Bonuchi Law - RSS Feed

Four Overlapping Causation Opinions OK, Says Mo. Supreme Court

anthony@bonuchilaw.com (BonuchiLaw) — Mon, 08 Oct 2018 14:00:00 +0700

In April, we called attention to a case transferred to the Supreme Court of Missouri after the Court of Appeals reversed a defense verdict in a medical malpractice action because the defending doctor had been allowed to call too many expert witnesses for his side. The Supreme Court has now issued its opinion in [Shallow v. Follwell](https://www.courts.mo.gov/file.jsp?id=130413), SC96901 (Mo. 2018), which vacates the Court of Appeals ruling [Shallow v. Follwell, D.O, ED 103811 (Mo. Ct. App. Oct. 17, 2017)](https://www.courts.mo.gov/file.jsp?id=118594) and affirms the trial court’s decision not to grant a new trial. ==== As noted in our earlier post, the backstory is tragic. Saundra Beaver died of sepsis caused when the infectious contents of her digestive tract leaked into her abdominal cavity through a hole in her bowels. Her survivors brought a wrongful death suit against her doctor, alleging that he punctured her bowel during a hernia surgery. The doctor argued that a preexisting condition had caused the hole, not any negligent care he provided. In addition to his own testimony, the doctor put on four other physician-experts to testify in his favor. The question at issue was whether allowing four defense experts to give opinions on causation was prejudicially cumulative because it invited the jury simply to count heads in reaching its conclusions. Not according to the Missouri high court. It acknowledged an overly persistent drumbeat of expert testimony can potentially overtake the standard for legal relevance – a balance requiring that the probative value of the evidence outweigh any prejudicial effect admitting it will have. But the Court couldn’t say the beat had grown quite that loud in *Shallow*. Each expert opined on separate issues in the case. That some portions of their testimony “overlapped” on causation just wasn’t enough to warrant excluding them altogether. **Practice Tip**. The outcome might have been different if the issue on appeal focused on specific parts of the experts’ testimony alleged to be cumulative. But that narrower issue was not perfected for appeal, according to the Court. Counsel objected at the outset that the experts’ testimony would be cumulative. But that argument didn’t justify tossing out the entirety of their testimony, since each expert also gave testimony that was non-cumulative. To claim error in the admission of cumulative portions of testimony, the objecting party must object “after each question seeking to elicit the objectionable testimony.”

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

anthony@bonuchilaw.com (BonuchiLaw) — Thu, 12 Apr 2018 22:00:00 +0700

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)](https://www.courts.mo.gov/file.jsp?id=118594) ==== The back story is simple and tragic. Saundra Beaver died of sepsis caused when the infectious contents of her digestive tract leaked into her abdominal cavity through a hole in her bowels. Her survivors brought a wrongful death suit against her doctor, alleging that he punctured her bowel during a hernia surgery. The doctor argued that a preexisting condition had caused the puncture, not any negligent care he provided. In addition to his own testimony, the doctor put on four other physician-experts to testify in his favor. (After all, why call only one doctor when you can have four, right?) The question on appeal was: had the trial court gone too far in allowing so many experts to testify that Follwell hadn’t caused the hole? The Eastern District said yes and ordered a new trial. It grounded its ruling on the evidentiary rule of relevance. As we know, for a piece of evidence to be legally relevant, its probative value to the case must outweigh any drawbacks to its admission, including unfair prejudice to the other party and the needless presentation of cumulative evidence. To the court of appeals, allowing the doctor’s “chorus of the same ultimate opinions” interfered with the jury’s ability to weigh the evidence and made it likely that it simply “count[ed] heads,” finding for the doctor because he had more experts on his side. Given the care courts are to take with admitting “experts” to testify, this was reversible error according to the Eastern District. That victory may be short lived, though. The Supreme Court has since transferred the case, which is set for oral argument on May 24, 2018.

