Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Louis County 16SL-CC3097
Honorable Judy P. Draper
Mary K. Hoff, J.
Jobe ("Jobe") appeals from the trial court's
grant of summary judgment in favor of AAA Trailer Services,
Inc. ("AAA") on its claim that Jobe, an at-will
employee, breached an enforceable non-competition agreement
("Non-Compete") and that AAA did not tortiously
interfere with Jobe's new employment. We reverse and
and Procedural Background
a full-service commercial tractor and trailer mechanical
service provider that also performs mobile mechanic services.
On August 7, 2015, Jobe was employed by AAA as a mobile
tractor and trailer mechanic. On November 11, 2015, Jobe
signed a "Confidentiality and Non-Competition,
Non-Solicitation Agreement For At Will Employees"
("Agreement"). In exchange for agreeing to the
Non-Compete, AAA promised to pay Jobe an additional
one-dollar per hour as well as continued at-will employment.
On June 28, 2016, Jobe terminated his employment with AAA.
Shortly thereafter, Jobe commenced employment with a new
employer. On July 5, 2016, Jobe received a letter from
AAA's attorney ("Letter") informing Jobe that
he was in violation of the Non-Compete. Allegedly, as a
result of AAA's actions and its Letter, Jobe was
terminated from his new employment.
August 23, 2016, Jobe filed a two-count petition against AAA
seeking a declaration that the Non-Compete part of the
Agreement was unenforceable (Count I) and damages for
tortious interference with a business expectancy based on
AAA's actions and its Letter (Count II). The parties
filed cross-motions for summary judgment. The trial court
granted AAA's motion for summary judgment, and denied
Jobe's motion. The trial court found that the Non-Compete
was valid and enforceable and that the Agreement was
supported by consideration. In addition, the trial court
found Jobe failed to show that AAA interfered with his
relationship with his new employer such AAA's actions and
its Letter constituted tortious interference with a contract.
Jobe now appeals.
propriety of summary judgment is solely an issue of law.
City of DeSoto v. Nixon, 476 S.W.3d 282, 286 (Mo.
banc 2016). Appellate courts review a grant of summary
judgment de novo. ITT Commercial Fin. Corp. v. Mid-Am.
Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc
1993). When considering appeals from summary judgments, we
review the record in the light most favorable to the party
against whom judgment was entered. Id.
criteria on appeal for testing the propriety of summary
judgment are no different from those employed by the trial
court to determine the propriety of sustaining the motion
initially." Frye v. Levy, 440 S.W.3d 405, 407
(Mo. banc 2014). "A 'defending party' may
establish a right to summary judgment by showing (1) facts
that negate any of the claimant's necessary elements; (2)
that the claimant, after an adequate period of discovery, has
not been able and will not be able to produce sufficient
evidence to allow the trier of fact to find the existence of
any one of the claimant's elements; or (3) that there is
no genuine dispute as to the existence of the facts required
to support the movant's properly pleaded affirmative
defense." Nail v. Husch Blackwell Sanders, LLP,
436 S.W.3d 556, 561 (Mo. banc 2014).
record below is reviewed in the light most favorable to the
party against whom summary judgment was entered, and that
party is entitled to the benefit of all reasonable inferences
from the record." Shiddell v. Bar Plan Mut.,
385 S.W.3d 478, 483 (Mo. App. W.D. 2012). "However,
facts contained in affidavits or otherwise in support of the
party's motion are accepted as true unless contradicted
by the non-moving party's response to the summary
judgment motion." Id. Even if the facts alleged
by the movant in a summary judgment motion are
uncontradicted, they must still establish a right to judgment
as a matter of law. Miller v. City of Wentzville,
371 S.W.3d 54, 57 (Mo. App. E.D. 2012) (citing
Kinnaman-Carson v. Westport Ins. Corp., 283 S.W.3d
761, 765 (Mo. banc 2009)). "'The movant bears the
burden of establishing both a legal right to judgment and the
absence of any genuine issue of material fact required to
support the claimed right to judgment.'"
Kinnaman-Carson, 283 S.W.3d at 765 (quoting
Lewis v. Biegel, 204 S.W.3d 354, 356 (Mo. App. W.D.
2006)). "The trial court is prohibited from granting
summary judgment, even if no responsive pleading is filed in
opposition to a summary judgment motion, unless the facts and
the law support the grant of summary judgment."
raises two points on appeal. In Point I, Jobe argues the
trial court erred in denying his motion for summary judgment
because the Non-Compete was invalid and unenforceable,
because the undisputed facts showed that AAA had no
legitimate business interest in the non-compete and provided
inadequate consideration. In Point II, Jobe argues the trial
court erred in granting summary judgment in favor of AAA on
Jobe's claim for tortious interference because the
undisputed facts showed that, through AAA's actions and
its Letter sent to Jobe threatening legal action, AAA
interfered with Jobe's new employment.
initial matter, we note that Jobe failed to comply with the
requirements of Rule 74.04 in his responsive pleadings. Rule
74.04(c) provides in pertinent part:
(2) …. The response shall set forth each
statement of fact in its original paragraph number and
immediately thereunder admit or deny each of movant's
A denial may not rest upon the mere allegations or denials
of the party's pleading. Rather, the response
shall support each denial with specific references to the
discovery, exhibits or affidavits that ...