missouri civil trial & appellate practice 2016 update

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Civil Trial & Appellate Practice| Missouri Bar’s 2016 Annual Law Update

Drey Cooley, ShareholderCapes, Sokol, Goodman & Sarachan, P.C.7701 Forsyth Blvd., 12th FloorSt. Louis, MO [email protected]@dreycooley

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• Written materials are exhaustive; this presentation is not.

• Major Missouri cases / rule changes

• Attempt to:

• Summarize first impression issues

• Highlight “Repeat Offenders”

• Provide practical tips

Methodology for Selection of Cases

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• Wills v. DePriest, No. ED 103867, 2016 WL 402194 (Mo. Ct. App. February 2, 2016)

• Company 1 (based in Arizona) and Company 2 (based in St. Louis County) enter into contract, which has St. Louis County forum selection clause.

• Company 2 sues Company 1 and its officers (who signed the contract) for breach of contract in St. Louis County.

• Officers filed Motion to Dismiss for lack of personal jurisdiction. • Trial Court denied Motion, because contract had individual’s initials at

bottom of each page, without an indication as to their representative capacity.

Jurisdiction

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• Holding: No Jurisdiction

• General rule is that individual who signs on behalf principal is not liable, where principal is disclosed and capacity of individual signing is evident.

• While initials can constitute signature, the name of the corporation appears in the contract. Signature of agent, therefore, need not further state corporate name or the fact that agent is signing on behalf of the corporation.

Jurisdiction

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• Practice Tips:

• Two signature lines (Contracts, Engagement Letters)

• If the contract does not state corporate name in signature line, you should be ok if contract identifies that corporation is the party and the signer is a corporate agent.

Jurisdiction

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• Franklin v. Burlison, 469 S.W.3d 498 (Mo. Ct. App. 2015)

• Trial court erroneously grants Motion to Transfer Venue.

• Trial Court sets aside Order, after it determines venue statute upon which it relied was incorrect.

• Trial Court had no authority to do so, because file was already received by new county.

• Trial Court only has authority to do so before the papers or transcript are filed in the receiving court any only with the consent of parties.

Venue

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• Ellis v. JF Enterp., LLC, 482 S.W.3d 417 (Mo. banc 2016)

• Under FAA, arbitration agreements are severable and must be considered separate and apart from underlying or related agreements.

• They are enforceable, even if rest of agreement is unenforceable, so long as, when considered separately, they comply with state law principles.

Arbitration

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• Isselhard v. Dolan, 465 S.W.3d 496 (Mo. Ct. App. 2015)

• Facts: Plaintiff voluntarily dismissed medical negligence action. Under savings statute, Plaintiff was required to re-file within 1 year of dismissal. Because Plaintiff dismissed her previous Petition on January 14, 2014, she was required to re-file her Petition by January 13, 2015. Plaintiff filed her new Petition on January 13, 2015, but it was not accepted by clerk due to minor filing deficiencies (failure to add Defendant’s name on electronic form). Consequently, it was resubmitted by Plaintiff on January 15, 2015. The new Petition was accepted and file stamped on January 15, 2015.

Pleading

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• Isselhard v. Dolan, 465 S.W.3d 496 (Mo. Ct. App. 2015)

• The petition was received by the electronic filing system on January 13, 2015. The petition should have been accepted as of that date.

• Practice Tips: (1) Don’t wait until the last day; (2) Make sure Petition itself is accurate. (“We are aware of no law, court rule, or specific court order authorizing the court clerk to reject the filing of the petition for such a minor technical deficiency.”).

Pleading

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• Allen v. Titan Propane, LLC, No. SD33716, 2016 WL 1253904 (Mo. Ct. App. Mar. 30, 2016)

• Per Rule 55.01 affirmative defenses must be pled, or they are waived.

• Exception: Defendant may file Motion to Dismiss based upon an affirmative defense, where it appears on the face of the petition that an affirmative defense is applicable.

• Motion to Dismiss must describe how affirmative defense appears on the face of the petition.

Pleading

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• Allen v. Titan Propane, LLC, No. SD33716, 2016 WL 1253904 (Mo. Ct. App. Mar. 30, 2016)

• “For an affirmative defense to be sustained upon a bare motion to dismiss, the defense must be irrefutably established by the plaintiff's pleading. This is but the corollary of the accepted rule that the burden of proof of an affirmative defense rests upon the one asserting the defense.”

Pleading

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• Bate v. Greenwich Insur. Co., 464 S.W.3d 515 (Mo. banc 2015)

• Mo. Rev. Stat § 375.906 vs. Rules 54.15 and 54.20

• § 375.906 requires service on Director of Dept. of Insurance, and Director of Dept. of Insurance to (1) forward to Defendant by first class mail; and (2) file affidavit of compliance with trial court.