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

anthony@bonuchilaw.com (BonuchiLaw) — Mon, 19 Feb 2018 23:00:00 +0700

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) ](https://www.courts.mo.gov/file.jsp?id=121916). 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. ==== What we call “post-conviction relief” describes the process for one convicted of a felony in Missouri to challenge that conviction even after losing on direct appeal. It’s a limited rule that only allows for claims of jurisdictional, constitutional, or sentencing error. And because the Sixth Amendment guarantees those accused of federal or state crimes the right to effective assistance of counsel, the conduct of the defendant’s lawyers is often center stage. So it was in *Meiners*. The defendant-petitioner argued that his appellate lawyer failed to claim on appeal that the trial court erred in refusing to submit his jury instructions for both voluntary and involuntary manslaughter. The problem on the voluntary manslaughter issue was that by any objective analysis, the trial judge had gotten it right – there just was no evidence that defendant’s actions were the result of sudden passion, which is the critical element of a voluntary manslaughter case. The Supreme Court thus endorsed appellate counsel’s decision to forgo that fight. The involuntary manslaughter issue was trickier. Indeed, it gave rise to a dissent. Ultimately, the majority opinion written by Judge Russell absolved appellate counsel, but Judges Fisher and Wilson found her failure to raise the issue at odds with the standard of care. So what happened? Just after Meiners’ conviction had been affirmed on direct appeal, the Court held in *State v. Jackson,* 433 S.W.3d 390 ,404 (Mo. 2014), that it was effectively error for a trial court not to include involuntary manslaughter as a lesser-included offense when a second-degree murder charge is submitted to the jury. The required proof on the two crimes is the same but for the mental element, which makes involuntary manslaughter what is called a “nested” lesser-included offense of second-degree murder. According to *Jackson*, in these circumstances, the jury should be allowed to decide whether the evidence supports a finding that the defendant acted with “knowledge” (second-degree murder) or whether he was merely “reckless” (involuntary manslaughter). The question for the Court was whether before Jackson Missouri law regarding nested lesser-included offenses was so clear and apparent that any reasonably competent attorney would have raised the issue on appeal. The majority simply couldn’t get there. The Court detailed the work the Jackson opinion did in bringing together several aspects Missouri’s instructional law jurisprudence to be the first opinion to say that “there is essentially always a basis in the evidence to instruct on nested lesser-included offenses.” Given that, the Court couldn’t look back and say counsel was incompetent for having failed to predict Jackson’s holding. Judge Wilson’s dissent expected more from appellant’s counsel. To him, the issue was clearly enough established that it was prudent to raise the point on appeal. Judge Fisher joined in the dissent’s analysis on appellate counsel’s misstep, but concurred in the Court’s result because even if the issue should have been raised by appellant’s counsel, there was no way to show prejudice, an issue Judge Wilson didn’t address. **Practice Tip**: The standards governing ineffective assistance of counsel and civil legal malpractice claims are basically the same. So lawyers deciding what issues to raise on appeal take note. It is entirely possible for the failure to raise an argument you don’t think much of on appeal to lead to a malpractice claim if the position is shown in a later case to have been a winning point. **Bonus Practice Tip**. Meiners appellate counsel escaped the ineffective assistance of counsel tag in this case, but the next lawyer failing to ask for a nested lesser-included charge or failing to appeal its denial may not be so lucky. The court hinted strongly that this may “amount to ineffective assistance if not raised today in light of *Jackson*.”

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

anthony@bonuchilaw.com (BonuchiLaw) — Thu, 25 Jan 2018 22:00:00 +0700

We [noted back in October](http://www.bonuchilaw.com/post/21/challenge-to-abortion-informed-consent-law-transferred-to-missouri-supreme-court) 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

anthony@bonuchilaw.com (BonuchiLaw) — Thu, 25 Jan 2018 19:00:00 +0700

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: ==== > There are good reasons not to call an opponent's argument "ridiculous," which is what State Farm calls Barbara Bennett's principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, "the better practice is usually to lay out the facts and let the court reach its own conclusions." ... But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct. That could not have been fun for counsel to read. The opinion is *[Bennett v. State Farm Mut. Auto. Ins. Co., 731 F.3d 584 (6th Cir. 2013)](http://www.opn.ca6.uscourts.gov/opinions.pdf/13a0283p-06.pdf)* if you’re interested. All that said, even the best writers reach for hyperbole from time to time, even if only subconsciously. When I’m afflicted, it tends to show up in the weaker moments of my first drafts. My advice? Keep a sharp lookout for these and other adjectives in your writing. Strike them whenever you can. But be mindful when you do, for those words are often patching holes that will need to be filled with facts or law to make a fully formed argument. Shout out to the [Washington State Civil Appeals Blog](http://www.waappellatelaw.com/2013/09/an-example-of-hyperbole-as.html) for flagging this one for us.

Forum Selection Clause Enforced For Tort Claims

anthony@bonuchilaw.com (BonuchiLaw) — Fri, 19 Jan 2018 19:00:00 +0700

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)](https://www.courts.mo.gov/file.jsp?id=120434)****. 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.” ==== The opinion is light on background facts, but what’s clear is that Reed’s primary attempt at avoiding the Kansas forum was to say that his claims were not based on the contract itself, but were instead torts, which were not addressed by the forum selection clause. That was true enough, but the Supreme Court held that a forum selection clause is enforceable for any and all claims if “resolution of [the] claims would necessarily require an inquiry into the terms and enforceability of the agreement.” One way or another, the Court found, Reed’s claims would involve interpreting or enforcing the agreement. Reed’s other arguments fared no better. He tried attacking the contract as a whole, claiming that since he was an “at will” employee the contract was void for want of consideration and so too was the forum selection clause. The Court flatly rejected that theory, noting the “absurdity” that would result for cases in which the initial court upheld the contract and thus sent the case to the selected forum, where the new court would have to address the same arguments about whether the contract is void. Relying on a Seven Circuit case, the Court concluded that the better rule is to have the selected jurisdiction decide questions of enforceability (absent some showing of fraudulent inducement). Finally, the Court rejected arguments that the contract was unfair or the product of fraud. But because Reed did not contend the contract was one of adhesion, the court couldn’t find it unfair to enforce the forum selection clause. Nor was there any merit to the argument that enforcing the clause would strip him of the benefits of Missouri law because the Kansas court could decide Reed’s MPA claims. **Practice Tip**: The dismissal in this case was without prejudice, just as it would be in a personal jurisdiction case. Typically, the “without prejudice” part makes the judgment non-final for purposes of appeal because the court hasn’t fully decided the merits of parties’ claims and defenses. But when the dismissal has the effect of ending litigation in the plaintiff’s chosen forum, it is a final, appealable judgment.

