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Litigating Breach of Contract Claims I. (§7.1)

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Litigating Breach of Contract Claims I. (§7.1) LITIGATING BREACH OF CONTRACT CLAIMS I. (§7.1) Introduction and Scope II. Jurisdiction A. (§7.2) Subject Matter B. (§7.3) Personal Jurisdiction C. (§7.4) Forum Selection Clauses III. (§7.5) Venue IV. (§7.6) Choice of Law V. Pleading A. (§7.7) Introduction B. The Parties 1. (§7.8) Plaintiffs 2. (§7.9) Defendants C. (§7.10) Elements of a Breach of Contract Claim D. (§7.11) Special Pleading Rules for Contract Actions E. Defenses 1. (§7.12) Statute of Limitations 2. (§7.13) Statute of Frauds 3. (§7.14) Fraud 4. (§7.15) Duress 5. (§7.16) Mistake 6. (§7.17) Illegality, Public Policy, and Unconscionability 7. (§7.18) Impossibility and Commercial Frustration 8. (§7.19) Waiver 9. (§7.20) Estoppel 10. (§7.21) Cancellation and Novation Reprinted with permission from Missouri Contracts, © The Missouri Bar (2007). All rights reserved. ______ *Mr. Riley received his B.A., 1993, from Westminster College and J.D., 1997, from Washington and Lee University. He is a member of the Fulton firm of Riley & Dunlap. VI. Interpreting the Contract A. (§7.22) Parol Evidence B. (§7.23) Rules of Construction VII. Remedies A. (§7.24) Introduction B. (§7.25) Damages C. (§7.26) Specific Performance D. (§7.27) Rescission and Restitution VIII. Quasi Contractual Actions A. (§7.28) Introduction B. (§7.29) Quantum Meruit C. (§7.30) Unjust Enrichment IX. (§7.31) Conclusion I. (§7.1) Introduction and Scope While the remainder of this deskbook addresses the formation and performance of contracts, this chapter discusses the consequences when contracts are not performed as anticipated. Specifically, this chapter concerns the cause of action for breach of contract and its various remedies. The quasi contractual actions of quantum meruit and unjust enrichment are also addressed. Because contractual litigation is such a broad topic, limitations of space require that several related areas of the law fall outside this chapter's scope. This work does not discuss specialized contracts governed by distinct rules (e.g., the Uniform Commercial Code agreements, insurance claims, and leases). Other lawsuits that are not claims for breach of contract, but could relate to contractual disputes (such as declaratory judgments and injunctions), are also not addressed. The emphasis of this chapter is on the rules specific to contractual litigation, rather than on rules of pleading, discovery, and trial applicable to all litigation. II. Jurisdiction A. (§7.2) Subject Matter Subject matter jurisdiction for breach of contract actions is vested in the circuit courts of Missouri. MO. CONST. art. V, § 14(a); § 478.070, RSMo 2000. Breach of contract actions in which the amount sought (excluding interest and costs) is less than $25,000 may be originally filed with the associate circuit division and may be pursued using simplified procedures. Section 517.011, RSMo 2000. Circuit judges and associate circuit judges have concurrent original jurisdiction over all cases seeking more than $25,000, but the simplified procedures in Chapter 517, RSMo, do not apply in such actions. Mogley v. Fleming, 11 S.W.3d 740, 746'47 (Mo. App. E.D. 1999). B. (§7.3) Personal Jurisdiction Personal jurisdiction is determined by the defendant's contacts with Missouri. Missouri courts exercise personal jurisdiction over Missouri residents. Cf. In re Marriage of Berry, 155 S.W.3d 838, 840'42 (Mo. App. S.D. 2005). Missouri courts may exercise personal jurisdiction over nonresidents if the state long arm statute (§ 506.500, RSMo 2000) applies and the exercise of such jurisdiction is consistent with federal constitutional restraints (i.e., the defendant must have sufficient "minimum contacts" with the state so as to make the exercise of jurisdiction reasonable). State ex rel. Wichita Falls Gen. Hosp. v. Adolf, 728 S.W.2d 604, 606 (Mo. App. E.D. 1987). Section 506.500 provides personal jurisdiction over nonresidents for actions that arise from the nonresident's "transaction of any business within this state" or "[t]he making of any contract within this state." Section 506.500.1(1) and (2). The requirement of transacting any business within the state is broadly construed and may consist of a single transaction (if that is the basis for the suit), but the mere use of the phone or mail from out of state does not constitute transacting business in Missouri. Johnson Heater Corp. v. Deppe, 86 S.W.3d 114, 11920 (Mo. App. E.D. 2002). A contract is considered to be made in Missouri if the offer is accepted within Missouri. Garrity v. A.I. Processors, 850 S.W.2d 413, 417 (Mo. App. S.D. 1993). An offer is accepted when