Elbert A. Walton, Jr., Respondent v. The City of Berkeley, Appellant

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Elbert A. Walton, Jr., Respondent v. The City of Berkeley, Appellant Case Number: ED87078 Handdown Date: 08/29/2006 Appeal From: Circuit Court of St. Louis County, Hon. Steven H. Goldman Counsel for Appellant: Donnell Smith Counsel for Respondent: Bernard F. Edwards, Jr. and Elbert A. Walton, Jr. Opinion Summary:

The city of Berkeley appeals from the trial court's judgment in favor of Elbert A. Walton, Jr., granting him equitable relief. The city claims Walton failed to present a record demonstrating he had a right to equitable relief and this appeal is barred by res judicata. AFFIRMED. Division Two holds: Taking the evidence in the light most favorable to the judgment, Walton presented a valid equitable claim. The city's allegation that these issues are barred by res judicata is moot. Citation: Opinion Author: George W. Draper, III, Judge Opinion Vote: AFFIRMED. Gaertner, Sr., P.J., Concurs and Romines, J., Dissents in Separate Opinion Opinion: The City of Berkeley, Missouri (hereinafter, "the City") appeals from the trial court's judgment in favor of Elbert A. Walton, Jr. (hereinafter, "Mr. Walton"). This is the third time this case has been before this Court. The underlying facts are articulated clearly in this Courts prior two opinions. See Walton v. City of Berkeley, 118 S.W.3d 617 (Mo. App. E.D. 2003) (hereinafter, "Walton I") and Walton v. City of Berkeley, 158 S.W.3d 260 (Mo. App. E.D. 2005) (hereinafter, "Walton II").

Accordingly, we see no need to recite them a third time. This Court must affirm the decision of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view the evidence and all reasonable inferences therefrom in the light most favorable to the judgment and disregard all evidence and inferences to the contrary. Stolle v. Director of Revenue, 179 S.W.3d 470, 471 (Mo. App. E.D. 2005). We are concerned with the correctness of the trial court's result, regardless of the manner in which the trial court reached its judgment, and will affirm the judgment if it is cognizable under any theory. Clippard v. Pfefferkorn, 168 S.W.3d 616, 618 (Mo. App. E.D. 2005). "Furthermore, this Court defers to the trial court as the finder of fact in determinations as to whether there is substantial evidence to support the judgment and whether that judgment is against the weight of the evidence, even where those facts are derived from pleadings, stipulations, exhibits and depositions." Business Men's Assur. Co. of America v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999). The City raises two points on appeal. In its first point, the City claims the trial court erred in granting equitable relief on Mr. Walton's amended petition, Count I. The City relies on language in Walton I, arguing there is no evidence in the record supporting Mr. Walton's contention that he had no adequate remedy at law. Specifically, the City lifts language from Walton I stating Mr. Walton "did not plead or present any evidence that there was not an adequate remedy at law...." Walton I, 118 S.W.3d at 621 (emphasis added). This statement was made in support of this Court's opinion that Mr. Walton failed to invoke the equitable jurisdiction of the trial court. This statement, in isolation, does not stand for the proposition that Mr. Walton could never plead or prove he had no adequate remedy at law. This Court allowed Mr. Walton to amend his pleadings in order to invoke the equitable jurisdiction of the trial court. See Walton II, 158 S.W.3d at 264. Upon remand, the trial court accepted Mr. Walton's amended petition and entered judgment in his favor on the equity claim. "All pleadings shall be so construed as to do substantial justice." Rule 55.24. After review of Mr. Walton's amended petition, it is clear he adequately amended it in order to invoke the equitable jurisdiction of the trial court.(FN1) In particular, Mr. Walton's amended petition, liberally construed, alleged and prayed for equitable relief in the form of an injunction, reinstatement, and back pay. The amended petition also alleged that "[Mr. Walton] has no adequate remedy at law."(FN2) Once equitable jurisdiction of the trial court is invoked, it retains jurisdiction to render complete relief of the issues before it, "even though it involves adjudicating matters of law or rendering a money judgment." Wallace v. Grasso, 119 S.W.3d 567, 579 (Mo. App. E.D. 2003). Since Mr. Walton invoked the equitable jurisdiction of the trial court, the trial court properly received evidence and

