Court of Appeals of Missouri, Eastern District, First Division
BERNARD F. EDWARDS, JR., Plaintiff/Appellant,
NORTHEAST AMBULANCE AND FIRE PROTECTION DISTRICT, Defendant/Respondent.
from the Circuit Court of St. Louis County Honorable John D.
Robert G. Dowd, Jr., P.J., Sherri B. Sullivan, J., and Kurt
S. Odenwald, J.
F. Edwards, Jr. (Appellant) appeals from the trial
court's summary judgment against him and in favor of
Northeast Ambulance and Fire Protection District (the
District). Appellant also appeals from the trial court's
denial of his motion to compel the District to arbitrate the
parties' contract dispute, motion to join Anthony D. Gray
(Gray), and Johnson Gray, LLC (Johnson Gray) as third-party
defendants, and motion to disqualify Gray and Johnson Gray as
defense counsel for the District. We dismiss the appeal for
failure to comply with the rules of appellate procedure.
and Procedural Background
District is a political subdivision of the state of Missouri
organized and existing under Section 321 et
and located in St. Louis County.
2007, Elbert Walton, Jr. (Walton) became the legal officer
for the District and Appellant became the District's
assistant legal officer via an employment contract. On May
12, 2009, Walton entered into an Amended Agreement of
employment with the District as its legal officer for the
period of May 1, 2009, through April 30, 2011. The Amended
Agreement was drafted by Walton and signed by Walton as the
legal officer and by Joseph L. Washington (Washington) as
President of the District's Board of Directors (the
Board) and Robert Edwards (Edwards) as Secretary of the Board.
The Amended Agreement authorized Walton to appoint an
assistant legal officer and Walton appointed Appellant to
Amended Agreement provided an annual retainer of $120, 000 to
be paid in monthly installments to Walton as legal officer
and $60, 000 to be paid to Appellant as assistant legal
officer. The Amended Agreement provided for additional
compensation at an hourly rate for legal services performed
and for out-of-pocket expenditures.
October 20, 2009, a District taxpayer, Kevin Buchek (Buchek),
filed a lawsuit, captioned Buchek v. Robert Edwards, et
al., Case No. 09SL-CC04530, against the District's
two remaining Board members, Edwards and Rhea Willis
(Willis), and Washington, who was no longer Chairman of the
Board and had recently become Fire Chief of the District.
Buchek alleged the Board members had authorized
unconscionable and illegal contracts with Appellant, Walton,
and Washington. Buchek sought a temporary restraining order
freezing the District's bank accounts pending the
court's appointment of a receiver. Walton represented
Edwards in the Buchek lawsuit and Appellant
November 2, 2009, the circuit court in Buchek issued
a preliminary injunction against the District permitting only
the payment of "normal operating expenditures, "
provided the expenditures were agreed to in writing by
Edwards and Willis and approved by the court.
November 19, 2009, the circuit court issued an Order and
Judgment keeping the preliminary injunction in full force and
effect, and limiting the Board's spending to "normal
expenditures" which previously needed court approval.
With a newly appointed third Board member, the court allowed
the Board to make "any lawful expenditures upon proper
motion…and agreed to by a majority vote of the
thereafter, Walton drafted three documents titled
"Settlement Agreement and Release" (Settlement
Agreements) and Resolution Nos. 107, 108, and 109, regarding
the termination of the employment contracts for Washington,
Walton, and Appellant, respectively. Resolution No. 109
provided Appellant and the District had "determined to
mutually terminate" the Amended Agreement of
Appellant's employment. Appellant's Settlement
Agreement and Resolution No. 109 stated the District owed
Appellant $90, 000 for "full settlement and release of
any and all claims arising out of and pertaining to his
contract and amended contracts of appointment or retention as
assistant legal officer with the District, including but not
limited to the outstanding retainers due and owing to the
assistant legal officer from November 1, 2009 up to and
through April 30, 2011…." On November 22, 2009,
the Board held a special closed board meeting and voted in
favor of Resolution Nos. 107, 108, and 109, and approved the
Settlement Agreements. Resolution 109 and its attached
Settlement Agreement were executed by Edwards and Willis as
November 24, 2009, the circuit court issued an Order and
Judgment, finding the District's expenditure of funds as
proposed by Resolution Nos. 107, 108, and 109 and the
Settlement Agreements did not represent "lawful
expenditures upon proper motion, " as required by the
November 19, 2009 preliminary injunction, and the actions
taken by the Board during the closed session on November 22
were void. The court also concluded the November 22 closed
meeting violated the Sunshine Laws. Appellant received a copy
of the court's November 24, 2009 Order and Judgment.
December 4, 2009, Appellant filed, in his capacity as
Washington's attorney, a Motion to Dismiss and Dissolve
the Court's Orders Entered on November 19, 2009, and
November 24, 2009. The circuit court denied the motion.
December 1, 2009, Appellant and the District entered into an
Agreement to Arbitrate any disputes related to
Appellant's employment contract as assistant legal
officer, the Amended Agreement, and the Settlement Agreement.
This agreement was executed by Edwards and Willis on behalf
of the Board. Also on that date, the Board adopted Resolution
No. 110, which terminated the employment of Washington,
Walton, and Appellant; called for the submission of said
former employees' employment contracts and the Settlement
Agreements to arbitration; appointed Gray as the
District's legal officer; and appointed Rufus J. Tate as
the District's special legal counsel. Resolution No. 110
included a provision acknowledging Resolution Nos. 107, 108,
and 109 and the related Settlement Agreements were declared
void by a court, and that such "declaration is subject
to appeal and dispute by both the District" and the
former employees affected by the declaration. Resolution No.
110 was signed by Edwards and Willis for the Board.
December 29, 2009, Walton filed a Petition for a Writ of
Prohibition in this Court, No. ED94107, challenging the
circuit court's jurisdiction in Buchek. On
January 4, 2010, this Court issued an Order denying the
Petition for a Writ of Prohibition.
February 7, 2011, the circuit court dismissed the
Buchek case without prejudice "with the consent
of all parties and for good cause shown[.]"
August 2014, Appellant filed a Petition against the District
seeking damages for breach of the Settlement Agreement. On
October 14, 2014, Appellant filed his First Amended Petition
December 24, 2014, Appellant filed his Second Amended
Petition against the District seeking damages for breach of
the Settlement Agreement. On that date, Appellant also filed
a Motion for Summary Judgment along with his Statement of
Uncontroverted Material Facts. On December 27, 2014, Appellant
filed a Motion to Disqualify Counsel for the District
asserting Gray would likely be a witness at trial or in
response to Appellant's Motion for Summary Judgment. On
February 2, 2015, the court denied Appellant's Motion to
February 3, 2015, Appellant filed his Second Motion for
Summary Judgment and Statement of Uncontroverted Material
February 17, 2015, the District filed its Answer, Affirmative
Defenses, and Counterclaims to Appellant's Second Amended
Petition. The District asserted collateral estoppel, res
judicata, impossibility, illegality, ultra vires,
unconscionability, undue influence, misrepresentation,
incapacity, lack of consideration, and sovereign immunity as
affirmative defenses to Appellant's claim. The District
also brought counterclaims of legal malpractice and
fraudulent misrepresentation against Appellant.
February 19, 2015, Appellant filed his "Answer to
Counterclaim, Affirmative Defenses, Counterclaims and
Cross-Claims." On that date, Appellant also filed a
Motion to Join Additional Parties (Motion to Join), seeking
to join Gray, Richard K. Johnson, Crista R. Johnson, and
Johnson Gray as parties in order ...