EXISTENCE OF MISSOURI DEALER/FRANCHISE TERMINATION, FRAUD AND NON-RENEWAL LAWS AND FRANCHISE INDUSTRY-SPECIFIC LAWS

In Missouri, the following Dealer/Franchise Termination and Non-Renewal Laws, Fraud, and Franchise Industry-Specific Laws exist:

– Missouri Has No Disclosure/Registration Franchise Law
– Missouri Has a Relationship/Termination Franchise Law
– Missouri Has No General Business Opportunity Franchise Law
– Missouri Has an Alcoholic Beverage Wholesaler/Franchise Law
– Missouri Has an Equipment Dealer/Franchise Law
– Missouri Has a Gasoline Dealer/Franchise Law
– Missouri Has a Marine Dealer/Franchise Law
– Missouri Has a Motor Vehicle Dealer/Franchise Law
– Missouri Does Have a Motorcycle Dealer/Franchise Law
– Missouri Has a Recreational and Power Sports Vehicle Dealer/Franchise Law
– Missouri Does Have a Restaurant Liability Law
– Missouri Does Have a Campground Franchise Law

Missouri has a short franchise relationship law known as the Missouri Franchise Act (“MFA”). Section 407.405 of the MFA involves cancellation of a franchise without notice. Specifically, the MFA prohibits a franchisor from cancelling or otherwise terminating a franchise agreement without notifying the franchisor of the cancellation, termination or failure to renew in writing at least ninety days in advance of the cancellation, termination or failure to renew. The provision creates an exception to the 90 days’ notice requirement where there is criminal misconduct, fraud, abandonment, bankruptcy or insolvency of the franchisee, or the giving of a no account or insufficient funds check is the basis or grounds for cancellation or termination.

Section 407.410 discusses cancellation of a franchise without the requirement of notice. Under this section, the MFA directs that any contract made in violation of section 407.405 is void and an action under this section may be brought in court. Also, this section of the MFA states that a franchisee suffering damage as a result of the failure to give notice as required of the cancellation or termination of a franchise, may institute legal proceedings, in which if the franchisee prevails, it may be awarded a recovery of damages sustained to include loss of goodwill, costs of the suit, and any equitable relief that the court deems proper.

In Missouri, the following Dealer/Franchise Termination, Fraud and Non-Renewal Laws, and Franchise Industry-Specific Laws, are identified as follows:

Missouri State Franchise Disclosure/Registration Laws
Missouri Has No Franchise statute of general applicability in the Disclosure Area
Franchisors must comply with the FTC franchise disclosure rule

Missouri State Franchise Relationship/Termination Laws
Missouri Franchises Law
Revised Missouri Statutes, Title 26, Chap. 407, Sec. 407.400 through 407.410, 407.413, and 407.420

Missouri State Business Opportunity Laws
Missouri Has No Franchise statute of general applicability regarding Business Opportunities
Business opportunity sellers must comply with the FTC business opportunity rule

Missouri Alcoholic Beverage Wholesaler Laws
Missouri Franchise law (portion)
Mo. Rev. Stat. §407.400,

Missouri Equipment Franchise/Dealer Laws
Missouri farm implements and machinery Franchise/Dealer law; Missouri outdoor power equipment Franchise/Dealer law; Missouri industrial, maintenance, and construction equipment Franchise/Dealer law
Mo. Rev. Stat. §407.838 to §407.848,Mo. Rev. Stat. §407.895 to §407.898,Mo. Rev. Stat. §407.753 to §407.756

Missouri Gasoline Franchise/Dealer Laws
Missouri Motor Fuel Marketing Act
Mo. Rev. Stat. §416.600 to §416.640

Missouri Marine Franchise/Dealer Laws
Missouri marine Franchise/Dealer law
Mo. Rev. Stat. §407.1360 to §407.1370

Missouri Motor Vehicle Franchise/Dealer Laws
Missouri Motor Vehicle Franchise Practices Act
Mo. Rev. Stat. §407.810 to §407.835,Mo. Rev. Stat. §407.558

Missouri Motorcycle Franchise/Dealer Laws
Missouri motorcycle and all-terrain vehicle Franchise/Dealer law
Mo. Rev. Stat. §407.1025 to §407.1049

Missouri Recreational and Powersports Vehicle Franchise/Dealer Laws
Missouri recreation vehicle Franchise/Dealer law
Mo. Rev. Stat. §407.1320 to §407.1346

Missouri Restaurants
Missouri Commonsense Consumption Act
Mo. Rev. Stat. §537.595.

Missouri Other
Missouri campground franchises law
Mo. Rev. Stat. §436.100 to §436.105