the offeree performs the act that, by the terms of the offer, constitutes acceptance and creates the binding contract. Id. So, if the defendant is a Missouri resident or if the defendant had sufficient contacts with the state of Missouri related to the contract at issue, Missouri courts have personal jurisdiction. C. (§7.4) Forum Selection Clauses Personal jurisdiction of the parties may also be affected by forum selection clauses. Forum selection clauses specify the jurisdiction in which a lawsuit arising from a contract may be filed; if the forum selection clause is enforceable, the state specified in the contract has personal jurisdiction over the contracting parties for claims arising from the contract. A forum selection clause (either an "inbound" clause, specifying Missouri as the state with jurisdiction, or an "outbound" clause, specifying another state) is enforceable in Missouri unless the opposing party proves it is unfair or unreasonable. High Life Sales Co. v. Brown Forman Corp., 823 S.W.2d 493, 496 (Mo. banc 1992). The court first considers whether the contract is unfair (based on whether it was freely negotiated and whether it is neutral and reciprocal) and then whether it is unreasonable (based on public policy or location of parties, witnesses, or evidence). See Whelan Sec. Co. v. Allen, 26 S.W.3d 592, 59697 (Mo. App. E.D. 2000). If the forum selection clause is neither unfair nor unreasonable, it is enforceable. Id. III. (§7.5) Venue Venue for most breach of contract actions is based on Missouri's general venue statute, § 508.010, RSMo Supp. 2006. Unless the lawsuit includes a tort claim, § 508.010 specifies the appropriate venues as follows: (1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found; (2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county; (3) When there are several defendants, some residents and others nonresidents of the state, suit may be brought in any county in this state in which any defendant resides; (4) When all the defendants are nonresidents of the state, suit may be brought in any county in this state. Section 508.010.2. Obviously, if the breach of contract action involves facts that implicate one of the specific venue statutes, those statutes must be consulted. For example, if the lawsuit is for the possession of real estate, § 508.030, RSMo 2000, mandates that the suit be filed in the county in which the real estate is located. If, on the other hand, the suit includes a tort count and the plaintiff was first injured in Missouri, the county where the injury occurred is the proper venue. Section 508.010.4. Venue is determined solely by statute. State ex rel. Smith v. Gray, 979 S.W.2d 190, 191 (Mo. banc 1998). In general, venue for breach of contract actions is determined by the defendant's residence (or location when served). Section 508.010. There is no venue statute applicable specifically to contracts that allows suit to be brought in a county simply because that was the location where the contract was entered or where it was breached. Platinum Express, Inc. v. Scott, 164 S.W.3d 537, 538 (Mo. App. W.D. 2005). If suit is filed in the wrong venue, the court should transfer the case to the appropriate venue. Section 476.410, RSMo 2000; State ex rel. Bugg v. Roper, 179 S.W.3d 893, 894 (Mo. banc 2005). The parties' contract may establish a venue that is different than the venue provided by statute. A venue selection clause is analyzed using the same criteria as a forum selection clause; in fact, many venue selection clauses are simply part of a forum selection clause (e.g., the "exclusive venue for the resolution of disputes shall be in Dade County, Florida"). Burke v. Goodman, 114 S.W.3d 276, 27980 (Mo. App. E.D. 2003). The opponent to the enforcement of the venue selection clause must prove that its enforcement is unreasonable or unfair. Id. If the venue selection clause is neither unreasonable nor unfair, the locale specified in the contract is the correct venue. IV. (§7.6) Choice of Law Choice of law refers to the process by which the court determines what state's substantive law applies. In Missouri, the laws of the state with the most "significant relationship" to the action are applied. Dillard v. Shaughnessy, Fickel & Scott Architects, Inc., 943 S.W.2d 711, 715 (Mo. App. W.D. 1997). The state with the most significant relationship is determined by applying the Restatement (Second) of Conflict of Laws § 188 (1971). Id. The factors that determine the most significant relationship are: the place of contracting; the place of negotiation; the place of performance; the location of the subject matter of the contract; and the domicile, residence, nationality, incorporation, or business of the parties.
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