rendered its decision. It is of no import that the trial court's determination of complete relief was in the form of money damages rather than a permanent injunction. See Grasso, 119 S.W.3d at 579. Point denied. Second, the City alleges the trial court erred to the extent that it granted Mr. Walton relief based on contract or breach of contract because this issue is res judicata. Count II of Mr. Walton's petition alleging breach of contract was dismissed by the trial court in Walton I. Walton I, 118 S.W.3d at 619. Mr. Walton failed to raise this as an allegation of error in his first appeal, Walton I. Further, the trial court's judgment in this case incorporates its findings and conclusions from its judgment from Walton I, and does not make any findings upon a breach of contract claim. Accordingly, this is a moot issue on appeal. Point denied. The judgment of the trial court is affirmed. Footnotes: FN1.This Court in Walton II also believed that if Mr. Walton were to amend his petition as he proposed, "it appears the amended petition could cure the inadequacy of Count I of the original petition." Walton II, 158 S.W.3d at 264. FN2.This allegation can be found in paragraph 33 of Mr. Walton's amended petition.

Separate Opinion:

I dissent. Equity is not a slopjar when all else fails; nor is Equity a panacea when a legal cause of action has gone to trial and you lose. Prior to Walton bringing the suit that has been the subject of this case, and that has been appealed to this Court three times now, Walton was employed by the City of Berkeley ("City") as its City Attorney from 1996 through May of

1. On three separate occasions the City Manager recommended that Walton be removed from his position as City

Attorney. Following the City Manager's third recommendation of removal, in May of 1999, the City Council finally agreed to terminate Walton. Following his removal as City Attorney, Walton filed a two-count petition against the City in the circuit court in January of 2001, alleging his "wrongful removal" as City Attorney (Count I) and breach of contract (Count II). Regarding the "wrongful removal" claim, Walton argued that he sustained damages in excess of $150,000. Regarding the breach of contract claim, Walton claimed that he and the City entered into two written agreements whereby the City agreed to pay him a monthly retainer, as well as a fee for extraordinary services. As a result of the breach, Walton claims that he

sustained damages in excess of $67,500. In the City's answer, it argued that Walton failed to state a claim upon which relief may be granted. Before any evidence was heard by the jury, the trial court determined that Walton's breach of contract claim (Count II) was an action at law. However, the court also determined, sua sponte, that Walton's "wrongful removal" claim (Count I) was equitable in nature, and did not allow the jury to hear any evidence on this claim. In making this determination, the trial court primarily relied on Edwards v. Schoemehl, 765 S.W.2d 607 (Mo. banc 1989). The trial court did so even though Walton's initial petition made no claim for equitable relief. On the contrary, Count I of Walton's petition prayed only for compensatory money damages, a remedy at law. Accordingly, Walton did not plead or prove that he had no adequate remedy at law--a fundamental requirement for any grant of equitable relief. See Blue Cross Health Services, Inc. v. Sauer, 800 S.W.2d 72, 76 (Mo. App. E.D. 1990). At the close of Walton's breach of contract case, the City moved for a directed verdict dismissing this count. The trial court sustained this motion regarding Count II. The trial court then dismissed the jury, over City's objection, and heard Walton's evidence on Count I. In March of 2002, the trial court found for Walton, holding that the City owed him a total of $156,049 on this claim. Following the trial court's judgment in favor of Walton, the City appealed to this Court. In Walton v. City of Berkeley, 118 S.W.3d 617 (Mo. App. E.D. 2003) ("Walton I"), this Court overturned the trial court's judgment in favor of Walton because the trial court lacked jurisdiction to grant equitable relief under the petition. Specifically, we found that "plaintiff [Walton] did not plead or present any evidence that there was not an adequate remedy at law for the cause of action raised in Count I of his petition." Id. at 621 (emphasis added). Furthermore, we found that the trial court's reliance on Edwards was misplaced. Id. at 620. On the contrary, in Walton I we specifically noted that Walton was not seeking the equitable remedy of reinstatement of his position, and thus, a grant of equitable relief was improper. Id. at 620. In support of this finding, we noted the general rule that, "[w]here only money damages are sought it is generally considered an action at law rather than equity." Id. at 621. Therefore, we concluded this was error because, "based on the petition there was an adequate remedy at law, money damages, upon which relief could be granted." Id. Following this Court's reversal and remand of the trial court's initial judgment, Walton filed a motion for leave to amend his original petition. Walton then filed an amended petition in which he sought his reinstatement as City Attorney as well as back pay and damages. However, the trial court subsequently denied Walton's motion for leave to amend as not timely filed. Walton then appealed the trial court's decision to this Court for a second time. In Walton v. City of Berkely, 158 S.W.3d 260 (Mo. App. E.D. 2005) ("Walton II"), this Court overturned the trial court's denial of Walton's