American Business Interiors, Inc. v. Haworth, Inc., United States Court of Appeals, Eighth Circuit, August 12, 1986798 F.2d 1135 (“We agree with ABI and the district court that the statute's requirement that a terminated franchisee be given 90 days written notice of termination is rendered meaningless if at any time without warning the franchisor can refuse to do business with the franchisee. See Carlos C. Gelardi Corp. v. Miller Brewing Corp., 502 F.Supp. 637, 653 (D.N.J.1980) (New Jersey franchise statute covers indirect termination through failure to deal fairly with franchisees); Coast to Coast Stores (Central Organization), Inc. v. Gruschus, 100 Wash.2d 147, 667 P.2d 619, 628 (1983) (Dore, J., dissenting) (franchise agreement is terminated in fact under Washington statute when the means of continuing the franchised business are taken away). Cf. Meyer v. Kero-Sun, Inc., 570 F.Supp. 402, 407 (W.D.Wisc.1983) (grantor effectively terminated dealership by imposing substantial changes on the dealer at the time of renewal, although injunctive relief from changes in competitive circumstances under the Wisconsin statute takes the place of termination remedies); Imperial Motors, Inc. v. Chrysler Corp., 559 F.Supp. 1312, 1315 (D.Mass.1983) (federal Dealers' Day in Court Act allows recovery where coercion or intimidation amount to a constructive termination). But see Coast to Coast Stores, 667 P.2d at 622–23 (a franchise is conceptually distinct from the franchisee's business and even when, at the franchisor's insistence, the business ceases, the franchise continues until the agreement by which the franchisee could use the trade name is terminated). When Haworth wrote ABI on February 11, refusing to provide information ABI needed to conduct its business with JCCC, Haworth in effect terminated ABI's franchise less than 90 days after its December 1 written notice. A franchisee may sue to recover damages, including loss of good will, costs of the suit, and proper equitable relief, following a franchise termination without the requisite notice. Mo.Ann.Stat. § 407.410(2). The district court did not err in submitting ABI's franchise claim to the jury, and viewed in the light most favorable to ABI, the evidence is sufficient to support the jury finding that Haworth violated the statute. 2 We reject as without merit Haworth's contention that the district court erred by substituting the phrase “right to use as one's own” for the word “license” in its jury instruction on the franchise statute. “A district court has broad discretion in framing the form and language of the charge to the jury, and as long as the entire charge fairly and adequately contains the law applicable to the case, the judgment will not be disturbed on appeal.” Des Moines Board of Water Works, 706 F.2d at 823. The court's charge fairly stated Missouri franchise law. B. 3 We turn to ABI's claim of breach of contract. ABI seeks to read Haworth's December 1 termination letter as a unilateral contract obligating it to provide information to ABI. It argues in the alternative that promissory estoppel principles should apply because it made efforts to structure and submit a bid to JCCC in detrimental reliance on the letter. In relevant part, the termination letter provided: “Should you [ABI] have any jobs pending, we will, of course, honor those orders if placed prior to the termination date.” Under Missouri law, a unilateral contract is one that depends upon the wish, will or pleasure of one of the parties. Becker v. City of Missouri, 689 F.2d 763, 766 (8th Cir.1982). It becomes complete when accepted by performance of the act called for in the offer. Id. The district court instructed the jury that six elements needed to be satisfied for ABI to recover for breach of contract: Haworth's December 1 letter constituted an offer to honor orders ABI placed by March 3 on business it had pending December 1; the JCCC job was pending as of December 1; when ABI requested pricing information, Haworth knew it was for the JCCC job; Haworth routinely supplied pricing information to its dealers; Haworth did not supply the requested information “or otherwise assist *1142 [ABI] in processing an order”; and ABI suffered damages. Although the district court did not charge the jury on promissory estoppel, ABI introduced evidence of its efforts in preparing the JCCC bid. In denying Haworth's motions for a new trial or judgment NOV, the district court found that the evidence sufficed to show detrimental reliance as an alternate ground for the breach of contract verdict. To the extent the district court's construction of the contract and its legal effect relies on the contract terms and not on extrinsic evidence, its interpretation is a conclusion of law over which we have plenary review. Amerdyne Industries, Inc. v. POM, Inc., 760 F.2d 875, 877 (8th Cir.1985). The district court found and instructed that Haworth's letter offered to honor orders for jobs pending as of the date the letter was sent, December 1, rather than the termination date, March 3. Such an interpretation is inconsistent with the requirements of the franchise statute, as we discussed above, and also with the termination procedures Haworth laid out in its manual.4 Under the district court's interpretation, Haworth effectively terminated ABI as an authorized dealer, in significant part, when without prior written notice it sent the December 1 letter. Although we have some doubt that ABI's discussions with JCCC before December 1 made the JCCC job pending business as of that date, there is some evidence in the record from which the jury might so conclude. As we have just stated, however, the district court misconstrued the contract terms in a way overly favorable to Haworth by not extending the period covered by pending business to March 3. The evidence that the JCCC job was pending business before March 3 is more than sufficient to support the jury's verdict. Haworth also argues that ABI never accepted the offer by making an order, and thus that there was no unilateral contract. Read into every Missouri contract, however, is a duty of good faith and fair dealing in its performance. Bain v. Champlin Petroleum Co., 692 F.2d 43, 47 (8th Cir.1982); see Restatement (Second) of Contracts § 205 (1981). Each party must do nothing destructive of the other party's right to enjoy the fruits of the contract and do everything that the contract presupposes they will do to accomplish its purpose. Conoco Inc. v. Inman Co., 774 F.2d 895, 908 (8th Cir.1985).5 Implicit in Haworth's offer to accept orders must be an offer to provide pricing information that ABI would need to make an order. Haworth could not reasonably expect ABI to order goods at unknown prices. ABI's inquiry was the necessary preliminary to an order, and once Haworth sent ABI its February 11 letter refusing to provide price information, ABI could not be expected to place an order. Further, the record contains sufficient evidence for the jury to find that ABI might have won the bid and placed an order before March 3, had Haworth provided the requested information. Haworth also takes issue with the district court's refusal to charge the jury on detrimental reliance, but detrimental reliance is not required for a valid unilateral contract. See Becker, 689 F.2d at 766. Because the evidence is sufficient to support ABI's contract claim, we need not review the district court's alternative arguments regarding detrimental reliance.”)

