The Appellate Blog

DISCUSSING APPELLATE OPINIONS, NEWS, THE LAW, AND APPELLATE PRACTICE

The More the Merrier? For experts, the Mo Supreme Court will soon say.

Posted: April 12, 2018

In October 2017, the Court of Appeals for the Eastern District took the unusual step of reversing a jury verdict for the defending doctor in a medical negligence case because the trial court had let in too many experts to testify on his behalf. Shallow v. Follwell, D.O, ED 103811 (Mo. Ct. App. Oct. 17, 2017)

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Appellate Counsel Dodges Ineffective Counsel Tag for Choice of Points on Appeal

Posted: February 19, 2018

A defendant who admitted kicking, beating, and strangling a man to death lost his bid for a new trial based on the supposed ineffective assistance of appellate counsel in Meiners v. State, No. SC96278 (Jan. 23, 2018) . In the underlying trial, the defendant was convicted of second-degree murder, but the trial court had refused to submit instructions on the lesser-included offenses of voluntary and involuntary manslaughter. Defendant took a direct appeal from that conviction, but his appellate counsel did not argue for reversal based on these missing instructions. When the conviction was affirmed, the Defendant sought post-conviction relief by attacking his appellate lawyer’s performance.

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Argument Held On First Amendment Challenge to Missouri's Informed Consent Law

We noted back in October that the Supreme Court of Missouri accepted transfer to hear a novel First Amendment challenge to Missouri's abortion informed consent law. The case has now been (January 23, 2018) argued and the audio is available at the Court's website here: https://www.courts.mo.gov/page.jsp?id=119842 For those interested in the art of oral argument, take note of how Appellant's counsel tries to weave his theme and legal points into a compelling story for his client and returns to it with each question from the bench. It isn't for me to say whether his efforts were successful. And we'll know in a few weeks how the Court will come down on the case. But it is a captivating listen.

It might feel good, but hyperbole hurts appellate (or any) brief writing

Posted January 25, 2018

Using cringe-worthy adjectives like “specious” or “ridiculous” to describe an opponent’s position is almost always a bad idea. Often accompanied by incomplete, circular, or conclusory reasoning, these tiresome words are telltale signs of a weak argument. For readers—particularly appellate judges—they are a quick turn off. And the worst of it is, these little flicks of emotion typically come at the front end of a brief or argument, right where they can do the most damage. In 2013, a panel of the Sixth Circuit launched into an opinion with a pretty good summation of the problem:

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Forum Selection Clause Enforced For Tort Claims

Posted: January 19, 2018

The Supreme Court of Missouri enforced a contract’s forum selection clause as to tort claims between the parties in Reed v. The Reilly Company LLC, No. SC96499 (Dec. 5, 2017)****. Reed sued his Kansas-based former employer in Jackson County, Missouri alleging violations of the Missouri Merchandising Practices Act and other tort claims. The employer moved to dismiss the suit, claiming that the parties’ agreement had a valid forum selection clause mandating that Johnson County, Kansas is “the proper jurisdiction and venue to interpret and enforce any and all terms of the Agreement.”

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Prevailing Factor Clarified For Workers' Heart Attack Cases

Posted January 19, 2018

For a quarter century, Ulysses White worked as a machinist at ConAgra in Marshall, Missouri. It was over 100 degrees at work the day he died. Colleagues found him collapsed on the floor just before lunchtime. An autopsy found his cause of death to be “cardiac arrhythmia resulting from severe coronary artery disease.”

In White v. Conagra Packaged Foods, LLC, No. SC96041 (Dec. 19, 2017), the White family sought workers compensation benefits. They argued that extreme heat and working conditions that day caused White’s death. ConAgra countered that his death was simply the unfortunate result of his underlying heart disease.

