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Edwards v. Northeast Ambulance and Fire Protection District

Court of Appeals of Missouri, Eastern District, First Division

May 1, 2018

BERNARD F. EDWARDS, JR., Plaintiff/Appellant,

          Appeal from the Circuit Court of St. Louis County Honorable John D. Warner, Jr.

          Before Robert G. Dowd, Jr., P.J., Sherri B. Sullivan, J., and Kurt S. Odenwald, J.

          PER CURIAM.


         Bernard 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.

         Factual and Procedural Background

         The District is a political subdivision of the state of Missouri organized and existing under Section 321 et seq.[1] and located in St. Louis County.

         In 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)[2] as Secretary of the Board. The Amended Agreement authorized Walton to appoint an assistant legal officer and Walton appointed Appellant to this position.

         The 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.

         On 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 represented Washington.

         On 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.

         On 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 board."

         Shortly 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 Board members.

         On 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.

         On 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.

         On 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.

         On 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.

         On February 7, 2011, the circuit court dismissed the Buchek case without prejudice "with the consent of all parties and for good cause shown[.]"

         In 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 for damages.

         On 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.[3] 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 Disqualify Counsel.

         On February 3, 2015, Appellant filed his Second Motion for Summary Judgment and Statement of Uncontroverted Material Facts.[4]

          On 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.

         On February 19, 2015, Appellant filed his "Answer to Counterclaim, Affirmative Defenses, Counterclaims and Cross-Claims."[5] 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 ...

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