Maude v. General Motors Corp., United States District Court, W.D. Missouri, Western Division, January 22, 1986, 626 F.Supp. 1081 (“GM's purported cancellation of the Maude dealership relies on his failure to operate for seven consecutive business days, in violation of Article IV(A)(2)(i) of the Dealer Agreement. Maude contends, however, that nine months' notice should have been given, under Article IV(A)(3), requiring such extended notice when there is failure to provide “adequate premises.” Because the adequacy of premises is not in question, but rather the failure to provide any place to operate the business, it appears that notice was given under the correct paragraph of the Dealer Agreement.1 On the contract issue, therefore, GM prevails. The second major issue, as phrased in my order setting hearing, was “whether the ninety day statutory requirement under § 407.405, RSMo, is superseded by deregulation as to termination notice periods under § 407.825 (listing unlawful practices by motor vehicle franchisors).” Defendant now strenuously asserts that a second aspect of the statutory question is whether there is any such generally applicable ninety day termination notice requirement in § 407.405, RSMo. Assuming for the moment that such a period is specified for Missouri franchises in general, it seems clear that the auto dealer franchise legislation enacted in 1980 does not repeal this requirement. Such repeals by implication are disfavored. Wright v. Martin, 674 S.W.2d 238, 242–3 (Mo.App.1984). A review of the 1980 legislation shows that nothing therein purports to establish or reject a mandated termination period. While the scattering of pertinent statutes throughout the Missouri Revised Statutes creates traps for the unsophisticated attorney, this court is not surprised to find such inartful methods of legislating. E.g., Drew v. Chrysler Credit Corp., 596 F.Supp. 1371, 1374 n. 1 (W.D.Mo.1984). It might be argued that the 1980 legislation was an attempt to codify all pertinent Missouri statutes on automobile dealer franchises, and the omission of a provision requiring particular periods for giving termination notices could arguably be deemed significant. Just as likely, however, one might speculate that the legislators shrank from coping with a controversial subject, or *1085 were simply adopting legislation from elsewhere which did not, for one reason or another, establish periods for giving notices of termination. The 1980 statute does not on its face preclude plaintiffs' reliance on § 407.405, and I therefore turn to that statute. Oral argument and briefing suggest, moreover, that GM's most serious contention is that I should rethink the cryptic observation in the Earley Ford case, and hold that § 407.405 does not really establish a ninety day notice period of general applicability. I have reconsidered the issue. Without belaboring the legislative history of the pertinent sections, through reprinting pertinent paragraphs from the 1974 and 1975 enactments of the General Assembly, the interested reader is referred to the appendix to the Missouri Supreme Court decision in Brown-Forman Distillers Corp. v. McHenry, 566 S.W.2d 194, 198–200 (Mo.Sup. en banc, 1978). The 1974 text also appears in Historical Note to § 407.400, RSMo, 21 VAMS. It seems clear from the text that from the time of initial enactment of the legislation in 1974, a person who has granted a “franchise” has been prohibited from giving less than ninety days' notice of cancellation (with exceptions to be reviewed later). There has, however, been a change in the statutory definition of franchises, as set forth in § 407.400, RSMo. The 1974 definition of franchise was quite straight-forward (clearly including motor car dealerships, for example) except that it purported to exclude “persons engaged in sales from warehouses.” The 1975 revision has proved to be confusing, partly because it now contains a 38-line sentence defining the term “franchise.” It seems clear, however, from the italicized portions set forth in the Brown-Forman case, 566 S.W.2d at 199, that the warehouse sales exclusion proved troublesome in the liquor industry, and that it became appropriate to explain what was covered in that industry. A lengthy statement, applicable only to that industry, was added to the definition. Except for the liquor industry, the coverage of the 1974 act remained intact. This analysis of the 1975 legislation (the “liquor amendment”) is consistent with an affidavit supplied in 1984 by former state Senator Spradling for use in certain state court litigation. The conclusion I reach is inconsistent, however, with an observation by Senator Spradling that the “intent” of the 1974 legislation was “to deal solely with pyramid sales schemes” and the statute “referred to franchises only in connection with their use in pyramid sales schemes.” The use of an unexplained current opinion is one of the least favored methods of showing legislative history and is generally, I believe, rejected. In this case, moreover, the statement obtained is simply contrary to the text of the 1974 legislation, considered as a whole. The pyramid scheme portion of the 1974 law prohibits such schemes, and declares pyramid scheme contracts void. It is difficult to imagine why there would be a protective notice period enacted in connection with termination of a void agreement. Contrary to the recent statement of views of Senator Spradling, the Missouri Supreme Court has already said, quite correctly, that the 1974 legislation “related to what we believe are ... two types of merchandising practices: ‘pyramid sales schemes and franchise security.’ ” Brown-Forman Distillers Corp. v. McHenry, supra, 566 S.W.2d at 197. The present case involves “franchise security.” The result reached in this litigation has been repeatedly forecast, with one reported exception, by judicial decisions and commentators. Chmieleski v. City Products Corp., 660 S.W.2d 275, 295 (Mo.App.1983); Bain v. Champlin Petroleum Co., 692 F.2d 43, 48 (8th Cir.1982) (Regan, Senior District Judge); Palmer and Monica, Franchises: Statutory and Common Law Causes of Action in Missouri, 45 Mo.L.Rev. 42, 53 (1980).2 The only exception *1086 appears to be an Eighth Circuit opinion by Senior Circuit Judge Peck of Ohio, who “questioned” the applicability of the law to a beer franchise, apparently erroneously assuming that the 1975 legislation considerably narrowed the coverage of the 1974 legislation. ABA Distributors, Inc. v. Adolph Coors Co., 661 F.2d 712, 715 n. 4 (8th Cir.1981). While I am of course bound to follow the Eighth Circuit, the latest controlling ruling is in Bain. A post-hearing brief filed this week by GM now raises a constitutional argument. It is said that § 407.413, which is expressly limited to liquor franchises, would be in danger as a “special law” if § 407.405 were construed as being of general applicability. This belated contention has only colorable validity. In any event I would not feel authorized to misconstrue § 407.405 in order to save § 407.413. It is therefore concluded that Maude was entitled, by statute, to ninety days' notice, unless his situation falls within one of the statutory exceptions.   Ninety days' notice is excused when a franchisee is guilty of criminal misconduct, has taken bankruptcy or has taken other specified actions for which immediate termination is authorized. Section 407.405, RSMo. The only conduct asserted by GM that would permit termination without notice is the alleged “abandonment” of the franchise. GM initially asserted there was an abandonment when Maude allegedly “would not or could not come up with the monies which were demanded by the seller” for the premises, or that there was an “involuntary” abandonment when the seller took bankruptcy.3 Neither of these circumstances can fairly qualify for the statutory exception. Maude continued actively pursuing the dealership opportunity, as it relates to the premises, until he finally obtained the premises in October 1985. The recitation of events to which the parties have stipulated is inconsistent with the contention that there was an abandonment. Abandonment is largely a question of intention. Russell v. Allen, 496 S.W.2d 290, 294 (Mo.App.1973). The burden is on one claiming an abandonment to establish the condition by clear and unequivocal evidence. Ibid. Nothing has been presented which would permit a trier of fact to infer that Maude had decided neither to use nor retake the franchise. Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.App.1974). Even if it could be concluded that Maude should have been more generous in his business dealings with the seller, or that bankruptcy had temporarily made it impossible to operate, adopting a theory of constructive abandonment would be inconsistent with the remedial purposes of the legislation. 5 A statutory violation having been shown, I could be expected to follow Judge Oliver's view that the appropriate remedy is to reinstate the franchise until proper notice is given. ABA Distributors, supra. GM urges, however, that I conclude that Maude's remedy at law is adequate. Most of the cases cited deal with preliminary injunctions, where a plaintiff's claim is sometimes given quite critical analysis. Even in those cases, however, where damage remedies are uncertain or verge on speculation, relief is often given. Earley Ford, supra. While Maude might be able to establish in this case what his out-of-pocket losses and expenses have been, an equally significant aspect of a franchise is the element of lost profits or prospects. *1087 Since Maude did not in fact have an opportunity to exercise the franchise, GM would doubtless argue with some force that a claim for lost profits is speculative. It follows from such a contention that the damages allowed in a lawsuit would not be fully adequate. It is the general rule in Missouri and elsewhere that equitable relief will be granted when a violation of law has been shown, “if the remedy at law is not clear, complete and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” Hughes v. Neely, 332 S.W.2d 1, 7 (Mo.Sup.1960). That is surely the case here, where a damage suit presented to a jury would not afford as adequate and effective relief as can be achieved by injunction. See, MPI, Inc. v. McCullough, 463 F.Supp. 887, 902 n. 18 (N.D.Miss.1978). The prayer for relief seeks a prohibition against granting a franchise for the Johnson County, Missouri, area to anyone other than plaintiffs. Article II(I) of the Dealer Agreement provides that GM reserves the right to appoint additional dealers, but “this right will not be exercised without making a survey of marketing factors in the area of a possible new dealership location.” A dealer is entitled to notice of a proposed new dealership and of “an opportunity to present information relevant to the survey.” While none of the parties apparently anticipate that a Harness dealership will operate in competition with a Maude dealership, the sound way to avoid such competitive activity would be to reinstate the Maude dealership and allow (1) termination pursuant to law, as set forth in this opinion or (2) creation of a Harness dealership in Maude's territory only upon compliance with Article II(I). It is therefore ORDERED that defendant refrain from establishing another Chevrolet-Cadillac dealership in plaintiffs' territory except in accordance with Article II(I) of the dealership agreement of February 7, 1985, or after termination of the plaintiffs' dealership in accordance with law and with this opinion. Judgment is entered in favor of plaintiffs on Count V. Jurisdiction is retained to enforce or modify this order.