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Mo. Supreme Court Gives Tenants Right to Jury Trial

Posted: January 19, 2018

Missouri landlords can evict defaulting tenants through a streamlined, judge-tried process in associate circuit court. Before 2014, a party aggrieved by the associate circuit court's ruling could request a full trial de novo (with a jury if they choose) in the circuit court before moving on to appellate courts. In this way the law provided efficiency and protected the parties’ constitutional right to a jury trial. But in 2014, the legislature sought to further quicken the process by axing the de novo trial step. The question in Brainchild Holdings, LLC v. Cameron, No. SC96376 (Dec. 5, 2017) https://www.courts.mo.gov/file.jsp?id=120436 was whether doing so unconstitutionally stripped the parties of the right to a jury trial.

Mindful of the precept that legislation should be read as constitutional whenever possible, the Supreme Court held that nothing in the new law expressly denied parties the right of a jury trial. Thus, that right must be present at the only trial level left in the process – the associate circuit court proceedings. The Court reversed the trial court’s denial of the tenant’s request for a jury trial and the subsequent judgment in favor of the landlord.

As the amicus brief supporting the landlord argued, Brainchild Holdings may well lead to a proliferation of jury trials in landlord tenant disputes and frustrate the legislature’s goals to eliminate jury trials in eviction cases. But the Court did not fully consider this policy argument because Brainchild never made it at trial. In any case, the Court suggested, that result would be at odds with the constitution. If there truly is a glut of jury trials in rent and possession cases, and if the legislature's intent in 2014 was to avoid as much, I'd expect to see some tweaking done to the law.

Practice Tip: Forgoing all participation in an appeal can be risky for respondents. Brainchild did not file a brief in this case, ceding the field to the appellants. It was thus not able to counter appellants' points or to present the policy arguments at play in this case. Its amicus curiae tried to make some of these arguments, but the Court refused to consider them, noting that Brainchild hadn’t made them below. Since it wasn’t active in the appeal, Brainchild wasn’t around to defend itself. The lesson is, all things being equal, if at all possible, don’t let the appellant’s voice be the only one the appellate court hears.

Catching Up On Sup Ct of Mo Late-2017 Opinions

Now that we’re back in the swing of things following the holidays, its time to catch up on some of the Supreme Court of Missouri’s end-of-2017 opinions. Today’s blogs will cover cases dealing with forum selection clauses, landlord tenant disputes, and workers’ compensation.

General Jurisdiction Over Bayer Denied in Missouri

Posted: January 18, 2018

As we’ve written here before, courts have been grappling with the difficult personal jurisdiction questions presented by large mass tort cases for some time now. The Supreme Court of Missouri's opinion in Bayer Corporation v. Moriarty, SC96189 (December 19, 2017) continues this development.

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Court of Appeals Issues Writ of Mandamus Against Clay County Collector

State ex rel. Yoest, et al. v. McEvoy, WD 80556 Posted October 5, 2017

In State ex rel. Yoest v. McEvoy, the Court of Appeals provides insight into when a duty is ministerial and thus subject to a writ of mandamus. But first, what is a writ of mandamus? It's the name we use for orders from the court that direct a government official to fulfill a ministerial duty. The process gets cloudier when the court of appeals issues a writ directing the trial court to do something, but in general this is the simplest way to think about writs of mandamus.

Practice Tip: Getting a writ of mandamus is slightly different than filing an ordinary civil lawsuit for damages. Under Mo. R. Civ. P. 94, the case is initiated with a petition by the party seeking relief (dubbed the “Relator” under the rule). The court then decides if the petition properly invokes the mandamus procedure. If it does, the court will enter a preliminary writ and an order telling the government official (called the Respondent) to file an answer to the petition. At the same time, the court initiates service of process.

So back to the Yoests. They wanted to participate in Clay County’s annual tax delinquency sales. But the county Collector declared them permanently ineligible to be bidders based on what she deemed “a history of dishonesty and lack of reliability.” The Yoests looked at the statute (RSMo. Section 140.190.2) governing county tax sales and found that it only has two requirements of potential bidders: that they be Missouri residents and that they be current on their own taxes. Because they met those requirements, the Yoests cried foul and asked the trial court to order the Collector to allow them to bid. The trial court issued a preliminary writ, but after the Collector answered, the court granted the Collector’s motion to dismiss the action, finding that there was no “unequivocal right to be a bidder” at the sales.