Prevailing Factor Clarified For Workers' Heart Attack Cases

anthony@bonuchilaw.com (BonuchiLaw) — Fri, 19 Jan 2018 18:00:00 +0700

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)](https://www.courts.mo.gov/file.jsp?id=120874)*, 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. ==== To obtain workers compensation benefits after a cardiovascular event, a claimant must show under Section 287.020.3(4) there was an accident (a trauma) that was the prevailing factor in the injury. Of course, claimants must also show that the accident occurred in the course of employment under Section 287.120.1. As you might guess, the main rub in White’s case was the prevailing factor question. Each side had their own expert to tell their story of causation. Ultimately, the administrative law judge (workers comp cases are decided administratively in the first instance) found ConAgra’s evidence more persuasive on that issue and denied the White family's claim. The Labor and Industrial Relations Commission affirmed that finding on appeal. By the time the case got to the Supreme Court, the framework for the analysis was jumbled. Appellants were arguing that the Commission erred by holding them to a “prevailing factor” burden of proof under Section 287.020 rather than the preponderance of the evidence standard that is necessary to show that White’s accident arose out of his employment. But that issue needn’t be addressed, the Court said, because another element of the claimant’s case was dispositive. At bottom, the claim foundered on unpersuasive expert testimony about the cause of White’s heart attack. **Practice Tip**: The Opinion hints at some confusion between the burden of proof and the standard of proof. This is a common misstep. And it’s understandable. After all, the “burden of proof” itself actually refers to two different concepts: the burden of production and burden of persuasion. But that’s a discussion for another post. As this case illustrates, the burden of proof is distinct from the standard of proof. Here, the statute required White’s family to prove as an element of the claim that the working conditions were the prevailing cause of his heart attack. This element was part of their *burden of proof*. This is no different from, say, a breach of contract case, where the burden of proof includes proving the element of breach. But this burden does not alter the basic *standard of proof*. That is, the claimant had to convince the ALJ and Commission (the fact finders) by a preponderance of the evidence that White’s working conditions were the prevailing factor of his heart attack.

Mo. Supreme Court Gives Tenants Right to Jury Trial

anthony@bonuchilaw.com (BonuchiLaw) — Fri, 19 Jan 2018 18:00:00 +0700

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

anthony@bonuchilaw.com (BonuchiLaw) — Fri, 19 Jan 2018 18:00:00 +0700

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

anthony@bonuchilaw.com (BonuchiLaw) — Thu, 18 Jan 2018 22:00:00 +0700

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*](https://www.courts.mo.gov/file.jsp?id=120876), SC96189 (December 19, 2017) continues this development. ==== Bayer was sued in Missouri state court by ninety-two plaintiffs claiming they were injured by one of its birth control devices. The vast majority of the plaintiffs live outside Missouri. Those plaintiffs do not claim injury in the state nor do they claim they purchased the products here. So Bayer moved to dismiss their claims for lack of personal jurisdiction. The trial court denied that motion, finding that Bayer was present in Missouri and had consented to jurisdiction in its courts. The Supreme Court of Missouri granted Bayer’s request for a writ of prohibition – a mechanism available to stop a trial court from exceeding its jurisdiction – and reversed. It held that neither of the two avenues to personal jurisdiction were available for the non-resident plaintiffs. Specific personal jurisdiction was foreclosed by [*Bristol-Myers Squibb*](https://www.supremecourt.gov/opinions/16pdf/16-466_1qm1.pdf) because there was no nexus between the non-resident plaintiffs' claims and Bayer’s connections to Missouri. And the argument for general jurisdiction fared no better. After the 2014 decision in*[Daimler](https://www.supremecourt.gov/opinions/13pdf/11-965_1qm2.pdf)* there are basically two types of states where a defendant can sued any time for any reason: where it is headquartered and where it is incorporated. For Bayer, Missouri is neither. The Bayer plaintiffs made two other arguments, both of which were rejected. They tried to squeeze their claims down the narrow path left open in *Daimler* for general jurisdiction in “exceptional cases” where the corporation is “essentially at home in the forum.” But even recognizing the substantial business Bayer does in Missouri, the Supreme Court of Missouri declined to say Bayer is “at home” here. To hold that it is would make Bayer subject to general jurisdiction nearly everywhere it does business and defeat the point of *Daimler*. Though the court didn’t guess at what “at home” might look like in practice, Bayer’s business in Missouri isn’t it. The plaintiffs also argued that by registering to do business in Missouri, Bayer had consented to personal jurisdiction here. To the court, this contention amounted to an end run around constitutional limits on personal jurisdiction set down in cases like *Daimler*, so it was rejected, too. The Bayer plaintiffs live on though. The Supreme Court of Missouri noted that they intended to file an amended petition and conduct discovery on an alternative theory of personal jurisdiction that, they claim, will show the necessary nexus between their claims and Bayer's connections to Missouri. Time will tell. **Practice Tip** This case is a good example of the limited review appellate courts exercise in the extraordinary writ process. The Court declined to weigh in on the validity of the plaintiff's new jurisdictional theory because the trial court had not yet been presented with it. While on direct appeal the court might have taken up a purely legal question bound to arise on remand, doing so in a writ of prohibition wouldn't make much sense. After all, it's impossible to halt an extra-jurisdictional act (which is what writs of prohibition are for) that hasn't happened yet.