Maude v. General Motors Corp.Eyeglasses, United States District Court, W.D. Missouri, Western Division, January 22, 1986, 626 F.Supp. 1081(“GM's purported cancellation of the Maude dealership relies on his failure to operate for seven consecutive business days, in violation of Article IV(A)(2)(i) of the Dealer Agreement. Maude contends, however, that nine months' notice should have been given, under Article IV(A)(3), requiring such extended notice when there is failure to provide “adequate premises.” Because the adequacy of premises is not in question, but rather the failure to provide any place to operate the business, it appears that notice was given under the correct paragraph of the Dealer Agreement., is superseded by deregulation as to termination notice periods under § 407.825 (listing unlawful practices by motor vehicle franchisors).” Defendant now strenuously asserts that a second aspect of the statutory question is whether there is any such generally applicable ninety day termination notice requirement in § 407.405, RSMo. Assuming for the moment that such a period is specified for Missouri franchises in general, it seems clear that the auto dealer franchise legislation enacted in 1980 does not repeal this requirement. Such repeals by implication are disfavored. , and I therefore turn to that statute. Oral argument and briefing suggest, moreover, that GM's most serious contention is that I should rethink the cryptic observation in the Earley Ford case, and hold that § 407.405 does not really establish a ninety day notice period of general applicability. I have reconsidered the issue. Without belaboring the legislative history of the pertinent sections, through reprinting pertinent paragraphs from the 1974 and 1975 enactments of the General Assembly, the interested reader is referred to the appendix to the Missouri Supreme Court decision in Brown-Forman Distillers Corp. v. McHenry, 566 S.W.2d 194, 198–200 (Mo.Sup. en banc, 1978). The 1974 text also appears in Historical Note to § 407.400, RSMo, 21 VAMS. It seems clear from the text that from the time of initial enactment of the legislation in 1974, a person who has granted a “franchise” has been prohibited from giving less than ninety days' notice of cancellation (with exceptions to be reviewed later). There has, however, been a change in the statutory definition of franchises, as set forth in § 407.400, RSMo. The 1974 definition of franchise was quite straight-forward (clearly including motor car dealerships, for example) except that it purported to exclude “persons engaged in sales from warehouses.” The 1975 revision has proved to be confusing, partly because it now contains a 38-line sentence defining the term “franchise.” It seems clear, however, from the italicized portions set forth in the Brown-Forman case, 566 S.W.2d at 199, that the warehouse sales exclusion proved troublesome in the liquor industry, and that it became appropriate to explain what was covered in that industry. A lengthy statement, applicable only to that industry, was added to the definition. Except for the liquor industry, the coverage of the 1974 act remained intact. This analysis of the 1975 legislation (the “liquor amendment”) is consistent with an affidavit supplied in 1984 by former state Senator Spradling for use in certain state court litigation. The conclusion I reach is inconsistent, however, with an observation by Senator Spradling that the “intent” of the 1974 legislation was “to deal solely with pyramid sales schemes” and the statute “referred to franchises only in connection with their use in pyramid sales schemes.” The use of an unexplained current opinion is one of the least favored methods of showing legislative history and is generally, I believe, rejected. In this case, moreover, the statement obtained is simply contrary to the text of the 1974 legislation, considered as a whole. The pyramid scheme portion of the 1974 law prohibits such schemes, and declares pyramid scheme contracts void. It is difficult to imagine why there would be a protective notice period enacted in connection with termination of a void agreement. Contrary to the recent statement of views of Senator Spradling, the Missouri Supreme Court has already said, quite correctly, that the 1974 legislation “related to what we believe are ... two types of merchandising practices: ‘pyramid sales schemes and franchise security.’ ” Brown-Forman Distillers Corp. v. McHenry, supra, 566 S.W.2d at 197. The present case involves “franchise security.” The result reached in this litigation has been repeatedly forecast, with one reported exception, by judicial decisions and commentators.Chmieleski v. City Products Corp., 660 S.W.2d 275, 295 (Mo.App.1983);  Bain v. Champlin Petroleum Co., 692 F.2d 43, 48 (8th Cir.1982)(Regan, Senior District Judge); Palmer and Monica, Franchises: Statutory and Common Law Causes of Action in Missouri, 45 Mo.L.Rev. 42, 53 (1980) 2  The only exception *1086 appears to be an Eighth Circuit opinion by Senior Circuit Judge Peck of Ohio, who “questioned” the applicability of the law to a beer franchise, apparently erroneously assuming that the 1975 legislation considerably narrowed the coverage of the 1974 legislation.  ABA Distributors, Inc. v. Adolph Coors Co., 661 F.2d 712, 715 n. 4 (8th Cir.1981). While I am of course bound to follow the Eighth Circuit, the latest controlling ruling is in Bain. A post-hearing brief filed this week by GM now raises a constitutional argument. It is said that § 407.413 , which is expressly limited to liquor franchises, would be in danger as a “special law” if § 407.405  were construed as being of general applicability. This belated contention has only colorable validity. In any event I would not feel authorized to misconstrue  § 407.405  in order to save  § 407.413. It is therefore concluded that Maude was entitled, by statute, to ninety days' notice, unless his situation falls within one of the statutory exceptions. 3 Ninety days' notice is excused when a franchisee is guilty of criminal misconduct, has taken bankruptcy or has taken other specified actions for which immediate termination is authorized.  Section 407.405, RSMo.  The only conduct asserted by GM that would permit termination without notice is the alleged “abandonment” of the franchise. GM initially asserted there was an abandonment when Maude allegedly “would not or could not come up with the monies which were demanded by the seller” for the premises, or that there was an “involuntary” abandonment when the seller took bankruptcy. 3 Neither of these circumstances can fairly qualify for the statutory exception. Maude continued actively pursuing the dealership opportunity, as it relates to the premises, until he finally obtained the premises in October 1985. The recitation of events to which the parties have stipulated is inconsistent with the contention that there was an abandonment.”)