In an opinion written by Judge Newton (joined by Judges Ahuja and Martin), the Court of Appeals came to the opposition conclusion. It could find nothing in the law giving the Collector the discretion to ban tax-paying citizens the right to bid in tax sales. Citing an earlier case ordering a city clerk to include the name of a statutorily qualified candidate on the ballot, the panel concluded that the Collector was bound to allow qualified citizens to participate in the annual sales.

Bonus Practice Tip: Because the court granted a preliminary writ, the Court of Appeals reviewed the judgment under Murphy v. Carron (reversing only for errors of law, lack of substantial evidence, or if the judgment is against the weight of the evidence). Had it dismissed the case before the preliminary writ was granted, the review would have been de novo. As it was, the standard of review made little difference because the Court of Appeals was essentially reviewing the trial court’s interpretation of the statutes, a decision to which an appellate court owes no deference.

Challenge to Abortion Informed Consent Law Transferred To Missouri Supreme Court

Mary Doe v. Greitens, WD80387 Posted, Oct. 5, 2017

The Supreme Court of Missouri is set to decide a fascinating First Amendment-based challenge to recent restrictions on abortion enacted in Missouri.

In Doe v. Greitens, the appellant challenges the constitutionality of Section 188.027, which requires abortion providers to give very specific information in the informed consent process. Doe had sought and eventually underwent an early-first term abortion. But things the State required of her and her provider during the ordeal violated, Doe argues, the First Amendment.

The law at issue requires abortion providers to give patients like Doe a booklet that includes the express and prominent statement that: “The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being.” It also required plaintiff to pay for and view an ultrasound and then to wait 72-hours before having the procedure.

Doe sued the State, arguing (among other things) that these requirements burden her religious freedom without justification. She framed the religious beliefs being violated as including the notion that “her body is inviolable and subject to her will alone” and that “based on the best scientific understanding of the world . . . fetal tissue is part of her body and not a separate, unique, living human being.”

And in an interesting twist, Doe also contends that the statement Missouri requires providers to make – that the “life of each human being begins at conception” – is religious in nature and thus violates the First Amendment's prohibition against the enactment of laws respecting the establishment of religion by the State.

The Court of Appeals didn't weigh in on the merits of the dispute, instead transferring the case to the Supreme Court because the appeal raised real and substantial challenge to the constitutionality of a state statute.

Practice Tip: Doe knew her case was one that the Supreme Court of Missouri would likely have to decide, so she made her record with that in mind. This case thus gives practitioners a look at the mechanics of how constitutional challenges get decided by the Supreme Court.

Under Article V, section 3 of Missouri’s Constitution, the Supreme Court has exclusive jurisdiction in all cases involving the validity of a statute or provision of the Constitution. But, as Judge Newton’s opinion explains, it is not enough that the appeal involve a constitutional issue. The issue must instead be real and substantial. That is to say, one that “presents a contested matter of right that involved fair doubt and reasonable room for disagreement.” It helps too if the question is one of first impression.

Now, if the case involves a real and substantial issue that only the Supreme Court can decide, there a couple of ways of doing it. First, if it’s a clean enough case (for instance, the constitutional issue is the main or only issue to be decided), the litigants can appeal directly to the Supreme Court.

Second, the case can be transfered from the Court of Appeals to the Supreme Court, either before or after an opinion is issued. The Court of Appeals can, either on its own or on a motion by the parties, transfer the appeal to the Supreme Court if it finds that the case involves a real and substantial constitutional challenge (or other issue within the exclusive jurisdiction of the Supreme Court). Or the Supreme Court itself can order an appeal transferred up to it, again either on its own or at the behest of a party. For deadlines and other requirements pertaining to this process, start with Mo. R. of Civ. P. 81 and 83.

Supreme Court of Missouri’s Coventry epilogue.

