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Case summaries for May 8 - May 14


Each week, The Missouri Bar provides links to all hand downs published online during the past seven days by the Supreme Court of Missouri and the Missouri Court of Appeals. The Missouri Bar has created headings and summaries for each case. Summaries are not part of the opinions of the Court. They have been prepared for the convenience of the reader and should not be quoted or cited.

Appellate | Business | Civil | DWI | Employment | Evidence | Personal Injury | Post-ConvictionReal Estate


Trial De Novo Before Appeal
In landlord-tenant actions in associate division, the remedy for a default judgment is a trial de novo, which does not require a motion to set aside the default judgment. Without a trial de novo, Court of Appeals has no authority to hear an appeal and no record to review.
Jim Needy, Respondent, vs. John Hammond, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108040


Valuation in Stock Buy-Out Affirmed
Shareholder oppression occurs when an action by the majority constitutes “burdensome, harsh, and wrongful conduct; a lack of honesty and fair dealing in the affairs of the company to the prejudice of some of its members for the benefit of others; or a visible departure from the standards of fair dealing and a violation of fair play on which every shareholder is entitled to rely when entrusting ... money to a company.” Directors of a closely held corporation owe a fiduciary duty to the minority shareholders, including a duty to avoid benefiting themselves at minority shareholder expense. A shareholder may also directly, not just derivatively, seek relief from her dismissal as an officer. Minority shareholder pleaded and made a submissible claim for breach of fiduciary duty. Her claim was not merely a claim for wrongful termination, as shown by naming as defendants the other stockholders, not the corporation, and seeking damages in the form of lost stock value and not lost wages. Supporting evidence included compensation that remaining directors paid themselves and their children, and the defendants waived objections when they introduced their own evidence on the salaries paid to defendant’s children. Statute provides that remedies for oppression include a stock buy-out. Date of valuation for that relief is the date just before the conduct complained of. The terms fair value and fair market value do not mean the same thing, and the circuit court considered both, as well as expert opinions for matters of marketability and minority discounts, in assessing damages for overlapping claims. Those damages being subject to a variety of calculations, they were unliquidated for the purposes of, and circuit court therefore did not err in denying an award of, pre-judgment interest. The circuit court’s finding that the majority acted in bad faith does not require an award of attorney fees to minority shareholder, statute protects the indemnification of corporate officers, and the remedy for an improper indemnification of majority shareholders is a derivative action.
Joan L. Robinson, Respondent/Cross-Appellant, vs. John F. Langenbach, Judy Lanfri f/k/a Judy Longbrook, and Perma-Jack Company, Appellants/Cross-Respondents.
(Overview Summary)
Supreme Court of Missouri - SC97940


Statute on Summary Judgment Discussed
Plaintiff brought an action on account for services. Plaintiff filed a motion for summary judgment. A statute governing that motion provides that plaintiff’s motion establishes that charges were reasonable with an affidavit saying so if it includes “an itemized statement of the service and charge.” Plaintiff’s affidavit failed to itemize the service for each date, so it did not establish that the charges were reasonable. Also, defendant raised the defense of recoupment, arguing that the services were defective or incomplete or both, which plaintiff’s motion did not address. Therefore, circuit court erred in granting plaintiff summary judgment.
Christopher Rank, DMD, Respondent, vs. Sandra Smith, Appellant.
(Overview Summary)​
Missouri Court of Appeals, Eastern District - ED108387


Guilty of Possession Means No Reinstatement
Statutes governing a petition for reinstatement of driving privilege require denial for specified reasons. Those reasons include a finding of guilty on a charge of possessing a controlled substance within five years of filing the petition, which appellant showed, so circuit court erred in granting the petition. How long the possession charge was pending before the finding of guilt occurred is irrelevant.
Eric Branson, Respondent, vs. Director of Revenue, State of Missouri, Appellant
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108237


Statutes Award Attorney Fees Only, Not Litigation Expenses
A motion in limine does not preserve the ruling on an objection for review. “To preserve an objection made in chambers for appellate review, a party must renew the objection in court and make a record that identifies not only the action to which the party is objecting but also the legal basis for the objection.” Missouri Human Rights Act provides an award of court costs and “reasonable attorney fees” to certain parties. Court costs are items specified by statute and do not include any litigation expenses. Reasonable attorney fees do not include all litigation expenses but do include out-of-pocket expenses that an attorney ordinarily passes on to a client. Remanded to determine an award for attorney fees at trial and on appeal.
J.L. Wilson, Respondent, vs. City of Kansas City, Missouri, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC97712