• Rule 54.15 and 54.20 collectively require certified or registered mail and that the return receipt be attached to the trial court filing.

Service

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• Bate v. Greenwich Insur. Co., 464 S.W.3d 515 (Mo. banc 2015)

• Plaintiff complied with § 375.906, but not Rules 54.15 and 54.20.

• Though Rule 54.15 requires certified/registered mail, it is not a supplement to § 375.906.

• Rule 54.18 provides that “where a statute contains provisions for a method of service, service may be made pursuant to the provisions of the statute or as provided by these Rules.”

Service

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• Highfill v. RPCS, Inc., 469 S.W.3d 1 (Mo. Ct. App. 2015) (Southern District)

• Ruling is not particularly important. Dicta footnote, however, is.

• ITT Commercial Finance potentially in conflict with White v. DOR, 321 S.W.3d 298, 305-08, 311 (Mo. banc 2010) which distinguishes between uncontroverted and uncontested proof.

Summary Judgment

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• Highfill v. RPCS, Inc., 469 S.W.3d 1 (Mo. Ct. App. 2015) (Southern District)

• ITT requires Plaintiff to demonstrate that the uncontroverted facts show that it is entitled to judgment as a matter of law.

• However, White says that only when evidence is uncontested does issue become one of law. A party, however, can contest evidence without controverting it (e.g., credibility of witness through witness’s demeanor).

Summary Judgment

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• Pulaski Bank v. C.W. Holdings, LLC, No. ED 102563, 2016 WL 2340565 (Mo. Ct. App. May 3, 2016)

• Facts: Plaintiff filed for summary judgment on Defendant’s Counterclaim; however, Plaintiff never filed an answer to the Counterclaim. Defendant, for the first time, at the summary judgment stage, raised the issue of Plaintiff’s failure to file an answer.

• “The failure to file an Answer is effective as an admission only if the plaintiff has objected to such failure ... although the filing of an Answer is mandatory, this requirement is waived unless the opposing party requests enforcement of the mandate by timely and proper action.”

Summary Judgment

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• Pulaski Bank v. C.W. Holdings, LLC, No. ED 102563, 2016 WL 2340565 (Mo. Ct. App. May 3, 2016)

• Practical Tip: You must file a motion demanding an Answer or Motion for Default Judgment. No surprises.

• Several cases detailing requirement of SOF in Rule 74.04: One fact per SOF, separate from memo, “specific references” to record.

Summary Judgment

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• SKMDV Holdings, Inc. v. Green Jacobson, P.C., No. ED 102493, 2016 WL 1469995 (Mo. Ct. App. April 12, 2006)

• Facts: Original Judgment for $10,500,000 entered against Defendant on November 12, 2014 following jury verdict, which did not award post-judgment interest. Defendant filed Motion for JNOV or, in the alternative, new trial on December 11, 2014. Plaintiff did not file a post-trial motion. On December 29, 2014, the Court denied Defendant’s Motion. On January 6, 2015, the Trial Court filed an Amended Judgment, stating that the parties requested an Amended Judgment be entered and ordered post-judgment interest.

Post-Trial Motions

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• Even though mandated by statute, the award of post-judgment interest must be included in the original judgment to which it applies or in a timely amendment to that judgment.

• Trial Court erred in amending judgment to add post-judgment interest award, because it was entered after the Court lost jurisdiction over the judgment.

Post-Trial Motions

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• Trial Court’s ability to amend or correct judgment is limited to 30 days under Rule 75.01, unless an authorized post-trial motion is filed under Rule 78.04, which extends the time period for 90 days.

• However, if a post-trial motion is filed, the only thing the Court can do after 30 days is address the actual points raised in the post-trial motion.

• No motion requested post-judgment interest. Therefore no post-judgment interest on 10.5 million.

Post-Trial Motions

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• Parker v. Dubois, No. ED 103447, 2016 WL 2731916 (Mo. Ct. App. May 10, 2016)

• Rule 84.04 details briefing requirements.

• Compliance is mandatory so that appellate courts do not become advocates by speculating on facts and on arguments that have not been made.

• Violations of Rule 84.04 are grounds for a court to dismiss an appeal.

• 84.04(a): Table of Contents, Jurisdictional Statement, Statement of Facts, Points Relief Upon, Argument, and Conclusion.

Briefing Requirements (This Year’s Guinea Pig)

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• 84.04(b) Jurisdictional Statement inadequate: “The trial court granted judgment in favor of the appellee, Dubois, on his Motion for Summary Judgment. The trial court in Cape Girardeau made its judgment final and appealable on all issues.”

• 84.04(b) requires sufficient facts to demonstrate the applicability of a particular provision of Article V, section 3, whereon the jurisdiction of this court is predicated.