Court of Appeals Issues Writ of Mandamus Against Clay County Collector

anthony@bonuchilaw.com (BonuchiLaw) — Thu, 05 Oct 2017 17:00:00 +0700

State ex rel. Yoest, et al. v. McEvoy, WD 80556 Posted October 5, 2017 In *[State ex rel. Yoest v. McEvoy](https://www.courts.mo.gov/file.jsp?id=118278)*, 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

anthony@bonuchilaw.com (BonuchiLaw) — Wed, 04 Oct 2017 22:00:00 +0700

*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](https://www.courts.mo.gov/file.jsp?id=118276)*, 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.

anthony@bonuchilaw.com (BonuchiLaw) — Mon, 24 Jul 2017 20:00:00 +0700

*[Nevils v. Group Health Plan, Inc.]( https://www.courts.mo.gov/file.jsp?id=114835)*, 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. ==== The lawsuit arose after Coventry enforced a lien against settlement proceeds Nevils obtained on a personal injury claim. Nevils claimed that the insurance company’s attempt to recover medical expenses it paid on his behalf violated Missouri's consumer protection law because it was barred by Missouri’s anti-subrogation law. The trial court dismissed the suit, finding that the FEHBA clearly expressed Congress’s intent to preempt state anti-subrogation laws specifically to allow insurers of federal employees to recover expenses it paid from related personal injury claims. The provision at hand stated: > The terms of any contract under this chapter which relate to the nature, provision, or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans. The Supreme Court of Missouri reversed. It held that the subrogation rights did “not relate to the nature, provision, or extent of coverage or benefits” and thus Congress wasn’t sufficiently clear that anti-subrogation provisions were to yield to FEHBA. Coventry petitioned the Supreme Court of the United States for certiorari. While the petition was pending, the government agency charged with enforcing FEHBA answered *Nevils I* by promulgating a rule stating that in fact subrogation rights *did* relate to coverage and benefits. SCOTUS granted Coventry's petition, vacated* Nevils I*, and remanded the case so the Supreme Court of Missouri could reconsider its holding in light of the new governmental rule. But in *Nevils II*, Missouri's high court came to the same conclusion it had before and added that its wasn't bound by the federal agency’s post hoc rule of interpretation. Back to SCOTUS the case went. Again, the Court set aside the Supreme Court of Missouri’s opinion. It [adopted](https://www.supremecourt.gov/opinions/16pdf/16-149_6jfm.pdf ) the government’s (and Coventry’s) position that Congress had clearly expressed its desire to have FEHBA preempt State anti-subrogation law. Notably, the Court stuck to the face of the statute, bypassing any analysis of whether the agency rule spurned by Missouri was due *Chevron* deference. **Practice Tip**: The interplay between state and federal laws weaves a tangled web, particularly in tort litigation. The involvement of a federally-backed entity or a federal employee (or even the spouse of one) obviously gives rise to any number of potentially dispositive issues. So counsel should make sure their matter-initiation and case-vetting processes can ferret out any hidden federal angles.

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

anthony@bonuchilaw.com (BonuchiLaw) — Thu, 06 Jul 2017 15:00:00 +0700

(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

anthony@bonuchilaw.com (BonuchiLaw) — Thu, 22 Jun 2017 18:00:00 +0700

(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](https://www.supremecourt.gov/opinions/16pdf/16-466_1qm1.pdf)*, 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. ==== Justice Alito begins the majority's Opinion with foundational principals. The State's ability to exercise authority over a non-resident defendant is limited by the Fourteenth Amendment's Due Process Clause, which requires strong enough ties between the defendant and the forum State that it's fair for the company be made to defend itself there. There are two ways this can happen, the Opinion explains. First is general jurisdiction, where the defendant's business is so intertwined with the State it can be sued there for any and all claims. Second is specific jurisdiction, where the defendant has had enough specific contact with the forum State as it relates to the plaintiff's claims that it can fairly expect to be sued there. The Court has already limited when a company can be subject to the all-encompassing general jurisdiction in *Daimler Ag. v. Bauman*, 571 U.S. (2014). In *Bristol-Myers*, it turned its attention to specific jurisdiction. Almost 600 plaintiffs from 32 different States joined 86 plaintiffs to sue Bristol-Myers Squibb (BMS) in California state court. They claimed injuries resulting from their use of Plavix, a prescription blood-thinner manufactured and sold by BMS. Faced with BMS's arguments that the state court lacked personal jurisdiction to hear the non-residents' claims, plaintiffs pinned their claims on either general or specific personal jurisdiction. They lost the first argument against the New York and Delaware-based BMS after *Daimler* was handed down. But the California Supreme Court upheld specific jurisdiction over BMS on the non-resident's claims. There was no serious argument but that BMS was subject to specific jurisdiction for the resident plaintiffs' claims because their injuries occurred in California. So the non-resident plaintiffs argued that because their claims were identical (even if not suffered in California), it would be perfectly reasonable and fair (and thus constitutional) for the State court to hear their claims too. The California high court agreed, using a "sliding scale approach" to specific jurisdiction that relied on the identical nature of the claims and the "wide ranging" contacts BMS had with the State. The Supreme Court reversed that decision and rejected the "sliding scale approach" California had adopted. It made clear that the forum-related activity must be connected to claims of each plaintiff, not just those of the resident plaintiffs. To hold otherwise, the Opinion went, would effectively create a new, less stringent form of general jurisdiction. Interestingly, the Court went out of its way to point out that *Bristol-Myers* is a Fourteenth Amendment case applying only to questions of state court jurisdiction. It left open whether the same analysis would apply to a federal district court under the Fifth Amendment's Due Process Clause. **Practice Tip**. *Bristol-Meyer's* impact has already been felt. Just a day after it was handed down a Missouri [a state trial court](http://www.stltoday.com/business/local/mistrial-declared-in-talcum-powder-suit-after-u-s-supreme/article_b68ddca2-f152-50ea-9f44-0530a5b81797.html) dismissed the lawsuits of non-resident plaintiffs in the talcum powder products liability cases against Johnson & Johnson in St. Louis. And hundreds of millions of dollars in verdicts from mass tort cases now on appeal may be at risk if personal jurisdiction has been raised on appeal and if the non-resident plaintiffs cannot find a way to distinguish *Bristol-Myers* from their circumstances. As the Opinion hints,*Bristol-Myers* is distinguishable if there is a connection between the non-resident's claims and the defendant's forum contacts. Litigants no doubt will be asking questions like: Was the product manufactured or designed in the forum State? Did plaintiff purchase it there? Did the out-of-state company contract with a company in the forum to do any of the work that was alleged to have contributed to the plaintiff's injuries?

