Zimbobway Schwartze Bramblett v. City of Columbia, Missouri et al
ORDER. Defendants the City of Columbia, Missouri and Michael Matthes' motion for partial judgment on the pleadings, 4 , is GRANTED. Plaintiff Irene Maria Zimbobway Schwartze Bramblett's claims against the City for negligent misrepresentation, fraudulent misrepresentation, and prima facie tort, as well as Schwartzes claim against Matthes for tortious interference with contract, are hereby DISMISSED with prejudice.Signed on 6/9/2014 by District Judge Nanette K. Laughrey. (Weber, Alex)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
IRENE MARIA ZIMBOBWAY
THE CITY OF COLUMBIA, MISSOURI, )
MICHAEL MATTHES, AND KENNETH )
Defendants the City of Columbia, Missouri (“the City”) and Michael Matthes
move for partial judgment on the pleadings. [Doc. # 4]. For the reasons set forth below,
Defendants’ motion is GRANTED.
This case arises from Plaintiff Irene Maria Zimbobway Schwartze Bramblett
(“Schwartze”)’s termination from the City’s Police Department. Schwartze alleges that
Matthes, in his capacity as City Manager, advised the City to eliminate Schwartze’s
positions from the FY 2012 budget, resulting in her termination. Schwartze further
alleges that she was terminated in retaliation for making comments critical of the Police
Department during an independent review of the Department’s administration and that
her termination breached an employment agreement executed between her and the City
on October 5, 2009.
Schwartze subsequently initiated the present case, asserting claims for: breach of
contract against the City; breach of the covenant of good faith and fair dealing against the
City; violations of due process, based on liberty and property interests, respectively,
against all Defendants; tortious interference with contract against Matthes; negligent and
fraudulent misrepresentation against the City; and prima facie tort against all Defendants.
Rule 12(c) Standard
Pursuant to Federal Rule of Civil Procedure 12(c), the City moves for judgment on
the pleadings as to Schwartze’s claims for negligent and fraudulent misrepresentation and
prima facie tort. Matthes moves for judgment on the pleadings as to Schwartze’s claim
for tortious interference with contract. A motion for judgment on the pleadings is
generally governed by the same standards that control a motion to dismiss for failure to
state a claim under Rule 12(b)(6). E.g., Ginsburg v. InBev NV/SA, 623 F.3d 1229, 1233
n.3 (8th Cir. 2010). Accordingly, the Court must accept as true all of Schwartze’s factual
allegations and draw all reasonable inferences in her favor. See Gallagher v. City of
Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012).
The City argues that Schwartze’s claims against it for negligent misrepresentation,
fraudulent misrepresentation, and prima facie tort are barred by the doctrine of sovereign
immunity. As a municipality, the City is generally immune from tot liability, subject to
certain, limited exceptions. See State ex rel. Bd. of Trs. of City of N. Kan. City Mem’l
Hosp. v. Russell, 843 S.W.2d 353, 358 (Mo. 1992); Bennartz v. City of Columbia, 300
S.W.3d 251, 259 (Mo. Ct. App. 2009). Schwartze does not contend that any of these
exceptions apply in this case.
Instead, Schwartze maintains that sovereign immunity does not apply because her
claims arise in connection with a written contract. For support, Schwartze relies
primarily on St. Louis Air Cargo Services, Inc. v. City of St. Louis, 929 S.W.2d 821
(1996). This case involved a claim for breach of warranty based on positive
misrepresentations made before and after the execution of a contract, which materially
affected the value of the contract in dispute. Id. at 826. In rejecting the defendant’s
contention that sovereign immunity barred this claim, the court reasoned that “where a
contract exists between the parties, fundamental fairness has motivated courts to
subscribe to the theory of a cause of action ex contractu in the nature of a breach of
warranty as opposed to a cause of action ex delicto (fraudulent misrepresentation).” Id. at
827. Accordingly, the court held that sovereign immunity did not bar the plaintiff’s
“cause of action arising out of a contract in the nature of a breach of warranty.” Id. This
decision is consistent with the Missouri Court of Appeals’ prior holding that sovereign
immunity did not bar a claim premised on misrepresentation where a “contractor had
already entered into an enforceable contract with [a public entity] and was merely trying
to recover for the additional expenses it incurred because its bid was premised upon an
incorrect material fact.” Halamicek Bros., Inc. v. St. Louis Cnty., 883 S.W.2d 108, 110
(Mo. Ct. App. 1994) (citing Ideker, Inc. v. Mo. State Highway Comm’n, 654 S.W.2d 617,
621 (Mo. Ct. App. 1983)).