• 84.04(b) provides an example. Just follow it.


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• “Bare recitals that jurisdiction is invoked "on the ground that the construction of the Constitution of the United States or of this state is involved" or similar statements or conclusions are insufficient as jurisdictional statements.”


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• 84.04(c): It does not contain a fair statement of facts. Instead, it is full of argument. “The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument.”

• 84.04(c): Failure to provide specific reference to legal file in statement of facts. “All statements of facts shall have specific page references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits. If the matter cited is contained in the appendix, a page reference to the appendix shall be included.”


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• 84.04(d)(1): Points Relief On must comply with form provided in the rule. Just follow it. “The trial court erred in [identify the challenged ruling or action ], because [state the legal reasons for the claim of reversible error ], in that [explain why the legal reasons, in the context of the case, support the claim of reversible error ].”

• 84.04(e): Failure to include a concise statement of the applicable standard of review. “The argument shall also include a concise statement of the applicable standard of review for each claim of error.”


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• Rule 83.02 (Transfer by Appellate Court)

• Application to transfer due 15 days after Appellate Court Opinion.

• unless for good cause shown the court of appeals extends the time for filing. (January 2016 Amendment)

Appellate Motions

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• Rule 83.04 (Transfer by Supreme Court)

• Application to transfer due 15 days after Appellate Court denies transfer.

• unless for good cause shown this Court extends the time for filing. No extension shall be granted if the court of appeals has issued its mandate which is still in effect. (January 2016 Amendment)

Appellate Motions

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• Rule 83.04 (Transfer by Supreme Court)

• Upon a showing of good cause, an application for transfer may be filed out of time, but no application for transfer shall be filed if the court of appeals has issued its mandate that is still in effect. (July 1, 2016 Amendment)

• No motion for reconsideration of denial to file out of time may be filed. (July 1, 2016 Amendment)

Appellate Motions

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• Feldmann v. Ellefsen, No. SD 33981, 2016 WL 1601241 (Mo. Ct. App. April 20, 2016)

• Facts: Plaintiffs sue Defendant for medical malpractice. Special Process Server appointed to serve Defendant, who filed a return of service stating that he served Defendant. After no answer was filed, the Court granted a Motion for Default Judgment against Defendant. Less than a year later, Defendant filed a Motion to Set Aside, attaching an affidavit from Defendant stating that he was not served. Trial Court conducted a hearing, at which the Special Process Server testified that he served Defendant. Trial Court found Special Process Server’s testimony credible and denied Motion to Set Aside. Defendant filed a Motion for Reconsideration. At the hearing, Defendant testified that he was not served. The Court denied the Motion for Reconsideration.

Preservation of Error

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• Feldmann v. Ellefsen, No. SD 33981, 2016 WL 1601241 (Mo. Ct. App. April 20, 2016)

• Defendant Filed Notice of Appeal alleging trial court had no jurisdiction to enter default judgment, because special process server did not file affidavit under 54.20(a)(2).

• Had jurisdiction over any civil action. (Webb).

• Nonetheless, not preserved for review. Should have raised failure to comply with Rule with trial court.

Preservation of Error

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• R.M.A. v. Blue Springs R-IV School Dist., 477 S.W.3d 185 (Mo. Ct. App. 2015)

• Facts: Student filed Writ of Mandamus under Rule 94 in Circuit Court to command school district to permit Student, a transgender male, to access male restrooms. The Trial Court did not initially deny the Petition, nor did it grant a preliminary order in mandamus. Without being summoned, Respondent filed an answer, asking that the Writ be denied and the Petition dismissed. The trial court held a hearing, at which the parties argued their positions. Following the hearing, the trial court denied the Petition, and Student filed an appeal.

Writ Practice

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• No one bothered to read Rule 94. A Petition for a Writ of Mandamus is initially an ex parte proceeding. After the Petition is filed, the Court either denies the Petition or issues a preliminary Order in mandamus. Only then is the Respondent summoned and ordered to file an answer.

• Ordinarily, when a writ petition is denied, the appropriate recourse is to file the writ petition in a higher court.

Writ Practice

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• May appeal only under two circumstances: (1) after the Court has issued a preliminary order in mandamus but then denies a permanent writ; or (2) when the lower Court issues a summons, the functional equivalent of a preliminary order, and then denies the permanent writ.

• Here the Court did not deny a permanent writ after granting a preliminary writ, and the Court never issued a summons.

Writ Practice

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• “The trial court's denial of the Petition affords R.M.A. no more recourse than would have been available to R.M.A. had the Petition been denied shortly after it was filed. R.M.A. has the right to file the Petition in a higher court. R.M.A. does not, however, have the right to appeal the trial court's denial of the Petition.”

Writ Practice