Ridings v. Thoele, Inc., Supreme Court of Missouri, En Banc.November 17, 1987, 739 S.W.2d 547 4 (“Abandonment is largely a question of intention. Russell v. Allen, 496 S.W.2d 290, 294 (Mo.App.1973). The burden is on one claiming an abandonment to establish the condition by clear and unequivocal evidence. Ibid. Nothing has been presented which would permit a trier of fact to infer that Maude had decided neither to use nor retake the franchise. Wirth v. Heavey, 508 S.W.2d 263, 267 (Mo.App.1974). Even if it could be concluded that Maude should have been more generous in his business dealings with the seller, or that bankruptcy had temporarily made it impossible to operate, adopting a theory of constructive abandonment would be inconsistent with the remedial purposes of the legislation. 5 A statutory violation having been shown, I could be expected to follow Judge Oliver's view that the appropriate remedy is to reinstate the franchise until proper notice is given. ABA Distributors, supra. GM urges, however, that I conclude that Maude's remedy at law is adequate. Most of the cases cited deal with preliminary injunctions, where a plaintiff's claim is sometimes given quite critical analysis. Even in those cases, however, where damage remedies are uncertain or verge on speculation, relief is often given. Earley Ford, supra. While Maude might be able to establish in this case what his out-of-pocket losses and expenses have been, an equally significant aspect of a franchise is the element of lost profits or prospects. *1087 Since Maude did not in fact have an opportunity to exercise the franchise, GM would doubtless argue with some force that a claim for lost profits is speculative. It follows from such a contention that the damages allowed in a lawsuit would not be fully adequate. It is the general rule in Missouri and elsewhere that equitable relief will be granted when a violation of law has been shown, “if the remedy at law is not clear, complete and as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” Hughes v. Neely,332 S.W.2d 1, 7 (Mo.Sup.1960). That is surely the case here, where a damage suit presented to a jury would not afford as adequate and effective relief as can be achieved by injunction. See, MPI, Inc. v. McCullough, 463 F.Supp. 887, 902 n. 18 (N.D.Miss.1978). The prayer for relief seeks a prohibition against granting a franchise for the Johnson County, Missouri, area to anyone other than plaintiffs. Article II(I) of the Dealer Agreement provides that GM reserves the right to appoint additional dealers, but “this right will not be exercised without making a survey of marketing factors in the area of a possible new dealership location.” A dealer is entitled to notice of a proposed new dealership and of “an opportunity to present information relevant to the survey.” While none of the parties apparently anticipate that a Harness dealership will operate in competition with a Maude dealership, the sound way to avoid such competitive activity would be to reinstate the Maude dealership and allow (1) termination pursuant to law, as set forth in this opinion or (2) creation of a Harness dealership in Maude's territory only upon compliance with Article II(I). It is therefore ORDERED that defendant refrain from establishing another Chevrolet-Cadillac dealership in plaintiffs' territory except in accordance with Article II(I) of the dealership agreement of February 7, 1985, or after termination of the plaintiffs' dealership in accordance with law and with this opinion. Judgment is entered in favor of plaintiffs on Count V. Jurisdiction is retained to enforce or modify this order. ”) Prior to enactment of 407.405, the power of a franchisor to terminate without notice was not unqualified; at the same time, a franchisee's remedy for termination without notice was not categorically unlimited. In Bain v. Champlin Petroleum Co., 692 F.2d 43 (8th Cir.1982), it was observed: Missouri common law is clear that the provisions of the contract govern the right, vel non, of a franchisor to terminate a franchise relationship with the important qualification that if the franchisee has in good faith incurred expense and devoted time in building his business he is entitled to a continuation of the relationship for a reasonable time to enable him to recover his investment. Id. at 48 (emphasis supplied) (citing Gibbs v. Bardahl Oil Co., 331 S.W.2d 614 (Mo.1960)); accord, Beebe v. Columbia Axle Co., 233 Mo.App. 212, 218, 117 S.W.2d 624, 629 (1938) (franchisee entitled to recoup capital investment where notice neither given nor required by agreement). The legislature, through section 407.405, made the duty to provide prior notice of termination unequivocal, and codified the limited remedy under Missouri common law espoused in early cases such as Beebe. We hold that, under the Hawkins criteria, respondents enjoyed no greater in-kind remedial rights before the enactment of section 407.410.2 than afterward, and are not entitled to recover punitive damages under the statute. The judgment is affirmed as to the award of actual damages; the punitive award is reversed. All concur.”)

