The Law Office of Kurt H King

January 6, 2021

Contracts–Agreements–are Sufficiently Definite and Enforceable even without all the “Details and Particulars”

Case on point is Warren v. Tribune Broadcasting Company, LLC, 512 S.W.3d 860 (Mo. Ct. App. W.D. 2017).  There, Tribune appealed from a jury verdict awarding Warren an additional $34,000 of bonus on her count for breach of an oral agreement/contract.  The defense claimed that the bonus compensation arrangement was too vague and indefinite to constitute a valid and binding contract.  There the bonus formula varied as set by Tribune.

After listing five essential elements of a contract—(1) parties competent to contract, (2) proper subject matter, (3) legal consideration, (4) mutuality of agreement, (5) mutuality of obligation—the Western District of the Missouri Court of Appeals addressed Tribune’s argument that the fourth element of mutuality of agreement was absent because while Tribune contracted with Warren to pay her a bonus, the manner in which bonus was calculated varied.

The Court of Appeals rejected Tribune’s argument that the bonus agreement was too vague and indefinite to form a binding contract, instead finding a valid oral agreement existed such that if sales exceeded 101% of the revenue goal for that year, then Warren would receive a bonus that was determined by the formula then set by Tribune to compute bonuses.  The Court reasoned:

“While a contract’s essential terms must be sufficiently definite, the detail or particulars of the contract need not be.”

*                                              *                                              *

“[A] court is guided by principles of law applied with common sense and in the light of experience.”

      *                                              *                                              *

“A contract should not be held void for uncertainty if there is a possibility of giving meaning to the agreement.”

512 S.W.3d at 864-65 (inside quotations and parentheses omitted).

The takeaway from the Warren v. Tribune Broadcasting case is it is not necessary that the parties’ agreement initially specify the precise steps by which plaintiff’s bonus would be calculated, as that may be set later. The contract/agreement was definite enough without the details and particulars as to how the bonus would be calculated since the parties did in fact agree that a bonus would be paid under certain circumstances.

But, for an agreement to be definite enough to be enforced by a Missouri court, essential terms such as (1) the price or compensation to be paid, and (2) what the other party is to perform or provide in return for that price/compensation, certainly should be clearly stated. Olathe Millwork Company v. Dulin, 189 S.W.3d 199 (Mo. Ct. App. W.D. 2006) (no valid contact to build home due to there being only an estimated purchase price, as well as inaccurate and incomplete specifications of labor and materials to not just reconstruct the owners home after it was destroyed by fire, but rather build a significantly larger house with upgraded materials and components).

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Missouri 64068; 816.781.6000

Litigation and General Matters

December 1, 2020

Repossession and Commercially Reasonable Sale

It is not enough in Missouri to simply say in your petition to the Court that the sale of repossessed property was “commercially reasonable.” To survive a motion to dismiss, the petition must include facts that show the sale was in fact conducted through a commercially reasonable process. Language stating the method, manner, time, place, and terms must be in the petition. For example, a solid petition describes how the repossessed property was advertised and placed for sale–Craigslist, Facebook Marketplace, consigned to a business that sells those items, etc.–whether and how bids were solicited and accepted, the time and place of sale.

Without these facts stated in the petition, the Court could–and should–dismiss the repossessing creditor’s petition for failure to state a cause of action upon which relief may be granted. That was the ruling of Western District of the Missouri Court of Appeals in Ford Motor Credit Company v. UpDegraff, 218 S.W.3d 617, 623 ( Mo. Ct. App. 2007, an appellate decision followed recently in a case handled by this writer.

In the UpDegraff case, filed in the Circuit Court of Clay County, Missouri, the Court of Appeals dismissed Ford Motor Credit Company’s (“Ford”) case for lack of jurisdiction because Ford failed to sufficiently plead facts regarding commercial reasonableness of its sale of the vehicle repossessed from Ms. UpDegraff. 