Probity of Photos Is for the Jury to Determine
A challenge to relevance does not preserve a challenge to foundation. The foundation for a photograph requires testimony, from someone familiar with the thing depicted, that the photograph fairly and accurately depicts that thing. How much a car wreck caused plaintiffs’ injuries was a jury question to which photographs of wrecked car were logically relevant. Disputed photographs were grainy and pixelated, but that went to their weight, not their relevance, logical or legal. Circuit court did not err in admitting the photographs and the Supreme Court affirms the circuit court’s judgment.
Denise Kappel, et al., Appellants, vs. Fredric Prater, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98010

Personal Injury

Wrong Room Plaintiff Showed No Duty and No Causation
The innkeeper-guest relationship includes an innkeeper’s duty to protect the guest from foreseeable harm. Foreseeable harm to plaintiff did not include plaintiff losing his job. That happened after plaintiff became voluntarily intoxicated, asked for a key to the wrong room, broke the security chain on the door of that room, saw unknown persons sleeping in that room, got into bed with a nine-year-old child, “and initiat[ed] inappropriate physical contact with her.” “[T]he attenuated relation which [the hotel’s] conduct bears to the plaintiff’s injuries” negated the element of causation.
Daniel T. Hughes, Appellant, vs. Maritz, Wolff & Co., LLC, and Ritz-Carlton Hotel Company of Delaware, LLC, Respondents.
(Overview Summary)​
Missouri Court of Appeals, Eastern District - ED108077

Condition of Premises Not Alleged
Plaintiff sought payment of her damages, from a dog bite, under medical payments of insured’s policy, which covered bodily injury arising from “a condition on the insured premises [.]” Insurer alleged that the dog was owned by a third party, and not in insured’s care, but did not address whether the dog was a condition on the insured premises. Therefore, the circuit court had no basis on which to grant insured’s motion. Court of Appeals will not review the denial of plaintiff’s motion for summary judgment because plaintiff’s motion merely stated that, but did not argue how, plaintiff’s motion was inextricably intertwined with the grant of insurer’s.
Missouri Court of Appeals, Southern District - SD36261

Instruction on Following Too Closely Was Due
A party is entitled to instructions on any claim that the evidence supports. Whether the evidence, including circumstantial evidence, supports the element of causation is for the finder of fact to determine, and the fact finder may find multiple causations for damages. Statute on following too closely protects vehicles other than rear-ended vehicles. "Defendant’s close approach to the minivan [of a third party] and his move to the left to go around it are what set the collision [with appellant] in motion." Appellant was due an instruction on following too closely, and its omission prejudiced appellant by denying presentation of that theory to the jury.
NORA BETH FAIRBANKS, Plaintiff-Appellant v. CHRISTOPHER L. HENDRICKS, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD35127


Trial Counsel and Appellate Counsel Not Ineffective
Trial counsel was not ineffective for choosing not to make a meritless objection to evidence that was admissible under multiple theories. Appellate counsel was not ineffective for choosing not to challenge the admission of evidence that made no difference in the affirmation of the judgment. Counsel has “no duty to raise every possible issue asserted in the motion for new trial on appeal, and no duty to present non-frivolous issues where appellate counsel strategically decides to winnow out arguments in favor of other arguments.”
RANDALL S. LUDEMANN, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36237

Real Estate

Plain Language of Declaration Controls
Homeowner association filed a motion for summary judgment on a member’s claim for enforcement of association declarations. Declarations required the association to maintain any retaining wall that it had built, but the association established without genuine dispute that member’s rock wall was natural, not built by the association to retain anything. “[T]he nature of the limestone rock wall is a question of fact” established by evidence not limited to quotations from the declarations, so the member “must show there is a genuine, not merely semantic, dispute as to the nature of the limestone rock wall in her backyard.”
Janet Behrick, Appellant, vs. Konert Farms Homeowners' Association, Respondent.
(Overview Summary)
​Missouri Court of Appeals, Eastern District - ED108092

Option Agreement Enforced
Specific performance is an equitable remedy that is subject to discretion, not a matter of right. The parties owned interests in real estate and, by written agreement, each promised to offer their share to the other at a set price. The agreement further provided that “[f]ailure by either party to exercise such option shall nullify this Agreement and release the property thereafter.” In that context, “either party” means both parties, and “such option” means both options, so the agreement is null only if no party buys out the other. Those mutual promises constituted consideration supporting enforcement of an option contract and, even if they didn’t, other provision in related transactions also constituted consideration—all transactions were parts of a single estate plan.
Shirley S. Brown vs. Stephen L. Smith
(Overview Summary)
Missouri Court of Appeals, Western District - WD82873