motion for leave to amend his petition, finding that the trial court abused its discretion. In Walton II we noted that "[t]here appears to have been some confusion as to what Walton was asking for in Count I of his petition and an amended petition could have cured any deficiencies and confusion." Id. at 264. Indeed, once having failed to prove a breach under the written contract, Walton had no claim. Following this Court's remand of Walton's case for a second time, the trial court granted Walton leave to amend his petition. Walton's amended petition, styled "FIRST AMENDED PETITION FOR INJUNCTION, REINSTATEMENT AND FOR BACK PAY FOR WRONGFUL REMOVAL OF CITY ATTORNEY," specifically prayed for, inter alia, "a permanent injunction against the Defendants enjoining them from in anywise attempting to enforce the termination of Plaintiff as City Attorney...." The trial court, on the record previously before the court, and hearing no new evidence, entered judgment in favor of Walton, awarding damages in the amount of $181,049. The City appealed, and thus, our third review of this case. In its first claim of error, the City argues that the trial court erred in entering judgment in favor of Walton on an equitable theory because "there is [still] no evidence in the record that plaintiff had no adequate remedy at law." I dissent in this case because, unlike the majority, I agree with the City on this point.(FN1) Although Walton did amend his petition to pray for a form of equitable relief--an injunction--his amended petition is nonetheless completely devoid of any facts supporting his ipse dixit pleading, in paragraph 33 of the amended petition, that he had no adequate remedy at law.(FN2) As noted, such a requirement is essential to any equitable claim, and I believe is a fatal flaw which, among others, dooms Walton's case. What is pled is nothing more than a bald legal conclusion. Furthermore, I believe Walton's amended pleading failed to state any claim at all--equitable or otherwise. In Walton I, this Court affirmed the trial court's judgment that Walton failed to prove his breach of contract claim, and thus, this avenue of recovery is foreclosed by res judicata and the law of the case. Finally, Walton failed to plead or prove that he had any sort of common law, statutory, or administrative remedy, as the record is devoid of any evidence concerning City of Berkeley ordinances or Missouri statutes giving him an administrative forum in which to claim he was aggrieved by his termination as City Attorney. This court--this very term--has affirmed that an attorney who has a written contract may not seek equitable relief in quantum meruit, but must proceed on the contract.(FN3) In sum, the majority opinion stands equity jurisdiction on its ear. The majority creates a cause of action that has been unknown in this state since 1820. The trial court--and now this court--has erred legally. This case should be reversed and remanded for entry of judgment for the City. The request by Walton for sanctions for frivolous appeal is itself frivolous and should be denied.

As I believe this opinion is a radical departure from the equity jurisprudence of this state, and most recently Mello v. Davis, 182 S.W.3d 622 (Mo. App. E.D. 2005), consistent with Rule 83.03, I certify this case to the Missouri Supreme Court. Footnotes: FN1.Because I would find for the City on this point, there is no need to address City's second claim of error. FN2.Walton's entire amended petition, filed 8 July 2005, is attached to this dissent as an addendum. FN3.See Mello v. Davis, 182 S.W.3d 622, 623 (Mo. App. E.D. 2005): an attorney may not seek recovery in quantum meruit where an agreement exists. Where an agreement exists, "the attorney's recovery of fees must lie on the contract." Id. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.