Tom Pappas Toyota, Inc. v. Toyota Motor Distributors, Inc., United States District Court, E.D. Missouri, Eastern Division, January 18, 1990729 F.Supp. 71 (“The issue before the Court, whether punitive damages are available under the Missouri Motor Vehicle Franchise Practices Act, is one of first impression. However, in Ridings v. Thoele, 739 S.W.2d 547 (Mo.1987) (en banc), the Missouri Supreme Court addressed the question of the availability of punitive damages under the Pyramid Sales Scheme Statute, *72 R.S.Mo. § 407.400, a companion statute to the provisions at issue here. See C & J Delivery, Inc. v. Emory Airfreight Corp., 647 F.Supp. 867, 873 n. 1 (E.D.Mo.1986). In Ridings the plaintiff, a franchisee, sought to recover punitive damages pursuant to R.S.Mo. § 407.410–2 for the defendant franchisor's alleged failure to provide timely notice of termination as required by R.S.Mo. § 407.405. Ridings, 739 S.W.2d at 548. Section 407.410.2, the damages provision at issue in Ridings provides that a prevailing franchisee may recover “damages sustained ... includ[ing] loss of goodwill, cost of the suit, and any equitable relief that the court deems proper.” In order to determine whether this provision entitled plaintiff to an award of punitive damages, the Missouri Supreme Court applied the analysis announced in Hawkins v. Burlington Northern, Inc., 514 S.W.2d 593 (Mo.1974). In Hawkins, the Missouri Supreme Court held that: Where a statute prescribing a remedy does not create a new right or liability, but merely provides a new remedy for an independent right or liability already existing, the general rule is that the remedy thus given is not regarded as exclusive but as merely cumulative of other existing remedies, and does not take away a preexisting remedy, or as more specifically stated if a statute gives a new remedy in the affirmative, and contains no negative, express or implied, of the old remedy, the new remedy is merely cumulative; and in such a case, the party having the right may resort to either the preexisting or the new remedy.... Hawkins, 514 S.W.2d at 598 (quoting 1 C.J.S. Actions § 6c). Applying the principle announced in Hawkins, the court in Ridings therefore considered whether the Missouri Pyramid Sales Scheme Act, R.S.Mo. § 407.400 et seq., expanded the common law rights or remedies of terminated franchisees. Ridings, 739 S.W.2d 548–49. The court concluded that the statute “codified the limited remedy” available under Missouri common law prior to its enactment and did not entitle plaintiffs to recover punitive damages. Id. at 549. The court found further support for its determination in the language of the statute which in its view “evince[s] a compensatory purpose” rather than “an intent to punish or make [an] example of a recalcitrant franchisor.” Id. at 549 n. 4. Proper application of Ridings to plaintiff's claim for punitive damages requires this Court to make a two-fold determination: 1) whether punitive damages are recoverable under the common law for the conduct of which plaintiff complains, and 2) whether the statute is merely cumulative of the common law. See Ridings, 739 S.W.2d at 549. In Count III plaintiff alleges statutory and common law claims for willful and malicious breach of the duty of good faith and fair dealing in a franchise relationship. Under the common law, such claims do not entitle the plaintiff to punitive damages unless plaintiff alleges sufficient facts to state a claim for an independent and willful tort such as tortious interference with business relationship or prima facie tort. Machine Maintenance v. Cooper Indus., Inc., 634 F.Supp. 367, 372 (E.D.Mo.1986). Plaintiff does not contend that the allegations of Count III give rise to a claim for an independent and willful tort.1 Thus, punitive damages are not recoverable under the common law for the conduct of which plaintiff complains. The statute does not preclude plaintiff from pursuing other common law bases of recovery. Therefore, the case where a plaintiff proves that the breach of the duty of good faith and fair dealing amounted to an independent tort, he may recover punitive damages in conjunction with the recovery for the tort. Cf. Machine Maintenance, 634 F.Supp. at 372. However, where allegations and proof of an independent, willful tort are absent, there is no basis for recovery of punitive damages under the statute. Having concluded that punitive damages generally are not recoverable for the conduct of which plaintiff complains, the Court *73 need not reach the second prong of the Ridings analysis. Accordingly, defendants' motion for judgment on the pleadings as to plaintiff's claim for punitive damages in Count III will be granted.”)

