Court of Appeals of Missouri, Eastern District, Fifth Division
from the Circuit Court of St. Louis County Honorable Ellen
S. ODENWALD, JUDGE.
Switching Services, Inc. ("RSSI") appeals from the
trial court's grant of summary judgment in favor of
Marquis-Missouri Terminal, LLC ("MMT") on
RSSI's claim for tortious-interference. RSSI alleged in
its petition that MMT interfered with a contract between RSSI
and the Pemiscot County Port Authority ("the Port
Authority") granting RSSI exclusive use of the Port
Authority's railway. The trial court found that the
contract between RSSI and the Port Authority was void ab
initio under Section 432.070. The trial court then granted
summary judgment, holding that, as a matter of law, MMT could
not interfere with a void agreement.
appeal, RSSI raises three points. First, RSSI asserts that
summary judgment was improper because material facts remain
in dispute on its claim for tortious interference. Second,
RSSI claims that the trial court erred, as a matter of law,
in holding that Section 432.070 rendered RSSI's contract
void, and assuming arguendo, even if the agreement was void,
the contract's invalidity did not preclude RSSI from
obtaining relief on its claim for tortious interference.
Third, RSSI argues that the trial court erroneously relied
upon Section 432.070 to find the agreement between RSSI and
MMT to be void because Section 432.070 is vague and therefore
the record shows that there are no material facts in
dispute, we deny RSSI's first point on appeal. We reject
RSSI's second point on appeal because the trial court did
not err in finding that the contract between RSSI and the
Port Authority was void and that MMT could not interfere with
a void contract. Finally, in its third point, we reject
RSSI's claim that Section 432.070 is unconstitutional. We
affirm the judgment of the trial court.
and Procedural History
focal point of the present dispute is a five-mile railway
owned by the Pemiscot County Port Authority ("the Port
Authority Line") that extends from the town of Hayti,
Missouri to the Mississippi River. The Port Authority Line
connects with a mainline railway owned by the Burlington
Northern and Santa Fe Railway Company ("the BNSF
Line") in Hayti, Missouri.
2011 or early 2012, RSSI began negotiating for an agreement
relating to RSSI's use of the Port Authority Line with
David Madison ("Madison"), the Executive Director
of the Port Authority. The Port Authority had previously
entered into agreements with RSSI that allowed RSSI to store
railcars owned by third parties on the Port Authority Line.
March 2012, RSSI and Madison reached an agreement expanding
RSSI's activities on the Port Authority Line. The
agreement ("the 2012 Operating Agreement") allowed
RSSI to continue storing railcars on the Port Authority Line.
However, in its "Use and Operation" section, the
2012 Operating Agreement also provided the following:
The [Port Authority] Line shall be used by RSSI operating as
a non-common carrier contract switcher under the provisions
of the Interstate Commerce Act, as amended. RSSI shall have
exclusive use of the [Port Authority] Line for all
rail purposes, provided, however, that 1) [the Port]
Authority may, to the extent that it does not unreasonably
interfere with RSSI's use thereof, continue to extend the
[Port Authority] Line using its own forces and resources, and
that 2) RSSI does not unreasonably hinder or interfere with
the ability of [the Port] Authority to allow customers to
ship or receive products or materials on the [Port Authority]
Line. ... It is understood, that a customer may provide his
own means of switching his industry, i.e. a track mobile; but
customers will not be allowed to retrieve from or deliver
cars to the BNSF. . . . (emphasis added).
and J. Michael Carr, the President of RSSI, signed the 2012
Operating Agreement. According to its own terms, the 2012
Operating Agreement was set to terminate after February 28,
of Commissioners ("the Board") governs and
administers the Port Authority.Although Madison apprised the
Board of his negotiations with RSSI and the existence of a
new purported agreement, the Board never voted to approve the
2012 Operating Agreement. The Board, as an entity, never
signed the 2012 Operating Agreement. Nor did the Board
authorize, in writing, Madison to execute the 2012
Operating Agreement. The Board did not create or produce any
writing expressly establishing Madison's authority, as
the Executive Director of the Port Authority, to execute the
2012 Operating Agreement on the Board's behalf.
April 2012, Mark Marquis ("Marquis"), the President
of MMT, contacted the Port Authority regarding MMT's
interest in building an oil-storage facility near Hayti. MMT
proposed building its facility along the Port Authority Line,
where MMT would extract oil from arriving unit trains and
load the oil onto barges for transport on the Mississippi
River. Madison believed that MMT could become the Port
Authority's most profitable customer.
