Jerry Anderson & Associates, Inc. v. Gaylan Industries, Inc.

805 S.W.2d 733, 1991 Mo. App. LEXIS 446, 1991 WL 38105
CourtMissouri Court of Appeals
DecidedMarch 26, 1991
DocketNo. WD 43015
StatusPublished
Cited by6 cases

This text of 805 S.W.2d 733 (Jerry Anderson & Associates, Inc. v. Gaylan Industries, 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
Jerry Anderson & Associates, Inc. v. Gaylan Industries, Inc., 805 S.W.2d 733, 1991 Mo. App. LEXIS 446, 1991 WL 38105 (Mo. Ct. App. 1991).

Opinion

ULRICH, Judge.

Jerry Anderson and Associates, Inc., (Associates) appeals the trial court’s judgment sustaining defendant’s motion for directed verdict at the close of plaintiff’s case. Associates sued Gaylan Industries, Inc. (Gay-lan) claiming it breached the parties’ contract by failing to pay Associates commissions on certain sales that Associates allegedly generated. The trial court’s judgment is affirmed.

In 1983, Jerry Anderson was the sole officer, director and stockholder of Associates. He conducted business as a manufacturers’ representative for Associates calling on various retail stores, primarily home improvement retailers. Gaylan, a corporation headquartered in California, manufactured oak vanities for bath and dressing rooms. In November 1983, Bill Neveling, Gaylan’s sales manager, contacted Associates seeking Associates’ assistance in establishing a corporate program with Payless Cashways, Inc., a Kansas City headquartered hardware and home improvement company. The proposed corporate program was an arrangement whereby all Payless Cashways stores nationwide would retail Gaylan’s vanities. Jerry Anderson, as president of Associates, had dealt with Payless Cashways as a manufacturers’ representative for many years, and Mr. Neveling apparently believed that Mr. Anderson’s contacts with Payless Cash-ways would assist in establishing the corporate program.

On November 21, 1983, Associates received a letter of appointment from Gaylan designating Associates as its manufacturer’s representative. Pursuant to the parties’ agreement, Gaylan assigned Associates a sales district and paid Associates a five percent commission on all sales within that district. Additionally, the agreement provided for Associates to organize and maintain the corporate program with Pay-less Cashways, for which Associates would receive a two percent commission on all Payless Cashways’ sales of Gaylan’s vanities.

In January 1984, Mr. Anderson met with Rick Woods, a Gaylan employee, to report progress in establishing the corporate program. At this meeting, Mr. Anderson informed Mr. Woods that Associates was [735]*735considering a merger with Mid-Continent Marketing. According to Mr. Anderson’s testimony, he told Mr. Woods that “if the merger does not work out, I still want to continue representing Gaylan.... I have got the corporate program almost set, and I want to make sure that I get my two percent [commission].” The following day, Payless Cashways informed Mr. Anderson and Mr. Woods that it would participate in Gaylan’s proposed corporate program.

In February 1984, Associates and Mid-Continent Marketing merged under the name Mid-Continent Management, Inc. (Mid-Continent). Mr. Anderson, on behalf of Associates, notified Gaylan of the completed merger in a letter which stated in part:

Please change all of your records accordingly. All memo, commissions, and correspondence should be sent to the general offices and we will distribute to each salesmen [sic].

Gaylan made the first two commission checks following the merger payable to Associates and Mr. Anderson, as president of Associates, endorsed these checks to Mid-Continent. According to Mr. Anderson’s testimony, Gaylan made all later commission checks payable to Mid-Continent per his request.

In December 1984, Mr. Anderson encountered problems at Mid-Continent. These problems eventually led to Mr. Anderson leaving Mid-Continent in March 1985. Upon his departure, Mr. Anderson re-established Jerry Anderson and Associates, Inc., and notified Gaylan of his intention to continue business. Mr. Anderson insisted that Gaylan pay Associates, rather than Mid-Continent, the two percent commission on all sales made pursuant to Payless Cash-ways’ corporate program after Mr. Anderson terminated his relationship with Mid-Continent. Gaylan, however, continued to pay all commissions to Mid-Continent pursuant to Anderson’s earlier directive. Gaylan paid commissions to Mid-Continent from the time Anderson left Mid-Continent through 1987. Commissions paid by Gaylan to Mid-Continent during this period of time amounted to approximately $150,000 and are the subject of this lawsuit.

Associates filed suit against Gaylan alleging that Gaylan breached the contract between Gaylan and Associates by failing to pay Associates the commissions. At trial, Associates’ evidence consisted of Mr. Anderson’s testimony, various exhibits and Gaylan’s interrogatory answers. At the close of Associates’ evidence, Gaylan moved for directed verdict and suggested several grounds to the trial court supporting its motion. Among the grounds suggested, Gaylan contended that Mr. Anderson's instructions to it to pay all commissions to Mid-Continent estopped Associates from claiming entitlement to further commissions. The trial court granted the motion and directed the verdict for Gaylan.

On appeal, Associates contends the trial court erred in sustaining Gaylan’s motion for directed verdict. In particular, in response to Gaylan’s estoppel claim, Associates contends it is not estopped from claiming entitlement to the commissions because the evidence failed to prove that it had previously acted inconsistently with its current claim to the commissions, and the evidence failed to establish that Gaylan would suffer any injury should judgment be granted compelling it to pay to Associates the amount of the commissions claimed.

A verdict should be directed for defendant only when no issues of fact remain for the jury to decide. Teachenor v. De Priest, 600 S.W.2d 122, 124 (Mo.App. 1980). Generally, a directed verdict will not be granted to the party carrying the burden of proof. Ramsey v. Vance, 622 S.W.2d 774, 776 (Mo.App.1981). However, an exception to this general rule is recognized when plaintiff’s evidence establishes that recovery is barred by an affirmative defense. See Kauble v. MFA Mutual Ins. Co., 637 S.W.2d 831, 833 (Mo.App.1982); Overfield v. Garner, 595 S.W.2d 446, 447 (Mo.App.1980).

Similarly, in limited situations the trial court is justified in directing a verdict for defendant based on estoppel. Kappel Fabrics, Inc. v. R.B. Jones & Sons, Inc., 402 S.W.2d 49, 56 (Mo.App.1966). A party [736]*736claiming estoppel carries the burden of proving his claim by clear and convincing evidence. Willman v. Phelps, 631 S.W.2d 63, 67 (Mo.App.1982). However, “[wjhere the facts are undisputed and only one inference may be drawn therefrom, the question of estoppel is one of law,” and a directed verdict is proper. Kap-pel Fabrics, 402 S.W.2d at 56 (quoting 31 C.J.S. Estoppel § 163, p. 784). ,

A party claiming equitable estoppel must demonstrate three essential elements: (1) an admission, statement or act that is inconsistent with the claim subsequently asserted and sued upon; (2) action by the party claiming estoppel on the faith of such admission, statement or act; and (3) injury to that party if the other party is permitted to contradict or repudiate his prior admission, statement or act. Willman, 631 S.W.2d at 67.

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805 S.W.2d 733, 1991 Mo. App. LEXIS 446, 1991 WL 38105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerry-anderson-associates-inc-v-gaylan-industries-inc-moctapp-1991.