Bishop v. Shelter Mut. Ins. Co., Missouri Court of Appeals, Southern District, Division Two, March 31, 2004129 S.W.3d 500 (“Plaintiff's first point maintains the trial court erred in granting summary judgment “because Missouri recognizes a cause of action for breach of the covenant of good faith and fair dealing even where the employment relationship is terminable at-will.” Plaintiff bases his argument on the general rule that there is an implied covenant of good faith and fair dealing in all contracts. See RESTATEMENT (SECOND) OF CONTRACTS. § 205 (1981) He further argues that summary judgment was inappropriate because material issues of fact remain as to Defendant's bad faith in its dealings with Plaintiff, including his termination. Plaintiff relies heavily on two cases to support his Point I arguments. *504 First, he cites Sloan v. Bankers Life & Cas. Co., 1 S.W.3d 555 (Mo.App.1999). There, Sloan operated under an “agent contract” with Bankers Life. Id. at 558. He started with Bankers Life in 1953 and worked strictly on a commission basis. He set his own hours, paid his own expenses, and maintained his own office at his expense. Ultimately, a dispute arose between Bankers Life and him over “turning 65 lists,” which Sloan used to sell supplemental Medicare insurance. When Sloan sued Bankers Life, he asserted multiple claims, including a count for breach of the duty of good faith and fair dealing. Significantly, however, Sloan's suit was filed before Bankers Life terminated his agency contract. Moreover, the issue of whether Bankers Life owed a duty of good faith and fair dealing to Sloan was not addressed on appeal. Specifically, the Sloan court noted: “Bankers Life elected not to cross-appeal the denial of its motion for JNOV. Bankers Life, however does not concede the submissibility of [Sloan's] claim [for breach of the duty of good faith and fair dealing], arguing that [Sloan's claim] was not submissible, and did not constitute a cause of action. These arguments are mentioned only as support for affirming the grant of a new trial as to the entire claim. It is interesting that Banker's Life did not appeal the denial of the JNOV, because if [Sloan] cannot make a submissible claim, it would not be expedient to retry the case. The issues related to the validity and submissibility of [Sloan's] claim [for breach of good faith and fair dealing] are not significantly developed by the parties in this appeal, and we decline to wade into those murky waters, without the benefit of extensive and focused briefing.” Id. at 568, n. 8 (emphasis supplied). We find the Sloan case factually inapposite, in that the good faith and fair dealing suit was filed while Sloan was still working under his agency contract. Those are not the facts of this case. More than that, the Sloan court refused to address the issue of whether a party operating under a terminable at-will agency contract with an insurance company can maintain a cause of action against the company for breach of an implied duty of good faith and fair dealing. In sum, Sloan does not support Plaintiff's claim. Plaintiff's second case is Machine Maintenance & Equipment Co., Inc. v. Cooper Indus., Inc., 634 F.Supp. 367 (E.D.Mo.1986). There, Machine Maintenance sold, repaired, and replaced Cooper's compressors under its Gardner–Denver product line. The parties operated under a distributorship agreement that prescribed different procedures and time frames for termination, depending on whether termination was for cause or without cause. After Cooper terminated the agreement for alleged cause, Machine Maintenance's six-count suit against Cooper included a claim that Cooper had breached an implied duty of good faith and fair dealing. In denying Cooper's motion for summary judgment, Judge Gunn concluded generally that, under Missouri law, parties to a distributorship agreement have an obligation of good faith and fair dealing. Id. at 371. Specifically, he held that Machine Maintenance could not base its claim for breaching the duty of good faith and fair dealing upon a “without cause” termination by Cooper (as that was a right specifically reserved by the contract), yet “[i]f in exercising this right ... [Cooper] acted in bad faith to interfere with [Machine Maintenance's] rights under the contract, a cause of action for breach of the duty of fair dealing would arise.” Id. at 371–72. As authority for his latter pronouncement, Judge Gunn relied on a case that applied South Carolina law, *505 deTreville v. Outboard Marine Corp., 439 F.2d 1099, 1100 (4th Cir.1971). Plaintiff's reliance on Cooper is misplaced. He fails to recognize that although Missouri policy, both at common law and by statute, is to protect franchisees and those operating under distributorship agreements from the onerous effects of bad faith at-will termination, see Ridings v. Thoele, Inc., 739 S.W.2d 547, 548–49 (Mo.banc 1987); Armstrong Bus. Services, Inc. v. H & R Block, 96 S.W.3d 867, 877–79 (Mo.App.2002); Beebe v. Columbia Axle Co., 233 Mo.App. 212, 117 S.W.2d 624, 628–29 (1938), that rule is unique to franchise/distributorship type agreements. This is explained in Armstrong as follows: “Because of the large investment of capital, time, and effort, the duration of a franchise agreement is very important to a potential franchisee. If the franchisor is totally free to terminate and deny renewal of a franchise after a relatively short duration, the franchisee is significantly disadvantaged because the equity built up in the franchisee's business is jeopardized. Missouri policy, however, protects franchisees at termination of franchise relationships.” 96 S.W.3d at 878 (citations omitted). Here, neither Plaintiff's petition, nor his response to Shelter's summary judgment motion, invoked the franchisee or distributorship protection described in Armstrong. Since Plaintiff relies so heavily on Cooper, he apparently would have us find he is entitled to the protection from bad faith termination afforded franchisees or distributors. We find no authority, however, for expanding the “franchisee protection” rule as requested, and the rationale of Cooper does not suggest that result. As already noted, Cooper relied heavily on deTreville, 439 F.2d 1099, which applied South Carolina law. Significantly, South Carolina makes the same fundamental distinction between employment at-will issues and franchise or distributorship agreements, as does Missouri. Compare Prescott v. Farmers Telephone Coop., Inc., 335 S.C. 330, 516 S.E.2d 923 (1999), and Carolina Cable Network v. Alert Cable T.V., 316 S.C. 98, 447 S.E.2d 199 (1994). Based on the record presented here, neither Cooper nor Sloan supports Plaintiff's point relied on. Since Plaintiff's principal case authority does not support his position, we look elsewhere to analyze his arguments. As a general statement, a covenant of good faith and fair dealing is present in every contract. Mo. Consol. Health v. Cmty. Health Plan, 81 S.W.3d 34, 45 (Mo.App.2002); Martin v. Prier Brass Mfg. Co., 710 S.W.2d 466, 473 (Mo.App.1986). If such a term is not expressed in the contract, then it will be implied. 23 SAMUEL WILLISTON & RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS § 63:22 at 506 (4th ed.2002). Another general principle is that “there can be no breach of the implied promise or covenant of good faith and fair dealing where the contract expressly permits the actions being challenged, and the defendant acts in accordance with the express terms of the contract.” 23 WILLISTON § 63:22 at 516; see also Kassebaum v. Kassebaum, 42 S.W.3d 685, 696 (Mo.App.2001) (finding, “there can be no implication where the subject is completely covered by the contract”); RESTATEMENT (SECOND) OF CONTRACTS § 205 reptr's note at 103 (citing Sessions, Inc. v. Morton, 491 F.2d 854 (9th Cir.1974)). Missouri has adopted the general principle of implied covenants of good faith and fair dealing as expressed in the RESTATEMENT (SECOND) OF CONTRACTS § 205 (1981). Mo. Consol. Health, 81 S.W.3d at 45 n. 3. However, Missouri also follows the *506 employment at-will doctrine. Dake, 687 S.W.2d at 193. As such, the reason for an employee's termination is inconsequential and irrelevant, unless the firing violates a statute or public policy. Emerick v. Mut. Ben. Life Ins. Co., 756 S.W.2d 513, 522 (Mo.banc 1988); Dake, 687 S.W.2d at 193; Costello v. Shelter Mut. Ins. Co., 697 S.W.2d 236, 237 (Mo.App.1985). It is clear that “Missouri law concerning at will employees may not be circumvented by an employee who alleges a contract of good faith and fair dealing between the employer and employee.” Neighbors v. Kirksville College of Osteopathic Medicine, 694 S.W.2d 822, 824[2] (Mo.App.1985). In summary, the Missouri employment at-will doctrine expressly prohibits any consideration of the implied covenant of good faith and fair dealing (inherent in all contracts) when an employer is sued for terminating the employee. This follows because the implied covenant cannot be used to contradict or override the express employment terms contained in a contract, i.e., that an employee can be terminated for any cause. When a contract does not provide a definite period for employment and fails to include provisions related to reasons for termination, the good faith and fair dealing covenant cannot be implied to supersede the express agreement that the employee can be fired without cause. We pause to acknowledge that the employment relationship here is not that typically found in at-will cases. The agency contract provided that Plaintiff was an independent contractor, but the relationship could be terminated upon written notice. Such agreements have been characterized as agency contracts “terminable at will.” Costello, 697 S.W.2d at 237. In such situations, whether labeled an independent contractor or employee, the relationship and termination of it is governed by general principles enunciated in the at-will doctrine cases. See, e.g., Emerick, 756 S.W.2d at 521–22; Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262, 270–71 (1940); Costello, 697 S.W.2d at 237. In apparent recognition of this, both parties seem to agree that the case is governed by the employment at-will doctrine.”)