2012, MMT entered into a five-year Lease Agreement with the
Port Authority to lease certain premises near the Port
Authority Line. Marquis and Duane Michie
("Michie"), Chairman of the Board of Commissioners,
signed the agreement. Pursuant to the Lease Agreement, MMT
built a facility near the Port Authority Line, constructed
storage tanks, installed 8, 000 feet of additional track as
rail siding, fitted pipelines for collecting and transferring
oil, and connected additional rail switches. MMT spent
approximately $15 million on these improvements.
August 2012, MMT entered into a Railroad Track Usage
Agreement with the Port Authority. Marquis and Michie signed
and executed the agreement. The Railroad Track Usage
Agreement granted MMT non-exclusive track access rights over
and across the entire Port Authority Line for the movement of
railcars, locomotives, and track mobiles to all points on the
Port Authority Line. The Railroad Track Usage Agreement did
not require MMT to use RSSFs services, nor did the agreement
reference any rights RSSI had regarding the Port Authority
Line. MMT planned to receive unit trains of oil, transported
by BNSF Co., starting in mid-October 2012.
the Port Authority signed the Railroad Track Usage Agreement
with MMT, Madison did not believe that MMT's operations
violated the terms of the 2012 Operating Agreement. Madison
also did not believe that the language in the "Use and
Operation" section of the 2012 Operating Agreement
required a customer on the Port Authority Line to use RSSFs
services. Accordingly, Madison never instructed MMT that it
needed to use RSSI to switch the unit trains or use RSSI to
provide any services relating to receiving unit trains on the
Port Authority Line. On October 17, 2012, as scheduled, MMT
began receiving unit trains of oil on the Port Authority
subsequently arose over MMT's use of the Port Authority
Line. RSSI maintained that the exclusive-use provision of the
2012 Operating Agreement prohibited MMT from directly
receiving or delivering cars from the BNSF Line and that MMT
was required to use RSSFs services to switch the unit trains
from the BNSF Line to the Port Authority Line. In turn, MMT
contended that its Railroad Track Usage Agreement with the
Port Authority did not require MMT's use of RSSFs
services and that, even if valid, the 2012 Operating
Agreement prohibited RSSFs unreasonable interference with the
ability of the Port Authority's customers to receive
products on the Port Authority Line.
in conflict over the use of the Port Authority Line, the Port
Authority filed suit, seeking a declaratory judgment that its
2012 Operating Agreement with RSSI was void.The Port Authority
averred that it was a municipal corporation subject to the
mandate of Section 432.070 requiring contracts with municipal
corporations to be in writing. The Port Authority argued that
its agreement with RSSI was void due to non-compliance with
the statute because the Port Authority never signed the 2012
Operating Agreement. The Port Authority moved for summary
judgment. Finding for the Port Authority, the trial court
declared the 2012 Operating Agreement void ab initio for
violating Section 432.070's mandate that contracts of a
municipal corporation be subscribed by the parties, or their
agents authorized by law, duly appointed, and authorized in
writing. RSSI appealed. On appeal, the Southern District of
this Court affirmed the trial court's judgment, holding
that Section 432.070 applied to the Port Authority's
contract with RSSI and that the 2012 Operating Agreement did
not comply, actually or substantially, with the statute's
requirements. Pemiscot Cty. Port Auth. v. Rail Switching
Servs.. 523 S.W.3d 530, 535-36 (Mo. App. S.D. 2017). The
Supreme Court of Missouri denied transfer. Pemiscot Cty.
Port Auth. v. Rail Switching Servs.. 2017 Mo. LEXIS 354
(SC96505) (Mo. Aug. 22, 2017).
its lawsuit against the Port Authority was pending, RSSI
filed a one-count petition against MMT alleging tortious
interference. In its petition, RSSI asserted that the
2012 Operating Agreement "granted RSSI the exclusive
right of operation for all rail purposes" and that the
agreement "prohibited [Port Authority] customers from
retrieving or delivering cars to/from BNSF." RSSI
further claimed that MMT knew of the terms of the 2012
Operating Agreement; however, MMT entered into agreements
with BNSF Co. and the Port Authority in direct contravention
of RSSI's purported contract with the Port Authority.