Ford’s attempt to remedy its deficient petition by putting a dealer account manager on the stand who testified as to the details of the sale of the Ford Focus was rejected by the higher court on appeal as beyond the scope of the pleadings (an objection made during trial in Clay C:ounty) which failed to adequately state facts as to how the vehicle was sold by Ford Motor Credit. 

In essence, by failing to plead the “method, manner, time, place, and other terms” of the its sale of collateral, Ford failed to state a claim upon which relief could be granted.  As no claim was stated, Ford made no case and the Western District dismissed the appeal, remanding with instructions that the Clay County trial judge dismiss the case in full.

So, be thorough and plead the necessary facts if you are the creditor, as the debtor in default may well defeat the case for a deficiency judgment by filing a motion to dismiss for failure to state a claim.

Kurt H. King, Law Office of Kurt H. King

816.781.6000, 20 E. Franklin, Liberty, Missouri 64068; kurthking@swbell.net

Debtor/Creditor representation, Personal Injury, Workers Compensation, Business Litigation, Employment Discrimination/Retaliation representation, General Matters

January 31, 2010

Welcome

Filed under: Welcome — kurthking @ 1:42 pm

Welcome to Kurt’s Take on Law.

Click on the recent posts or categories in the Sidebar to the right to see the blog posts.  Hope you find something new of value.  Enjoy!

Kurt is a licensed attorney in Kansas and Missouri and has been practicing law for over 30 years!  Stop by this blog to expand your mind on legal topics like family law, personal injury, bankruptcy, divorce, malpractice, workman’s comp, and much more!  Remember, knowledge is power!

IMPORTANT:  All the information on this Blog is general.  Law changes and what you read here may become out of date.   Nothing is meant to form an attorney-client relationship as the facts of each case differ and this information is not tailored to apply to any one reader.  You should contact me or another lawyer to determine what applies in your case.  This blog is simply to post information which may be of interest.

Kurt H King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Pesonal Injury,, Child Custody and Support, Divorce and Modification, Workers’ Compensation

www.kurthking.com

January 6, 2021

Oral Agreements Can Be Valid Contracts in Missouri

Missouri’s Statute of Frauds requires certain agreements/contracts to be in writing to be enforceable:

432.010.  Statute of frauds — contracts to be in writing. — No action shall be brought to charge any executor or administrator, upon any special promise to answer for any debt or damages out of his own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of another person, or to charge any person upon any agreement made in consideration of marriage, or upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof, for a longer time than one year, or upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, and no contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract.

Fortunately, courts cut back the Statute by laying down several exceptions to its rule. Here are two exceptions that enable oral agreements to be binding contracts upheld in employment disputes by Missouri courts:

(1)   Full Performance–oral contracts are enforced where the plaintiff employee has fully performed since it is patently unjust to allow an employer to cry “no contract” after the employee has done his work for the employer. Koman v. Morrissey, 517 S.W.2d  929  (Mo. 1974) (concluding paragraph);

(2)  At Will Employment–An oral agreement of “at will” employment is an exception because both the employer and the employee have the right to terminate anytime, including within the one year. This exception applies even if the employment lasts longer than a yearKoman, supra; Null v. K & P Precast, Inc., 882 S.W.2d 705 (Mo. Ct. App. E.D. 1994).

Obviously, many workers hire on based on the employer’s spoken promise and a handshake–“you’re hired, be here Monday at 8 a.m., your pay is ‘x’.” Courts recognize this fact and make exceptions to the Statute of Frauds so that employees are paid in these situations. After all, Missouri law obligates the employer “to pay terminated employees for all wages, bonuses and/or commissions earned by the employee prior to the termination of the employment.”  Pratt v. Seventy-One Hawthorne Place, 106 S.W.3d 608 (Mo. Ct. App. W.D. 2003).