Nevils v. Group Health Plan, Inc., SC93134 (Mo. July 11, 2017), marks the end of a three-year, four-part series of appellate decisions between the Supreme Court of Missouri and the Supreme Court of the United States about the preemptive force of the Federal Employee Health Benefits Act (FEHBA). If you're looking to drill down on how and when the combination of an act of Congress and the Constitution’s Supremacy Clause can nullify (preempt) a State’s law, the Coventry/Nevils opinions aren't a bad place to start.

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Supreme Court of Missouri Elects Hon. Zel M. Fisher as Chief Justice

(Posted July 6, 2017)

Happy belated America! We hope everyone had a happy and safe 4th of July! The Appellate Blog has been quiet for the holiday (and for the Bonuchi family move) and we'll get back to posting opinion analysis and news soon. But we wanted to congratulate Missouri’s newest Chief Justice of the Supreme Court, the Honorable Zel M. Fisher. He was elected by his fellow Supreme Court judges to serve from 2017 through 2019. Judge Fisher has been serving on the Court since his appointment by Governor Matt Blunt in 2008.

Practice Tip. (Yes, even this announcement is fodder for one). A lot of lawyers get confused by how to address appellate court judges at oral argument. Is it “justice” or “judge”? In Missouri, the proper moniker is dictated by article V, section 8 of the Constitution. The members of the Court of appeals and Supreme Court are dubbed judges, with one exception. The judge elected to serve as chief is to be called Chief Justice.

Missouri’s mixture of terminology is unique. While nearly all intermediate appellate courts (state and federal) refer their members as judges, a substantial number of the States’ high courts use the term justice, including Kansas. Of coursae, so does the Supreme Court of the United States.

You are virtually guaranteed to address individual members of the court at oral argument so save yourself some embarrassment and get the titles straight during your prep.

SCOTUS Continues Tightening Constitutional Limitations On Personal Jurisdiction

(Posted June 25, 2017)

As a matter of pure legal reasoning, the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, No. 16-466 (June 19, 2017), is not that controversial. It is after all an 8-1 opinion. But controversial or not, the Opinion will have a halting impact on mass tort litigation nationwide, as the Court continues to narrow the scope of personal jurisdiction State courts may exercise over out-of-state companies.

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Court of Appeals Cannot Decide Weight-of-the-Evidence Challenge Without Fair Rendition of The Evidence

(Posted June 21, 2017)

The Missouri Court of Appeals has been trying to teach litigants how to mount an against-the-weight-of-the-evidence challenge to judgments in judge tried cases. Its work continues in McKinney v. Smith, No. SD34491 (Mo. Ct. App. S.D. June 15, 2017) in which a father was appealing from the trial court's custody decree. McKinney sets out the Southern District's analytical framework like this:

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SCOTUS To (Maybe) Decide Whether Political Gerrymandering Is Constitutional

(Posted: June 20, 2017)

Now a break from case updates for some big national news. Yesterday, in Gill v. Whitford, the Supreme Court agreed to hear the State of Wisconsin's appeal from a federal district court's decision holding the electoral maps for the state legislature were unconstitutionally partisan. My gut likes this decision (what sense does it make to have legislators drawing their own districts after all?), but my head questions whether it’s a wise use of judicial power. And as we'll see, therein lies pretty much the entire controversy.

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Claims About A Flawed Title Accrue Once There Is Reasonable Notice Of An Injury, Not When Title Was Recorded

After the snafu CitiMortgage created in White v. CitiMortgage, Inc., No. 16-2599 (8th Cir. June 16, 2017), the Eighth Circuit (Opinion by Judge Riley, joined by Loken, J. and Benton, J.) wasn't much in the mood to find the plaintiff's claims barred by Missouri’s statute of limitations. In 2008, White fell into default on his home mortgage, which was held by Freddie Mac and serviced by CitiMortgage. After the foreclosure sale, and after Freddie Mac recorded title in its name, White reached a deal with CitiMortgage to modify the mortgage and to reclaim title to his house. Apparently both Freddie Mac and White believed CitiMortgage would take whatever steps were necessary to ensure title was actually in White's name. Unbeknownst to them, though, that never happened.