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

anthony@bonuchilaw.com (BonuchiLaw) — Tue, 20 Jun 2017 04:00:00 +0700

(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](https://www.courts.mo.gov/file.jsp?id=113994)*, 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: ==== > (1) identify a challenged factual proposition, the existence of which is > necessary to sustain the judgment; > (2) identify all of the favorable evidence in the record supporting the > existence of that proposition; > (3) identify the evidence in the record contrary to the belief of that > proposition, resolving all conflicts in testimony in accordance with the trial > court’s credibility determinations, whether explicit or implicit; and, > (4) demonstrate why the favorable evidence, along with the reasonable > inferences drawn from that evidence, is so lacking in probative value, when > considered in the context of the totality of the evidence, that it fails to induce > belief in that proposition. In *McKinney*, Father’s appeal fell short on each step. First, he mistakenly described the order being appealed from as awarding Mother “primary residential custody” – a formulation that doesn’t exist in Missouri dissolution law. That was enough, the Court said, to find the points on appeal “preserve nothing for review.” But the court soldiered on to address the second and third steps of its analysis. It’s here that *McKinney* has its broadest reach. Father failed to state – much less address – any of the evidence in the record that favored the trial court’s decision. He ignored, for example, Mother’s 144-pages of trial testimony and the evidence showing Father’s job required substantial time commitments of him. Since that evidence was not identified, the Court could not possibly determine whether the parenting plan it adopted was against the weight of the evidence without turning itself into an advocate. And as for step three, Father tried to cite evidence in his favor, but in doing so he forgot that conflicted evidence (which this certainly was) can't help him. At bottom, the Court noted, Father’s argument was based on hotly contested testimony on both sides. Because the court on appeal must defer to the trial court’s factual rulings and credibility determinations, Father needed to argue that even crediting the court with that deference, his evidence was so strong that it destroyed the probative value of whatever evidence might be in the record to support the judgment. This he couldn't do so the judgment was affirmed. **Practice Tip**. Evidence cited in an appellate brief’s Argument section should always be noted and cited in the brief’s preceding Statement of Facts. In doing this, careful practitioners should double check the standard of review governing their points relied on and draft statements of fact accordingly. As cases like *McKinney* teach, if the standard of review requires deference to the trial court’s factual findings or that the court view the record in the light most favorable to the judgment (or other party's claims), an appellant who fails to fairly state evidence in support of the judgment risks effectively waiving its point on appeal.