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Litigation, Employment Matters, General Practice

December 1, 2020

Amend Your Divorce Judgment for Bump Up in Missouri PERS/PEERS Retirement Payments

Recently, two elderly former educators who taught in Missouri public schools for years filed a joint motion to amend their divorce judgment to provide that neither of them would continue to have any survivorship rights whatsoever in the PERS/PEERS retirement of the other. By the Court issuing an amended judgment of dissolution of their marriage, both the former husband and former wife received a “bump up” in their monthly retirement payments from PERS/PEERS.

This is because effective August 28, 2019, Missouri lawmakers added to subsection 3 of sections 169.141 and 169.715, RSMo, to enable persons whose marriage was dissolved before September 1, 2017, to receive increased monthly retirement benefits:

            “3.  Any person receiving a retirement allowance under sections 169.010 to 169.140 who elected a reduced retirement allowance under subsection 3 of section 169.070 with his or her spouse as the nominated beneficiary may have the retirement allowance increased to the amount the retired member would be receiving had the retired member elected option 1 if:

            *                                              *                                              *

(2)  The marriage of the retired person and the nominated spouse was dissolved before September 1, 2017, and:

                        *                                              *                                              *

            (b) The dissolution decree does not  provide for sole retention by the retired person

            of all rights in the retirement allowance and the parties obtain an amended or modified

            dissolution decree after September 1, 2017, which provides for sole retention by the

            retired person of all rights in the retirement allowance . . . .”

Other folks who want to increase their monthly PERS/PEERS payments may also want to file a motion to amend the divorce judgment.

Kurt H. King, Law Office of Kurt H. King

816.781.6000; 20 E. Franklin, Liberty, Missouri 64068; kurthking@swbell.net

Family Law, Business and Injury Litigation, Employment Discrimination/Retaliation; General Matters

April 20, 2020

Rent Payments–The Covid-19 Virus

Filed under: Bankruptcy,Litigation,Real Estate — kurthking @ 5:06 pm
Tags: , , , , , ,

How do we pay rent when we can’t work due to stay-home orders concerning the Covid-19 virus?

We all hope to be back to work full tilt this May, but many workers may not see that happen.  Hopefully, our landlords will be flexible and adjust or abate rent while workers are laid off or unable to go to work due to “lock-down” stay-at-home orders.

Working with the landlord is key, but landlords and tenants should read their leases if they have one.  The lease may have Act of God or force majeure clauses that touch on what happens with rent in a pandemic situation.   If so, the words of those provisions are important to read and study.

Government orders and laws may also apply, such as “no eviction” stay mandates by the President and state and federal government, designed to not force tenants out on the street while the country is trying to minimize new infections of the Covid-19 virus.  However, those stay orders just postpone matters and rent will surely be due at some point down the road when stays are lifted, resulting in a mass of eviction cases.

If you have questions or need guidance on this area, please call so we can see whether there is a way to help you.  Thank you.

Kurt H. King  816.781.6000

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

Practice Areas–Bankruptcy Chapter 7, Landlord-Tenant disputes, Workers’ Compensation, Personal Injury, Family Law, Estate Planning, Employee Discrimination, General Matters

 

Workers’ Compensation Cases from the Covid-19 Virus

Some employers may be exposing their workers to the virus without proper protection.  As a result, a worker may be infected and become ill, perhaps very ill or even die, from such increased exposure.

In these situations, the worker may well have a workers’ compensation injury claim to cause the employer (its insurer usually) to provide–at its cost–medical care, weekly compensation while off work, plus an award of money to compensate the worker for his or her permanent disability.   The law also mandates the employer/insurer pay compensation to spouse and/or dependents in cases where the employee dies from the injury, or in this case, the virus.

I handle Missouri and Kansas workers’ compensation claims and would be glad to speak with you about whether you have a viable claim.   These claims are typically handled on a 25% contingency fee basis, so there is no fee unless you receive compensation on the claim.  However, clients are generally responsible for reimbursing the out-of-pocket expenses for the costs of obtaining medical records, examination and rating by a doctor if needed, and the like.