Specifically, RSSI alleged that when "MMT entered into
its Lease and Usage Agreement with [the Port Authority], RSSI
and [the Port Authority] had a valid, existing contract that
gave RSSI exclusive use of the [Port Authority] Line for all
purposes as the sole rail carrier authorized to retrieve from
or deliver cars to BNSF." RSSI maintained that, although
informed of the terms of the 2012 Operating Agreement,
"MMT intentionally induced [the Port Authority] to
breach its contractual obligations to RSSI to avoid the cost
and expense of RSSI providing MMT's rail switching needs,
and continues to do so." According to RSSI, MMT lacked
any "justification or excuse for interfering with [the
2012 Operating Agreement] or for inducing [the Port
Authority] to breach said agreement." MMT moved for
summary judgment on RSSI's claim, and RSSI filed a
counter-motion for summary judgment.
trial court adjudicating RSSI's tortious-interference
claim entered summary judgment in favor of MMT and against
RSSI. The trial court found that RSSI pursued a claim for
MMT's alleged tortious interference with the 2012
Operating Agreement, but that the 2012 Operating Agreement
had been declared void ab initio in the prior suit. Because
RSSI could not establish the existence of a valid contract,
MMT was entitled to judgment in its favor as a matter of law
on RSSI's claim for tortious inference with the 2012
Operating Agreement. The trial court entered summary judgment
in favor of MMT on RSSI's petition. This appeal
raises three points. First, RSSI asserts that entry of
summary judgment was error because material facts remain in
dispute regarding the validity of the 2012 Operating
Agreement, RSSI's business expectancies with the Port
Authority, and MMT's improper inducement of the Port
Authority to breach its contractual agreements. Second, RSSI
claims the trial court erred in determining that Section
432.070 rendered void the 2012 Operating Agreement, and that
the contract's invalidity precluded RSSI from obtaining
relief. Third, RSSI argues that Section 432.070, and in
particular the statute's use of the phrase "other
municipal corporation, " is unconstitutionally vague.
review summary judgment de novo. Brentwood Glass Co. v.
Pal's Glass Serv., Inc., 499 S.W.3d 296, 300 (Mo.
banc 2016) (referencing ITT Commercial Fin. Corp. v.
Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo.
banc 1993)). "Summary judgment is appropriate when
'there is no genuine dispute about material facts and,
under the undisputed facts, the moving party is entitled to
judgment as a matter of law.'" Bishop &
Assocs., LLC v. Ameren Corp.. 520 S.W.3d 463, 468 (Mo.
banc 2017) (quoting Parr v. Breeden. 489 S.W.3d 774,
778 (Mo. banc 2016)). A defending party establishes
entitlement to summary judgment by demonstrating:
(1) facts negating any of the claimant's necessary
elements; (2) the claimant, after an adequate period of
discovery, has been unable, and will not be able, to produce
evidence sufficient to allow the trier of fact to find the
existence of any one of the claimant's elements; or (3)
there is no genuine dispute of the existence of facts
required to support the defending party's properly
pleaded affirmative defense.
Scottsdale Ins. Co. v. Addison Ins. Co., 448 S.W.3d
818, 826 (Mo. banc 2014) (citing ITT Commercial Fin.
Corp., 854 S.W.2d at 381). Each of these methods
individually establishes that the defending party's right
to judgment as a matter of law. Goerlitz v. City of
Maryville. 333 S.W.3d 450, 453 (Mo. banc 2011). This
Court will affirm the trial court's grant of summary
judgment on any reasonable theory supported by the record.
review, we view factual assertions in the light most
favorable to the non-movant and draw all reasonable factual
inferences in the non-movant's favor. Arbors at Sugar
Creek Homeowners Ass'n v. Jefferson Bank &
Trust Co.. 464 S.W.3d 177, 183 (Mo. banc 2015). But, we
accept as true the facts contained in the moving party's
affidavits or otherwise propounded in support of the moving
party's motion, unless the non-moving party's
response properly contradicts the proffered facts.
Goerlitz, 333 S.W.3d at 452-53. In the context of
summary judgment, a material fact is one from which the right
to judgment flows. Cent. Trust & Inv. Co. v.
Sienaboint Asset Mamt.. LLC. 422 S.W.3d 312, 320 (Mo.
banc 2014) (citing Goerlitz, 333 S.W.3d at 453).
"A genuine dispute exists when 'the issue, or
dispute, [is] a real and substantial one-one consisting not
merely of conjecture, theory[, ] and
possibilities.'" Brentwood Glass Co., 499
S.W.3d at 300 (quoting ITT Commercial Fin. Corp.,
854 S.W.2d at 378).
discuss RSSI's three points on appeal in reverse order.
Because Point Three challenges the constitutionality of a
state statute-and thereby potentially depriving this Court of
jurisdiction to consider the appeal-we will begin with Point
Three. Next, we will consider Point Two regarding whether
RSSI established a viable claim against MMT as a matter of
law. Finally, we will review Point One and decide whether
there are any material facts in dispute.
I.Point Three-The Constitutionality of ...