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Tasing of Resistant Rancher Found Objectively Reasonable by Eighth Circuit

You could say the scene painted by Judge Loken (writing for Judges Colloton and Kelly) in Brossart v. Janke, No. 16-1412 (8th Cir. June 16, 2017), belongs to a bygone era. A North Dakota county Sheriff received word that the Brossarts were refusing to return cattle they had found on their land to the rightful owner. The Brossarts were admittedly demanding payment as a condition for the release of the cattle, which apparently violates the state's estray laws. When the Sheriff arrived to investigate, the Brossarts refused to recognize his authority to intervene and refused to allow him on the property. The Sheriff moved to handcuff Brossart and he resisted. The scuffle escalated quickly, with Brossart instructing one of his sons to retrieve a gun from a nearby truck. Meanwhile, after several warnings, the Sheriff tased Brossart. Despite yet further warnings, Brossart refused to relent and the Sheriff tased him again. This pattern repeated a couple of times. Brossart was eventually detained and later convicted of "preventing arrest."

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Shifting Burdens of Proof Undo Appellant in Commercial Lease Dispute

Lawyers know in the abstract that the plaintiff has the burden of proof as to her claims and the defendant has the burden of proof on any affirmative defenses it asserts. But as the Missouri’s Court of Appeals for the Southern District shows us in Morris Branson Theatre, LLC v. Cindy Lee, LLC, No. SD34572 (Mo. Ct. App. S.D. June 15, 2017), reality isn't so simple.

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Faulty Record Quashes Preliminary Writ

(Posted June 22, 2017)

Cornerstone National Insurance Co. v. Ligons, SD34866 (Mo. Ct. App. S.D. June 13, 2017) is a simple two-page opinion, but it raises an important issue about claim preservation in the writ process. The lawsuit was brought against Cornerstone by a man injured in a car crash. He alleged that the insurer wrongfully refused to pay the limit of underinsured motorist coverage. During discovery, Cornerstone had some objections overruled and was ordered to respond to the plaintiff’s requests subject to a protective order. The Opinion is silent on what the disputed discovery sought, but it was serious enough to Cornerstone for it to seek a writ of prohibition to halt the trial court’s order.

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Absent citations to the summary judgment record dooms another appeal in Missouri's Southern District Court of Appeals

The confluence of Rule 84.04 and Rule 74.04 strikes another litigant down in the Southern District in Alvis v. Morris, SD34609 (Mo. Ct. App. S.D. May 30, 2017). This decision comes on the heals of Pemiscot Cty. Port Auth. v. Rail Switching Servs., Inc., SD34570 (Mo. App. S.D. May 9, 2017), in which the Court refused to address the merits of a point on appeal because the statement of facts in the appellant's brief did not set out the relevant facts (and the alleged disputed facts) developed in the summary judgment record. In Alvis, the court used that same rationale to dismiss the appeal entirely.

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Rules of Professional Conduct Aren't Clear Enough Directives To Give Rise to Whistleblower Claim

DeFoe v. American Family Insurance, WD8009 (Mo. Ct. App. W.D. May 30, 2017) found an allegedly overworked and overburdened former staff attorney at American Family Insurance suing the company for wrongful discharge. DeFoe's petition claimed he was wrongfully terminated for engaging in activity that is protected under the public-policy exception to the at-will doctrine. DeFoe believed that his heavy workload ran him and American Family afoul of Mo. R. Pro. Conduct 4-1.1 (which mandates that lawyers provide clients “competent” representation) and Rule 4-5.4(c) (which bars a lawyer from allowing others to direct the lawyer’s professional judgment in rendering legal services).

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Welcome to the Appellate Blog at Bonuchi Law

Welcome to the Appellate Blog at Bonuchi Law. I hope this site will be a good place to find timely summaries of appellate opinions, interesting information and discussions about the law, lawyering, and appellate practice. Enjoy and by all means send any feedback or critiques to me at anthony@bonuchilaw.com.