In this case, Schwartze has separately asserted claims for breach of contract and
breach of the covenant of good faith and fair dealing and her claims for misrepresentation
and prima facie tort are plainly asserted as causes of action ex delicto. See, e.g., [Doc. #
1-1 at 21] (“The City had a duty to exercise reasonable care in making the
Representations.”). That these causes of action sound in tort is further evidenced by the
fact that Schwartze seeks punitive damages in connection with each of these claims. See
Peterson v. Cont’l Boiler Works, Inc., 783 S.W.2d 896, 902 (Mo. 1990) (“The general
rule is that punitive damages may not be recovered in breach of contract actions.”).
Furthermore, Schwartze’s claims for misrepresentation assert only that the City
misrepresented what Schwartze elsewhere alleges to be the substance of the employment
contract. See [Doc. # 1-1 at 12-14, 21-23]. Although the particular basis for Schwartze’s
prima facie tort claim is not entirely clear, to the extent that it is based on alleged
violations of her contractual rights, it similarly overlaps with her contract-based claims.
To the extent that it is based on entirely unrelated conduct, it cannot be construed as
asserting a contract-based theory of liability. Unlike St. Louis Air Cargo and Ideker, Inc.,
this is not a case where a misrepresentation is alleged to have materially altered the cost
of performance or the reasonably expected value of a contract. See St. Louis Air Cargo
Services, Inc., 929 S.W.2d at 824; Ideker, Inc., 654 S.W.2d at 620. Rather, Schwartze’s
tort claims are asserted as alternative theories of liability for the same allegedly wrongful
conduct, such that they are ultimately redundant if in fact an enforceable agreement
exists. Of course, if it is ultimately revealed that there is no contract, then Schwartze’s
claims would sound solely in tort and, accordingly, would be barred by sovereign
immunity. In short, because Schwartze’s contract- and tort-based claims seek to rectify
the same alleged wrongs, the interests of fairness that motivated the decisions in St. Louis
Air Cargo and Ideker, Inc. are not present in this case.
The Missouri Supreme Court’s decision in Kunzie v. City of Olivette, 184 S.W.3d
570 (Mo. 2006), further supports the conclusion that sovereign immunity applies to
Schwartze’s tort claims arising in connection with the breach of an employment contract.
The plaintiff in Kunzie asserted claims for wrongful termination and breach of contract.
Id. at 573-74. In addressing the wrongful termination claim, the Court reasoned that
“[a]lthough wrongful discharge in this context might be based on a contractual
relationship, [the plaintiff] has chosen to proceed in tort,” and, consequently, treated this
claim “only as a tort claim” Id. at 573. The Court then reaffirmed its prior holding “that
termination of a city employee is a governmental function,” such that a “city is protected
by governmental immunity unless some exception applies.” Id. at 574. Consequently,
the Court held that sovereign immunity would bar the wrongful termination claim, unless
the plaintiff was able to prove that immunity had been waived by the city’s purchase of
In this case, Plaintiff’s claims for misrepresentation and prima facie tort are clearly
asserted as independent tort claims. While they could conceivably be construed as causes
of action in the nature of breach of contract or warranty, such a construction would render
them redundant with Plaintiff’s separately asserted contractual claims. Accordingly,
Plaintiff’s claims for misrepresentation and prima facie tort can only be viewed as
sounding in tort, such that sovereign immunity applies. As Plaintiff does not contend that
any exception to this immunity applies, Plaintiff cannot maintain these tort claims against
Tortious Interference with Contract
Matthes argues that Schwartze cannot maintain her claim for tortious interference
with contract against him because he is alleged to have been acting as an agent of the
City, and therefore was not a third-party to the contract as required to state such a claim.