SCOTUS To (Maybe) Decide Whether Political Gerrymandering Is Constitutional

anthony@bonuchilaw.com (BonuchiLaw) — Mon, 19 Jun 2017 22:00:00 +0700

(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. ==== Amy Howe at [Scotusblog](http://www.scotusblog.com/2017/06/todays-orders-court-tackle-partisan-gerrymandering/#more-257119) does a great job of explaining the battle lines. A few quick points about the dispute. As Wisconsin’s briefing is quick to point out, the district court’s finding broke new(ish) ground. It was the first court in over thirty years to find a legislative district unconstitutional because it was drawn for partisan reasons. And it set down a test for unconstitutional partisanship in redistricting based on notions developed in *Davis v. Bandemer*, 478 U.S. 109 (1986), which everyone seems to agree is no longer good law. As told by Wisconsin in its brief seeking Supreme Court review: > “The district court defined its test as follows: a redistricting scheme is an unconstitutional partisan gerrymander if it (1) intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation; (2) had that effect; and (3) cannot be justified on other, legitimate legislative grounds.” The district court concluded that the Republican majority in Wisconsin had drawn its maps for partisan reasons, which was evidenced by election results showing large percentages of wasted Democratic votes and a double-digit pro-Republican bias (the difference between a party’s share of votes received and the share of seats it won). Wait, so how does gerrymandering work again? Without getting into the weeds too much (the district court’s ruling ran 150-plus pages), redistricting can have hyper-partisan outcomes in (at least) a couple ways: First, a party in the majority can pack in as much of the minority party’s electorate as possible into just a few districts, thereby allowing the majority party an advantage in all the remaining districts and safeguarding its majority party status. Or the majority party can spread the minority party’s voters thin over a large number of districts, ensuring that most of legislative districts are made up mostly of the majority’s electorate. But before the Supreme Court weighs in on the district court’s new test and its conclusion, it must first determine whether the issue is justiciable at all. Wisconsin says no of course and it maintains that almost by definition these questions are political in nature and outside the power of our federal courts to decide. Indeed, it contends, a plurality of the Supreme Court reached that precise conclusion the last time the Court took on this question in *Vieth v. Jubelirer*, 541 U.S. 189 (2004) (also the case that damned *Davis v. Bandemer*). There is also a standing argument, but since all the action is on the political question doctrine for now, I’ll leave that for another time. What will the Court do? Some observers, Howe among them, note that when it took the case, the Court also stayed the district court’s directive to Wisconsin to start drawing new maps. If you’re reading the tea leaves, Howe explains, this doesn’t bode well for the district court’s ruling given that to order the stay, a majority of the justices had find that Wisconsin is likely to succeed on the merits of its appeal. With argument likely in November or December, we’ll find out sometime next year.

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

anthony@bonuchilaw.com (BonuchiLaw) — Mon, 19 Jun 2017 14:00:00 +0700

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. ==== So White was stunned when his real estate agent (he was putting the house up for sale) found out in the fall of 2013 that he didn't have a valid title to his house even though by that point he'd paid CitiMortgage some $90,000. In early 2014, White sued CitiMortgage claiming the lender had violated Missouri's Merchandising Practices Act (“MMPA”) and made fraudulent and tortious misrepresentations. After Freddie Mac intervened and removed the case to federal court, CitiMortgage moved for summary judgment arguing that White’s claims were barred by Missouri's five-year statute of limitations. The District Court agreed, finding that White’s claims accrued in 2008 when he could have learned that CitiMortgage had failed to ensure title was recorded in his name. The Eighth Circuit reversed. Judge Riley’s opinion concedes that it was possible for White to have discovered his injury in late 2008. But that is not what the statute of limitations (R.S.Mo. Sec. 516.100) means by “capable of ascertainment” in Missouri. Rather, under Missouri's more "practical approach," a claim doesn’t accrue until “a reasonable person would have been put on notice that an injury and substantial damages may have occurred.” Nothing in the record, according to the Court, should have put White on notice that there was an issue with his title until he decided to sell his home. Judge Riley’s opinion also touches on the scope of the MMPA. There has been some debate in Missouri about whether a lender’s alleged deception related to a loan modification is “in connection with a sale,” which is an element in all MMPA’s claims. *See Watson v. Wells Fargo Home Mortg., Inc.*, 438 S.W.3d 404, 408 (Mo. 2014) (finding that conduct related to loan modification as opposed to the original sale, servicing, or collection of the loan falls outside the MMPA). *See also Conway v. CitiMortgage, Inc.*, 438 S.W.3d 410, 416 (Mo. 2014); *Wivell v. Wells Fargo Bank, N.A.*, 773 F.3d 887, 889 (8th Cir. 2014). In *White*, the claims were that CitiMortgage mislead the borrower about the affect of the lump-sum payment he made to retain possession of the house after the foreclosure sale. These claims, wrote Judge Riley, dealt with collection of the original loan, not modification, and were thus cognizable under the MMPA. **Practice Tip** If possible, the complaint or petition should link the MMPA-offending conduct to the original loan, its servicing, or efforts to collect under it. Claims that are simply couched as arising out of the lender's conduct during or after a loan modification risk dismissal.

Tasing of Resistant Rancher Found Objectively Reasonable by Eighth Circuit

anthony@bonuchilaw.com (BonuchiLaw) — Sun, 18 Jun 2017 05:00:00 +0700

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." ==== When the Sheriff returned the next day to serve a search warrant, another confrontation occured, this time with Brossart's sons. As they approached the ranch, law enforcement officers were met by the Brossarts, each of which was armed. One of the sons, Thomas, told the officers to leave because they were trespassing. Presumably hoping to avoid a shootout, the officers left. A day later, the Sheriff and others went to the old missile silo on the Brossart ranch where the cattle were reportedly being held. Thomas and two of his brothers approached the officers. The officers drew their weapons and ordered the sons to the ground. After they were handcuffed, the Sheriff began putting Thomas and his brothers into a cruiser. As they were being loaded, Thomas refused an instruction to move into the middle seat and the Sheriff tased him. Eventually, (and ironically) the Brossarts sued the Sheriff and others under 42 U.S.C. Sec. 1983 alleging the use of excessive force in violation of the Fourth Amendment. The District Court dismissed the claims, finding the sheriff was shielded by qualified immunity because Brossart had neither suffered a violation of a constitutional or statutory right nor was there any right at issue that was clearly established at the time of the incident. The Eighth Circuit affirmed, finding that Brossart's tasing was objectively reasonable and, even if it wasn't, the Sheriff's actions did not violate any clearly established law given Brossart's lawless conduct and continued resistance after each tasing. The majority opinion did draw a dissent from Judge Kelley as to Thomas's claims. To the dissent, the fact that Thomas was restrained and seated in the cruiser at the time of the tasing made Brossart's action objectively unreasonable. Judge Kelley was not convinced, as was the majority, that the standoffs and resistance the Brossarts had displayed in the days before outweighed those basic facts. Beyond the merits of the holdings, there are a couple of noteworthy points in this opinion. First, the Eighth Circuit seems to have passed on the chance to make some new law. The Sheriff had argued that because Brossart's resistance resulted in a conviction for resisting arrest, under *Heck v. Humphrey*, 512 U.S. 477 (1994) no finding of excessive force could be made as a matter of law. Given its holdings under the qualified immunity standard, the Court decided against making that broader ruling. Second, and here's our **Practice Tip**, the court reminds us that waiver arguments themselves can be waived. On appeal, the Brossarts argued that the Sheriff had waived his immunity defense by not timely raising it below. But the Court refused to hear it, noting that the argument was not made in response to the Sheriff's motion for summary judgment or anywhere else in the district court record.