Danella Southwest, Inc. v. Southwestern Bell Telephone Co., United States District Court, E.D. Missouri, Eastern Division, October 16, 1991775 F.Supp. 1227 (“Mr. Danella spent 2½ million dollars in start-up costs for plaintiff. In order to recoup that investment plaintiff had to do business with defendant for approximately six years. Plaintiff had only done business with defendant for 3½ years when defendant terminated their relationship. Plaintiff alleges that defendant breached an implied duty to do business with plaintiff until plaintiff had an opportunity to recoup its investment. Missouri law does not yet recognize a general opportunity to recoup an investment. Franchisees and distributors have been afforded an opportunity to recoup their investment. In *1238 Ridings v. Thoele, Inc., 739 S.W.2d 547 (Mo. banc 1987), the court stated: Missouri common law is clear that the provisions of the contract govern the right, vel non, of a franchisor to terminate a franchise relationship with the important qualification that if the franchisee has in good faith incurred expense and devoted time in building his business he is entitled to a continuance of the relationship for a reasonable time to enable him to recover his investment. 739 S.W.2d at 549 (quoting Bain v. Champlin Petroleum Co., 692 F.2d 43 (8th Cir.1982)). In Cambee's Furniture, Inc. v. Doughboy Recreational, Inc., 825 F.2d 167 (8th Cir.1987) (interpreting South Dakota law), the court stated: A distributor is entitled to a reasonable period to recoup its investment, during which the agreement may not be terminated without good cause. After the reasonable recoupment period has expired, the distributorship agreement becomes terminable at will upon reasonable notice. 825 F.2d at 173. Because plaintiff is neither a franchisee nor a distributor, this theory of relief is not available to plaintiff. Furthermore, the Court will not extend to plaintiff the recoupment of investment protection enjoyed by franchisees and distributors. In the franchise and distributorship cases the investment of the plaintiff was lost when franchise/distributor contract was terminated. In the instant matter plaintiff was an excavation and construction company. Although plaintiff's operation was geared toward serving power companies, and plaintiff worked primarily for defendant, the skills of its plaintiff's employees and uses of its machinery enabled plaintiff to do excavation and construction work for other clients beside defendant. In fact, plaintiff had expanded its business in Missouri to serve ConTel and other clients. In sum, the common law of Missouri does not provide for a general opportunity to recoup its investment. Although franchisees and distributors have been afforded this opportunity, the Court will not step foot onto new ground and provide this right to every businessman, particularly sophisticated ones like Mr. Danella, who do business without the security of a contract of a definite duration.”)

Lastra v. Intercontinental Investments Co., Inc., Missouri Court of Appeals, Western District, December 22, 1987, 745 S.W.2d 703 (“The primary purpose of all statutory construction and application is to ascertain the intent of the legislature. A statute is not to be subjected to such a strained or narrow interpretation of the language as to defeat the purpose of the enactment. Cook v. Burke, 693 S.W.2d 857, 861 (Mo.App.1985). If a statute gives a remedy in the affirmative for a matter which was actionable at common law, this does not take away the common law remedy. But where a new right or means to acquire the right are given and the statute also provides an adequate remedy, then the injured parties are confined to the statutory remedy. Everett v. County of Clinton, 282 S.W.2d 30, 34 (Mo.1955); see also Ridings v. Thoele, Inc., 739 S.W.2d 547 (Mo. banc 1987).)”

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