Under Missouri law, “[a]n action for tortious interference with a business expectancy will
lie against a third party only.” Farrow v. Saint Francis Med. Ctr., 407 S.W.3d 579, 602
(Mo. 2013) (quotation omitted). “Where the individual being sued is an officer or agent
of the defendant corporation, the officer or agent acting for the corporation is the
corporation for purposes of tortious interference.” Id. (quotation omitted). Thus, a
supervisor who causes or contributes to the termination of an employee is acting as an
agent of the employer and cannot be liable for tortious interference. Id. at 602-603; see
also Fields v. R.S.C.D.B., Inc., 865 S.W.2d 877, 879 (Mo. Ct. App. 1993).
Schwartze makes no attempt to distinguish Farrow, and instead relies on a number
of decisions of the Missouri Court of Appeals holding that a corporate officer has no
privilege to induce a breach of contract if the officer acts in bad faith, through improper
means, and not for a corporate purpose. E.g., Preferred Physicians Mut. Mgmt. Grp. v.
Preferred Physicians Mut. Risk Retention, 918 S.W.2d 805, 813 (Mo. Ct. App. 1996).
Schwartze maintains that her allegations that Matthes acted in bad faith and not for the
benefit of the City remove Matthes’ privilege as a corporate officer to induce the City to
breach the employment contract. Specifically, Schwartze alleges that she was terminated
in retaliation for making critical comments during an independent review of
administration of the Police Department. Schwartze further alleges that Matthes
misrepresented the basis for terminating Schwartze and that his conduct was motivated
solely by his ill will and malice toward Schwartze.
As in Farrow, however the dispositive issue in this case is not Matthes’ privilege
to induce a breach of contract—the issue addressed in the decisions cited by Schwartze—
but rather whether Matthes is a third party to the employment contract. The supervisor in
Farrow was similarly alleged to have improperly retaliated against the plaintiff for
rebuffing the supervisor’s sexual advances. Farrow, 407 S.W.3d at 585-86. In
particular, the plaintiff alleged that the supervisor intimidated and harassed her, made
defamatory comments about the quality of her work, and told her he was “going to get
her out.” Id. at 585-86. Nonetheless, the Farrow Court held that the plaintiff could not
maintain her action for tortious interference against the supervisor “because while acting
as Farrow’s supervisor, he was Hospital’s agent, not a third party.” Id. at 602-03.
Likewise, in the present case, Matthes is alleged to have been acting in his
capacity as City Manager at all times relevant to Schwartze’s claims. As an officer of the
municipality, Matthes was acting as an agent of the City and, consequently, is the City for
the purposes of Schwartze’s tortious interference claim. See id.; see also Zipper v.
Health Midwest, 978 S.W.2d 398, 419 (Mo. Ct. App. 1998). As the recent and
controlling decision in Farrow is, in all relevant respects, indistinguishable from the
present case, Schwartze cannot maintain her claim for tortious interference against
For the reasons set forth above, Defendants the City of Columbia, Missouri and
Michael Matthes’ motion for partial judgment on the pleadings, [Doc. # 4], is
GRANTED. Schwartze’s claims against the City for negligent misrepresentation,
fraudulent misrepresentation, and prima facie tort, as well as Schwartze’s claim against
Matthes for tortious interference with contract, are hereby DISMISSED with prejudice.
/s Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: June 9, 2014
Jefferson City, Missouri
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