Shifting Burdens of Proof Undo Appellant in Commercial Lease Dispute

anthony@bonuchilaw.com (BonuchiLaw) — Sun, 18 Jun 2017 04:00:00 +0700

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. ==== Cindy Lee leased space from Morris Branson to operate a cafe in 2011. The next year the business suffered substantial damage in a tornado. Morris Branson made some repairs as contemplated under the lease and the business reopened in April 2012. Still, there were ongoing issues that Lee alleged hadn't been adequately addressed. And in August 2012, Lee notified Morris Branson that it was terminating the lease under the casualty provision of the agreement, which allows the tenant to terminate if the landlord did not complete repairs within six months. When Lee quit possession of the property and failed to pay any further rent under the lease, Morris Branson filed suit for breach of contract seeking the remaining rent due. Lee asserted an affirmative defense claiming that it had properly terminated the lease and thus did not owe any further rent. As you might have guessed by now, the case turned on whether Morris Branson fulfilled its obligation to make repairs within six months (indeed, the opinion from the first appeal in the case - which was from a judgment in Lee's favor - directed the trial court to decide this very issue). The trial court found that Lee had breached the lease and entered judgment in the landlord's favor. On appeal Lee argued that the court erred because its finding that the landlord had made the necessary and timely repairs wasn't supported by substantial evidence or was against the weight of the evidence. According to Lee, Morris Branson hadn’t proved, as it was supposedly required to, that it had properly repaired the building. But that argument, the Court held, had the burden of proof backward. Morris Branson’s breach of contract claim was premised on the fact that Lee failed to make rent payments after the termination, a fact Lee admitted. Because Lee also admitted the other elements of the contract claim, Morris Lee had proved all that was required of it. It was Lee’s affirmative defense – i.e., a defense entitling the defendant to judgment based on facts beyond those necessary for a plaintiff to win – that injected the casualty termination provision into the suit. As such, the Court concluded that it was Lee’s burden to prove that Morris Branson failed its obligations under that clause and thus justified Lee's termination of the lease. The court took a interesting footnote to remind us of “two components” of the burden of proof. First, the plaintiff must meet the burden of production, which requires it to provide enough evidence to justify submitting the issue to the fact-finder (and thus avoid a summary judgment or directed verdict). And second, it must actually convince the fact-finder that it should prevail. **Practice Tip** The weeks leading up to trial can be hectic. To avoid getting crossed-up on who must prove what at trial, go back to the pleadings and determine what claim or defense the fact in question is necessary to establish. After all, that is exactly what the court did in *McKinney.*

Faulty Record Quashes Preliminary Writ

anthony@bonuchilaw.com (BonuchiLaw) — Thu, 15 Jun 2017 22:00:00 +0700

(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. ==== Writ practice is a murky area for many, so lets say a quick word or two about it for context. A party aggrieved by an interlocutory ruling of the trial court can submit a petition for a writ of prohibition (or mandamus, depending on the circumstances) to ask the Court of Appeals for relief. Because appellate courts usually only review errors in final judgments, getting it to step in mid-litigation is extraordinary and hard. The question often boils down to this: if the claimed error can be addressed later on direct appeal after final judgment has been entered, the court of appeals will not issue a writ. The problem for Court of Appeals in *Cornerstone* was procedural. Getting a writ in Missouri is a two-step process governed by Mo. R. Civ. P. 97 and 84.24. In short, the aggrieved party petitions the court of appeals to hear its claim. If the court agrees, it will issue a preliminary writ to stay the proceedings below while the parties brief and argue the issues just as they would a normal appeal. Even getting the preliminary writ issued is rare, so it said something about Cornerstone’s argument that the Southern District granted the preliminary writ in the first place. But after full briefing and argument, the court quashed its preliminary writ and denied Cornerstone’s petition. In the end, the court held that it didn’t have all the documents necessary to decide the issues. The trial court had ordered Cornerstone to comply with the discovery requests in accordance with a protective order, but none of the parties had included that order in the record. Because the Court could not determine what exactly Cornerstone had been ordered to produce without reviewing the protective order, it was forced to deny Cornerstone’s relief. **Practice Tip**: Appellate courts are exceedingly cautious about granting extraordinary writs and any of number of open questions may lead to denial. Think expansively about what concerns the court may have about both the merits of the points raised and whether a writ is appropriate at all. Include all the documents and exhibits in the record that touch on those issues. And err on the side of over-inclusion.

