08:59 AM

Case summaries for July 22 - July 28, 2022


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.

Administrative | Appellate | Probate | Real Estate | Tax | Workers' Compensation


Sunshine Law Notice Violation Jeopardizes Meeting 
County commission failed to post notice of its meetings as required by statute. “While a global pandemic may justify the suspension of in-person meetings, it does not justify dispensing with the notice requirements [, n]or are we free to fashion such an exception to Missouri's Sunshine Law.” Remanded to determine whether enforcing the notice provision outweighs any need to sustain any action taken in violation of that provision. A point relied on, failing to show reversible error in the context of the ruling appealed, preserves nothing and the argument section does not change that result. 
Missouri Court of Appeals, Southern District - SD37343   


Claim Survived Bankruptcy, No Final Judgment 
With exceptions inapplicable to the action, appeal is possible only upon final judgment, which is the judgment that resolves all issues as to all parties. That question is for an appellate court to determine without regard to the parties’ or circuit court’s perceptions. Plaintiff filed an action in circuit court, including a claim for breach of fiduciary duty, and then filed Chapter 7 bankruptcy. In bankruptcy, the claim for breach of fiduciary duty was not scheduled, not administered, and not abandoned. The claim, therefore, remained the bankruptcy estate’s property even after the bankruptcy case closed, and nothing showed that the bankruptcy trustee had resolved that claim, so the claim was still pending when the circuit court issued the ruling appealed. That ruling had “no language ... that resolved any pending claim against any party [,]” even by implication, including the claim for breach of fiduciary duty. Because the claim remained unresolved, no final judgment was before the Court of Appeals, so the Court of Appeals dismisses the appeal. 
Luke Reynolds, Plaintiff, vs. Samuel Berger, and TMF Holdings, LLC, Defendants, Left Hand Productions, Inc., Appellant, 816 Geyer, LLC, Intervenor, and Dresden Capital Management, LLC, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109902 


Claim for Abuse of Process Stated in Schlafly Trust Suit  
To survive a motion to dismiss for failure to state a claim, evidentiary facts are unnecessary, and plaintiff need only allege facts constituting the elements of plaintiff’s theory. Plaintiff’s theory was abuse of process; the elements of which include misuse of process, which includes “engag[ing] in improper litigation tactics to achieve collateral ends." Plaintiff alleged that the underlying action to contest trust amendments’ validity had another unstated and improper purpose. Plaintiff “did not simply allege an improper purpose" but also described those improper purposes. Plaintiff’s petition stated a claim for abuse of process, and the circuit court’s judgment of dismissal was error, so the Supreme Court reverses and remands. 
Bruce S. Schlafly, Appellant, vs. Anne S. Cori, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99358 

Real Estate

Holdover Plus Payment Equals Renewal of Lease 
Real property lease included an option for lessee to renew, which required lessee’s notice of intent to renew six months before the lease terms’ expiration. After the lease’s expiration, lessee continued to pay, and lessor to accept, rents before lessor filed an action for unlawful detainer. “By remaining in possession and paying rent after the expiration of the lease, the lessee elects to exercise the option [while, s]imply by accepting rent, the lessor waives the written notice requirement” for the entire term even if the amount does not cover the entire term. Evidence that lessee did not provide the required notice, and lessor’s statement to lessee about that fact, are therefore irrelevant. An appellate court need not review multifarious points relied on. Circuit court’s judgment for lessee affirmed. 
Eighty Hundred Clayton Corp., Respondent, vs. Lake Forest Development Corp., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110390  

Genuine Dispute Remains in Zoning Action 
City denied property owner’s claim for re-zoning. On appeal to the circuit court, circuit court presumes that current zoning is unreasonable, so property owner’s burden included rebutting that presumption beyond the point of being “fairly debatable [.]” That means showing that public benefit of current zoning outweighs the private detriment of denying re-zoning. Private detriment focuses on the subject property’s value, which property owner only partly addressed in property owner’s motion for summary judgment—the motion addressed the difficulties of development under current zoning, but not the possibilities of development under re-zoning. In response, the City established a public benefit in current zoning without dispute. Therefore, property owner did not establish the elements of the claim without genuine dispute, and summary judgment for the property owner was erroneous.     
The City of Arnold, Appellant, vs. Ray Dickhaner, LLC, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110103  


Cable Company Subject to Business License Tax 
Missouri’s Declaratory Judgment Act allowed respondent local government entities to bring an action for determination of municipal ordinances in circuit court. “No general principle of law is better settled or more fundamental than that every state has general legislative power over all property within its borders.” Statutes authorized respondent local government entities to tax businesses listed by type, and respondents’ ordinances listed telephone companies, which was specific enough to include appellants’ Voice Over Internet Protocol services. Slight differences in words describing such service made no difference and expert testimony does not control statutory interpretation. Measuring the tax by gross receipts from services originating in each respondent’s boundaries respectively, regardless of the recipient’s location, was consistent with the ordinances and enabling statutes. Amendments to Missouri’s classification of counties did not repeal the taxing ordinances. The United States’ Telecom Act of 1996 expressly saves local business license taxes from pre-emption. The United States’ Cable Act of 1984 provides a safe harbor for local taxes that treat appellant like any other business. Appellants showed no error in the calculation of taxes due. 
Collector of Winchester, Missouri, and City of Winchester, Missouri, Respondents, vs. Charter Communications, Inc., and Charter Communications, LLC, Defendants, Charter Fiberlink-Missouri, LLC, and Charter Advanced Services (MO), LLC, Appellants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109513

Workers’ Compensation

Commission Can Reject Uncontroverted Medical Evidence 
Even if the claimant offers evidence supporting each element of a claim for Second Injury Fund liability, the Fund may prevail without presenting any evidence, because the Labor and Industrial Relations Commission may disbelieve that evidence. And when expert medical evidence supports more than one finding of fact, the Commission may choose the finding that disfavors the claim. So, when the expert medical evidence on causation between claimant’s work and claimant’s injury “stood in equipoise [,]” and the Commission found the facts against causation, it was simply determining that claimant had not carried the claimant’s burden of persuasion and did not exceed its authority. 
Robert March, Appellant, vs. Treasurer of the State of Missouri - Custodian of the Second Injury Fund, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99381 

Settlement Covered Successive Claim 
Claimant settled an earlier claim for repetitive injury to the "left upper extremity [,]” then made a later claim related to claimant’s left wrist, which the Labor and Industrial Relations Commission denied because of the settlement. Claimant challenged that conclusion of law as if it were a finding of fact, and so used an inapplicable analysis, but the Court of Appeals can nonetheless discern the challenge raised in claimant’s brief. The settlement “included pain in the left shoulder and numbness and tingling in the left hand, both of which are anatomical components of the left upper extremity [,]” and medical evidence showed that the wrist injury had the same cause as the rest of the earlier claim. The Commission did not err in concluding that the Commission had no authority over the later claim. 
Ronald Lamy vs. Stahl Specialty Company 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD85163