Déjá Vu of Missouri, Inc. v. Talayna's Laclede's Landing, Inc.

34 S.W.3d 245, 2000 Mo. App. LEXIS 1852, 2000 WL 1808101
CourtMissouri Court of Appeals
DecidedDecember 12, 2000
DocketNo. ED 77671
StatusPublished
Cited by4 cases

This text of 34 S.W.3d 245 (Déjá Vu of Missouri, Inc. v. Talayna's Laclede's Landing, Inc.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Déjá Vu of Missouri, Inc. v. Talayna's Laclede's Landing, Inc., 34 S.W.3d 245, 2000 Mo. App. LEXIS 1852, 2000 WL 1808101 (Mo. Ct. App. 2000).

Opinion

GARY M. GAERTNER, Sr., Presiding Judge.

Appellant, Déjá Vu of Missouri, Inc., (“appellant”), appeals from the judgment of the Circuit Court of the City of St. Louis granting a motion for summary judgment in favor of the respondents, Ta-layna’s Laclede’s Landing, Inc. and Michael P. Faille, (collectively, “respondents”). We affirm.

Appellant operated numerous nightclubs around the nation exhibiting nude and semi-nude exotic dancing. In 1990, appellant came to St. Louis to scout for a location for a nightclub, believing St. Louis had a promising market for this type of entertainment. At this time, respondents owned and operated a nightclub and restaurant on Laclede’s Landing, which was operating at a significant loss. The appellant was introduced by his real estate agent to respondents. Almost immediately, negotiations between the parties began. In his deposition, Michael Faille testified that originally the negotiations contemplated a buy-out of Talayna’s by appellant. These negotiations eventually led to the drafting of the “General Agreement.”

On February 15, 1991, Lee Klein, attorney for appellant, provided his client with a written opinion of the proposed structure of the relationship as contained in the “General Agreement.” In the opinion, Mr. Klein wrote, “I am generally uncomfortable with the structure of this transaction. It would appear that what is being set up is an intent to create a ‘sham’ situation to permit Déjá Vu to operate its business without either the necessity of obtaining formal approval of, or the transfer of applicable liquor licenses ...” This letter sent the parties back to the drafting board, where they eventually hammered out the “Consulting and Entertainment Agreement,” (“the contract”), at issue in this case.

The contract provided appellant would engage in “consultation, entertainment and miscellaneous management” pursuant to appellant’s “concept.” This “concept” included managing adult restaurants, serving alcoholic beverages, featuring nude and/or semi-nude servers, and “burlesque entertainment” similar to other Déjá Vu establishments. In the contract, appellant was appointed sole and exclusive manager of the day-to-day operation of the said business. The duties set forth in the contract included: hiring personnel, employee apparel, purchasing of all inventory and equipment, sale and collection of all proceeds, and payment of all expenses incurred, including all taxes, insurance, salaries, rent, etc. In addition, the contract stated:

[Appellant] shall not provide management in connection with, nor be the agent of [respondent] with respect to, the operation of the bar, the supplying or serving of any alcoholic beverages, or in connection with any liquor licenses which are to be secured and/or maintained by [respondents] ... it being expressly understood and agreed between the parties that, regardless of the fact that [appellant’s] employees may actually handle and operate the purchasing, serving, selling and storage of some or all of the liquor upon the property ... [respondents] shall have exclusive right, authority and control over all liquor licenses.

The contract obligated respondents to maintain their liquor lieense and to use their best efforts to defend in any action if the license was revoked, denied, terminated, withdrawn, etc. Further, if the liquor license was ever revoked, etc., for any reason other than appellant’s actions, that would have constituted a material breach of the contract; and appellant had the right to immediately terminate the agreement.

Appellant agreed to advance respondents $319,000 in anticipation of net profits from the business; $125,000 of which was [248]*248in the form of a promissory note. Appellant also paid for substantial improvements on the property. In addition, appellant had contracted for the option to purchase all the assets, stock, and the leasehold interest of the business. In the event the appellant chose to exercise any of these options, the principal amount of the promissory note would be reduced by $4,500 per option. The agreement provided respondents would receive no compensation unless the business’ gross receipts exceeded three million dollars. In that case, respondents would receive five percent of the net profits.

A few months after the business reopened under appellant’s management, the Excise Commissioner of the City of St. Louis and the Supervisor of Liquor Control of the State of Missouri brought charges against respondents. They alleged respondents had transferred ownership of their establishment to appellant and on occasion permitted lewd or indecent conduct to take place on the premises in violation of the laws of the State of Missouri and the rules and regulations of the city of St. Louis. Proceedings were never brought against respondents for these allegations because Mr. Faille voluntarily surrendered his liquor license at the said location to prevent the liquor licenses of his other business interests from being revoked. Without a liquor license, the nightclub was not viable and therefore, immediately ceased operations. Appellant then brought suit against respondents for breach of contract, fraud, negligent misrepresentation, unjust enrichment, and rescission.

Respondents moved for summary judgment arguing the contract was in violation of various state laws and local ordinances; and therefore, void as a matter of law. The trial court granted summary judgment in favor of the respondents without making any findings of facts or conclusions of law.1

Appellate review of a motion for summary judgment is essentially de novo. ITT Commercial Finance v. Mid-Am. Marine, 854 S.W.2d 371, 376 (Mo.Banc 1993). Appellate courts review the record in light most favorable to the party against whom judgment was entered. Id. Summary judgment “shall be entered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 74.04(c).

On appeal, appellant argues the trial court erred in sustaining the motion for summary judgment in favor of respondents. Appellant contends it presented sufficient evidence to support the legality of the contract and presented a genuine issue of material fact to overcome a motion for summary judgment.

The court will look to the contract alone to determine the intent of the parties. Simul Vision Cable v. Continental Cablevision, 983 S.W.2d 600, 604 (Mo.App. E.D.1999). However, if the contract is ambiguous, “the court can consider extrinsic or parol evidence, including the execution of the contract and the interpretation given to the contract by the parties.” Id. at 604. A contract is ambiguous when there is duplicity, indistinctness, or uncertainty in the meaning of words used in the contract. Krombach v. Mayflower Ins. Co., Ltd., 827 S.W.2d 208, 210 (Mo.banc 1992). “Whether a contract is ambiguous is a question of law.” Simul 983 S.W.2d at 604.

The language used in the contract at issue in this case is ambiguous.

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Cite This Page — Counsel Stack

Bluebook (online)
34 S.W.3d 245, 2000 Mo. App. LEXIS 1852, 2000 WL 1808101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deja-vu-of-missouri-inc-v-talaynas-lacledes-landing-inc-moctapp-2000.