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

anthony@bonuchilaw.com (BonuchiLaw) — Mon, 05 Jun 2017 02:00:00 +0700

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. ==== Alvis's lawsuit alleged that he had suffered serious injuries while logging on behalf of his employer on Morris's property. He asserted two theories of liability against Morris. First, he claimed that Morris was vicariously liability for allowing the employer to engage in inherently dangerous activities. Second, he alleged that Morris was engaged in a joint venture with Alvis’s employer and thus was jointly liable for the injuries Alvis sustained while working. The trial court granted Morris’s motion for summary judgment, finding as a matter of law that logging was not an inherently dangerous act and that there were no disputed facts that could show that Morris and Alvis's employer were engaged in a joint venture. In an opinion authored by Judge Burrell, the Court of Appeals dismissed the appeal because the statement of facts section of the appellant's brief failed to site directly to the actual statements of uncontroverted facts and Alvis's responses to them. The opinion explained that Rule 84.04(c) requires that the "statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument." In appeals from summary judgment, according to the court, that means the *only* facts that should appear in the statement of facts are those lifted directly from the statements of uncontroverted facts, and the responses thereto, that had been filed in the summary judgment record under Rule 74.04. Since Alvis's statement lacked these citations, the Court found that to decide the legal questions presented on appeal would require it stepping into the shoes of the appellant, which it is prohibited from doing. **Practice Tip** Prudent appellants must take care to include in the statement of facts section of their briefs express renditions of all potentially relevant assertions of uncontroverted fact, the responses to them, and any additional facts and responses asserted in the summary judgment record below. That of course means that litigants must take equal care to follow Rule 74.04 at the summary judgment stage itself to build a record that will allow compliance with *Alvis's *mandate in any ensuing appellate briefs.

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

anthony@bonuchilaw.com (BonuchiLaw) — Fri, 02 Jun 2017 20:00:00 +0700

[*DeFoe v. American Family Insurance*, WD8009 (Mo. Ct. App. W.D. May 30, 2017)](http://https://www.courts.mo.gov/file.jsp?id=113409) 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). ==== Finding that the rules DeFoe relied on where too vague to constitute clear public policy, the trial court dismissed his lawsuit for failure to state a claim. The Court of Appeals for the Western District affirmed. Judge Mitchell, writing for a panel that included Judges Newton and Welsh, began by outlining the “wrongful discharge doctrine.” Employers generally can fire at-will employees for any (or no) reason without incurring liability. But, Judge Mitchel wrote, employees are protected from dismissal if they’re (1) refusing to violate the law or a well-established mandate of public policy; (2) reporting wrongdoing or unlawful conduct to superiors or public authorities; or (3) “acting in a manner public policy would encourage.” Hinting perhaps that the latter category is a questionable notion, the opinion took care to separate the first two categories, which were established by the Supreme Court of Missouri in *Fleshner v. Pepose Vision Inst., P.C.*, 304 S.W.3d 81, 91 (Mo. banc 2010), from the third, which arose from a 2012 Opinion from the Eastern District of the Court of Appeals in *Delaney v. Signature Health Care Found.*, 376 S.W.3d 55, 57 (Mo. Ct. App. E.D. 2012). DeFoe had tried to cloak his conduct in the second and third categories, arguing that: “the number of cases to which he was assigned exceeded an amount that was reasonable and proper, and impacted the [sic] ability as an attorney to adequately represent the insureds’ interests.” The Court of Appeals rejected that contention. The problem for the Court was that the rules DeFoe relied on do not clearly prohibit or mandate his purported conduct. After all, the narrow public-policy exceptions to the at-will-employment doctrine are only implicated by a “clear mandate of public policy.” To be sure, the Court noted, an oppressive workload could in theory result in less than competent counsel to the client. But whether and when that might occur boils down to a question of professional opinion or judgment, which by definition cannot amount to the violation of a clearly articulated public policy. The headline from *DeFoe*, then, is that Rules 4-1.1 and 4-5.4(c) cannot be the bases for a wrongful-discharge claim arising from a workload that an at-will attorney alleges hinders the quality of service he or she can provide clients. **Practice Tip**. DeFoe also reminds us that Missouri’s fact-pleading standard has real teeth. The petition must assert “ultimate facts, or allegations from which to infer those facts.” Conclusions may have their place in petitions but they do not alone suffice. Yet it can be tough to tell whether an allegation is conclusory or factual. In editing or attacking a petition, a good rule of thumb is to ask whether the statements are conclusions the plaintiff will eventually be arguing that the jury or court should reach. If the truth of the statement at issue rests on the establishment of other facts, it is probably a conclusory assertion. In *DeFoe*, for example, the Court noted that the plaintiff's central claim – that his “caseload compromised his ability to effectively and adequately represent his clients” – was conclusory. Why? Because judging whether DeFoe’s caseload compromised his ability to represent his clients requires knowing how many cases he had, what they were about, whether they were complex or simple, and DeFoe’s level of experience and abilities. The Court found none of those ultimate facts in the DeFoe's petition.

Welcome to the Appellate Blog at Bonuchi Law

anthony@bonuchilaw.com (BonuchiLaw) — Thu, 01 Jun 2017 16:00:00 +0700

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.