It is important to act promptly as there are time limits that will defeat your claim if you wait past the deadlines!

Please call if you think this situation may apply to you!  Thank you.

Kurt H. King 816.781.6000

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

Practice Areas–Workers’ Compensation, Personal Injury, Chapter 7 Bankruptcy, Estate Planning, Family Law, Landlord-Tenant, General Matters

Bankruptcy Chapter 7 and the Covid-19 Virus

Filed under: Bankruptcy,Litigation — kurthking @ 4:20 pm
Tags: , , , ,

Many folks may be out of work and in a financial bind given the stay-home orders dealing with the Covid-19 virus.

Bankruptcy is one possible solution for some folks to wipe out debt and a gain a fresh start.

I handle such Chapter 7 bankruptcy cases as opposed to Chapter 13 bankruptcies which involve a repayment plan stretched out over years.

There is no charge for the initial phase of consultation to see if Chapter 7 is a good fit for you.  My typical attorney fee ranges from $1,500 to approximately $3,000 depending on the complexity of the case, number of creditors, whether the client needs extensive help filling out the necessary forms, etc.  In addition, the Court currently charges an initial filing fee of $335 for a new Chapter 7 case.

Chapter 7 bankruptcy generally stops creditors from collecting money from you (such as by garnishing your paycheck or taking the money in your bank account), as soon as the case is filed.  Cases generally take about 120 days from start to finish.

Please call if think we can help you!

Kurt H. King, 816.781.6000

Law office of Kurt H. King, 20 E. Franklin, Liberty,  Clay County, Missouri

Practice Areas–Bankruptcy, Landlord-Tenant, Personal Injury, Workers’ Compensation, Estate Planning (Wills, Beneficiary Deeds, Powers of Attorney, Trusts), Family Law & General Matters

September 5, 2018

Contract Workers Are Often Employees of the Company For Which They Work

A staffing agency places you to work fairly long-term for a company.  The company treats you as an independent contractor, and you sign numerous documents to that effect.  The company pays a set amount to the staffing agency which pockets part and pays you, along with payroll taxes and insurance.  Are you the company’s employee?  Often the answer is YES.

Here is some law on the issue:

A.  EEOC

In its “Enforcement Guidance: Application of EEO Law to Contingent Workers Placed by Temporary Employment Agencies and Other Staffing Firms,” EEOC Notice No. 915.002 (December 3, 1997), the agency declares on page 7 (cases in support cited at footnote 14):

A client of a temporary employment agency typically qualifies as an employer of the temporary worker during the job assignment, along with the agency.  This is because the client usually exercises significant supervisory control over the worker.”

               The EEOC there gives this example on pages 7-8:

 

Example 3: A staffing firm hires charging party (CP) and sends her to

perform a long term accounting project for a client.  Her contract

               with the staffing firm states that she is an independent contractor.

CP retains the right to work for others, but spends substantially all

of her work time performing services for the client, on the client’s

premises. The client supervises CP, sets her work schedule, provides the

necessary equipment and supplies, and specifies how the work is to be

accomplished.  CP reports the number of hours she has worked to the

staffing firm.  The firm pays her and bills the client for the time

worked.  It reviews her work based on reports by the client and has the

right to terminate her if she is failing to perform the requested

services.  The staffing firm will replace her with another worker if

her work is unacceptable to the client.

              In these circumstances, despite the statement in the contract that

              she is an independent contractor, both the staffing firm and the client 

              are joint employers of CP.

 

As the EEOC indicates, it makes no difference that documents state that the worker is an independent contractor and not an employee.  Substance trumps form.

B.  Missouri Case Examples 

Wright v. Habco:  Missouri sides with the EEOC, its Supreme Court having dealt with this set of facts long ago in Wright v. Habco, 419 S.W.2d 34 (Mo. 1967).    There plaintiff Wright fell off a scaffold and sued Habco at common law for his injuries.  The trial court sustained Habco’s motion for summary judgment, ruling plaintiff’s exclusive remedy was under workers’ compensation law.  The Missouri Supreme Court affirmed.

