the practical effect of terminating the litigation in the form cast or in a plaintiff's chosen forum." Id. Because the dismissal in this case precluded Reed from proceeding in his chosen forum, we have jurisdiction to hear the appeal.

         We review the circuit court's grant of a motion to dismiss de novo. Burke v. Goodman, 114 S.W.3d 276, 279 (Mo. App. 2003).[2] "We must affirm the dismissal if it can be sustained on any ground supported by the motion to dismiss[.]" Id.

         In his first point on appeal, Reed contends that the circuit court erred in dismissing the case because jurisdiction is proper in Missouri and venue is proper in Jackson County. Reed asserts that Missouri courts have jurisdiction to determine the validity of the disputed forum selection clause. Reilly agrees that personal jurisdiction and venue are proper in Jackson County, Missouri, for purposes of enforcing the outbound forum selection clause. Reilly also concedes that it is registered to do business in Missouri and is transacting business in the state of Missouri for the purposes of the exercise of jurisdiction. § 407.914, RSMo 2000. Thus, in this case, the circuit court in Jackson County had jurisdiction to determine the validity of the forum selection clause.

         We are confused, however, as to why Reed thinks that the circuit court may have dismissed his case because the court believed that it did not have jurisdiction to determine the validity of the forum selection clause. Indeed, the circuit court exercised its jurisdiction in this case and declared that it was dismissing the case "without prejudice to the bringing of a future action in the jurisdiction and venue selected by the contract of the parties." The circuit court did not declare that it did not have the jurisdiction to determine the validity of the forum selection clause. To the contrary, the circuit court determined the validity of the forum selection clause and declared that the case should be brought in the jurisdiction and venue selected by the contract.[3] Reed's first point on appeal is without merit.

         In his second point on appeal, Reed asserts that the circuit court erred in dismissing his MMPA claim because the exemptions in section 407.020.2(2) do not apply and Reilly failed to show that it fit within the exemptions. In his petition, Reed specifically alleged that Reilly violated the MMPA by wrongfully ...


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