When he fell, Manpower, Inc. employed Wright.  Manpower furnished workers to its customers, usually on a temporary basis.   Manpower sent Wright out to work for defendant Habco on a project to extensively renovate a building.

Manpower furnished no equipment to plaintiff Wright, merely instructing him as to who to report to at Habco to begin his work.  Habco’s foreman bossed Wright on the job, directing him as to what work to do.  Without question, Habco controlled the work done by Wright.

Manpower paid Wright $1.25 an hour; Habco in turn paid Manpower $1.97 per hour that Wright worked.  Manpower paid for workers’ compensation and unemployment insurance on Wright and its other workers, and withheld social security and income tax withholdings from Wright’s wages.

Habco’s president stated in his deposition that he did not consider Wright to have been its employee, but rather an employee of Manpower.

Regardless, the Court held Wright to have been an employee of Habco, and his relief limited to that afforded him under Missouri Workers’ Compensation Law.

Tolentino v. Starwood Hotels & Resorts Worldwide:  More recently, the Supreme Court held defendant Starwood (owner of Westin Hotel Management which operates the Westin Crown Center hotel in Kansas City, Missouri) to be the joint employer of plaintiff Tolentino, a housekeeper whose services Starwood contracted with a temporary staffing agency to receive.  437 S.W.3d 754 (Mo. banc 2014).

The arrangement was that Starwood informed GLS (the temporary staffing agency) how many housekeepers the hotel needed and GLS provided them.   Starwood paid GLS $5 per room cleaned.  GLS was to pay the housekeepers and satisfy payroll withholdings requirements.  GLS paid Tolentino $3.50 per room cleaned.

In February 2008, GLS assigned Tolentino to clean at the hotel.  In April of that year, Starwood notified GLS that it no longer wanted Tolentino to work as a housekeeper at the hotel because he failed to complete his work in a timely fashion.

Unfortunately, GLS failed to comply with Missouri’s Minimum Wage Law.  Tolentino ended up filing a class action in Missouri state court against Starwood as his employer liable under the Law.

Starwood moved for summary judgment, denying that it was Tolentino’s employer.  The trial court granted the motion.  Tolentino appealed to the Western District of the Court of Appeals, asserting that there were genuine issues of material fact as to whether GLS and Starwood were his joint employers.

The Court of Appeals analyzed the facts with four “functional” factors used by federal courts in cases involving multiple alleged employers:

(1) who has the power to hire and fire the worker;

(2) who supervises and controls the worker’s schedule and conditions of work;

(3) who determines the rate and method of payment of the worker;

(4) who maintains work records.

 

In Tolentino’s case, the appellate court found issues of fact existed regarding the hotel’s (Starwood) authority to hire and fire, finding that by directing GLS not to assign Tolentino to the hotel any longer, as a practical matter Starwood could prevent the worker from working for the hotel.  Factor One favored Tolentino in the eyes of the Court.

Factor Two regarding supervision and control was also decided in favor of the worker—the hotel assigned rooms to be cleaned by particular housekeepers, upheld its cleaning standards, inspected the rooms for cleanliness, and required unsatisfactory work to be redone.  Further, the work was simple and easily supervised.

The court also ruled Factor Three on rate and method of payment in favor of the worker, noting that the hotel paid GLS, which in turn paid the housekeepers.  But, the hotel established, and raised, the pay per room arrangement, indicating the hotel retained substantial control over the rate and method of pay.

Tolentino also raised issue of fact with regard to Factor Four concerning maintenance of work records, asserting that the hotel maintained time sheets and productivity records which it used to “fire” him from working for the hotel/Starwood.

Based on these factors, the court of appeals reversed and remanded for trial.         

C.  Eighth Circuit

Beaver v. Jacuzzi Brothers, 454 F.2d 284 (CA8 1972):  This diversity case from Arkansas arose when a temporary worker from Kelly Girl, Inc., fell on a greasy floor while on temporary assignment to Jacuzzi Brothers.  She sued Jacuzzi Brothers for common law tort.  The District Court denied her, finding she was an employee of Jacuzzi Brothers and limited to workers compensation benefits based on the right of control of her performance Jacuzzi Brothers had over the work of the temporary employee.

The Eighth Circuit affirmed, observing:

“As a matter of common experience and of present business practice in our economy, it is clear that an employee may be employed by more than one employer even while doing the same work.”

In conclusion, workers may actually be the company’s employee–temporary or permanent–and entitled to protection by law from retaliation and discrimination.

Kurt H. King, Missouri Attorney

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Retaliation & Discrimination, Litigation, General Matters

Missouri’s Whistleblower Law Applies Only to At-Will Employment, and Not Where Contract Provision Limits the Employer’s Right to Discharge/Terminate

Missouri’s new (08.28.2017) Whistleblower Protection Act, 285.575, RSMo, states that it ‘is intended to codify the existing common law exceptions to the at-will employment doctrine,’ ‘limit their future expansion by the courts,’ ‘and provide the exclusive remedy for any and all claims of unlawful employment practices.’”

The words of  the WPA limits its application to “at-will” employment.  What about cases where there a contract provision limits the reasons for which an employee may be lawfully terminated?  Does the WPA apply to wrongful termination for violation of public policy in a contract setting?  Apparently not.

Where a contract limits the reasons for which an employee may be discharged, the employment is not at-will in that regard.  When a labor agreement or other contract (Corporate Integrity Agreement?) prohibits retaliatory firing of an employees in violation of public policy set forth by constitution/statute/regulation, the employment is not at-will and the WPA should not apply. 

Missouri courts have long so held that employment is not at-will where “there is a contract “pertaining to the duration of the employment or limiting the reasons for which the employee may be discharged . . . .”  Maddock v. Lewis, 386 S.W.2d 406, 409 (Mo. 1965) (suit against railroad for breach of union contract); Williams v. Kansas City Public Service Co., 294 S.W.2d 36, 38 (Mo. 1956) (count II against Anheuser-Busch for breach of collective bargaining agreement).

More recently, the Missouri Supreme Court recognized this distinction in Keveney v. Missouri Military Academy, 304 S.W.3d 98, 103 (Mo. banc 2010), where it extended the claim of wrongful discharge in violation of public policy to cover contract employees (a teacher), in addition to at-will employees.

In short, the new whistleblower law should apply only to at-will employees, not reaching claims for wrongful discharge in violation of public policy where a contract limits the employer’s right to terminate an employee.

Kurt H. King, Missouri Attorney

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Retaliation & Discrimination, Litigation, General Matters

 

Reverse False Claims Act Case

Boise v. Cephalon

Courts have allowed individuals who were not a party to a CIA to file civil lawsuits for breach of Corporate Integrity Agreements.  These cases are known as “reverse False Claims Act” actions.  See Boise v. Cephalon, Case 2:08-CV-00287-TON (E.D.Pa. July 21, 2015 Memorandum and Order denying motion to dismiss, Judge O’Neill). 

In Boise, three former employees of Cephalon, a pharma company under a CIA, sued claiming the company breached its CIA by falsely certifying that it had ceased off-label promotion of its drugs.  The employees claimed off-label promotion continued on after Cephalon’s $425 million settlement with the government in 2008 for off-label promotion.  The court overruled Cephalon’s motion to dismiss, allowing the employees to proceed with their reverse FCA claims.

This case may give traction for plaintiffs claiming to be third-party beneficiaries of a Corporate Integrity Agreement or other contract.

Kurt H. King, Missouri Attorney

816.781.6000

20 E. Franklin, Liberty, Clay County, Missouri 64068

Retaliation & Discrimination, Litigation, General Matters

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