The Flag: Expert testimony, private roads, and more
Vol. 79, No. 2 / March - April 2023
W. Dudley McCarter
W. Dudley McCarter, a former president of The Missouri Bar, is a partner in the St. Louis law firm of Behr, McCarter, Potter, Neely & Hyde.
Expert testimony must meet test of reliability
State v. Addie, 655 S.W.3d 456 (Mo. App. W.D. 2022).
James Addie appealed his conviction for first-degree murder and armed criminal action, contending the circuit court “abused its discretion by admitting expert testimony regarding tire track impressions that was not ‘shown to be the product of reliable principles and methods.’”1 The Missouri Court of Appeals-Western District affirmed the circuit court’s decision, finding “no abuse of discretion in the admission of the expert evidence.”2
Section 490.065.2(1) states an expert may testify if “the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts of the case.” The circuit court is the gatekeeper for the admissibility of expert testimony3 and must conduct a three-part test. The court must decide “(1) whether the expert is qualified; (2) whether the testimony is relevant; and (3) whether the testimony is reliable.”4 Addie’s argument focused solely on the reliability of the expert’s testimony and not the expert’s qualifications or relevancy of the evidence. When establishing the reliability of expert testimony and the expert’s scientific theory or technique, courts consider testing, peer review, error rates, and “acceptability” in the scientific community.5 Addie argued the state “failed to cite a specific case on tire impressions” under Daubert or § 490.065.6 “However, the test for reliability is ‘flexible,’ and the ‘list of specific factors neither necessarily now exclusively applies to all experts or in every case.’”7
The Missouri Court of Appeals-Western District “held that because the language of Section 490.065 now mirrors [Federal Rules of Evidence] 702 and 703, and because FRE 702 and 703 are interpreted under Daubert and its progeny, the cases interpreting those federal rules remain relevant and useful in guiding our interpretation of Section 490.065.”8 The court also stated:
The record supports the circuit court’s determination that [the expert’s] testimony satisfied the requirements of reliability under Daubert and Section 490.065 for an expert opinion regarding tire track impressions.9
Mechanic's lien must contain a just and true account of demand due
Rand Construction Company v. Caravan Ingredients, Inc., 2022 WL 17587419 (Mo. App. W.D. 2022).
Rand Construction Company appealed the trial court's judgment denying it relief for its claim for enforcement of a mechanic’s lien. The Missouri Court of Appeals-Western District affirmed the judgment in Rand Construction Co. v. Caravan Ingredients, Inc.10
Section 429.010-429.360 governs mechanic’s liens, “an equitable remedy with ‘the purpose of giving security to mechanics and material[men] for labor and materials furnished in improving the owner’s property.’”11 Section 429.080 requires every original contractor to file “a just and true account of the demand due to him or them after all just credits have been given.”12 The account must “provide a property owner with sufficient information to investigate whether the material and labor described in the lien has been actually used to improve the property and whether the amount charged is reasonable and proper.”13
A “just and true account” of a mechanic’s lien should only include lienable amounts (amounts for work or labor actually performed).14
It is axiomatic that a mechanic’s lien will not be imposed on a property if the lien claimant fails to establish that it is entitled to payment. If a trial court determines independent of a mechanic’s lien’s validity that a plaintiff has failed to sustain its burden to prove that it is entitled to any additional payment from the defendant, then the plaintiff’s mechanic’s lien necessarily fails.15
The Missouri Court of Appeals-Western District found Rand Construction Company’s claim did not prove its entitlement to additional payments from Caravan Ingredients, Inc. (‘Corbion”).
Rand’s evidence did not separate out any portion of the work done such that Corbion, the property owner, had “sufficient information to investigate whether the material and labor described in the lien has actually been used to improve the property and whether the amount charged is reasonable and proper.” In total, Rand has failed to prove it is entitled to any additional payments from Corbion.16
Derivative action is required when the alleged harm is to the corporation
Laske v. Krueger, 2023 WL 139283 (Mo. App. W.D. 2023).
Tim Laske, individually and on behalf of the others similarly situated, appealed the trial court’s judgment granting motions to dismiss filed by Mark Krueger, Werner Sublette, Ron Phillips, and Charles Zeman (collectively, “respondents”). Laske argued the trial court erred in dismissing his petition because his claims against the respondents were direct, not derivative, claims. The Missouri Court of Appeals-Western District affirmed the trial court’s ruling in Laske v. Kruger.17
Derivative actions must be brought in accordance with Rule 52.09.18
A derivative action is a suit by the corporation conducted by the shareholders as the corporation’s representative. The shareholder is only a nominal plaintiff, and the corporation is the real party in interest. Derivative actions are aimed at vindicating injuries “to the corporation — to the shareholders collectively — and not the shareholders individually.”19
A shareholder can file a direct action against corporate officers and directors to “redress individual wrongs.”20 Individual actions “provide the logical remedy, if the injury is to shareholders themselves directly, and not to the corporation.”21 Direct actions are permitted “so that the individual shareholders or discrete groups of shareholders could redress injuries unique to them rather than to the corporation as a whole.”22 Commonly, direst actions arise when individual shareholders or a discreet group of shareholders can’t exercise their rights as shareholders, such as inspecting corporate records.23
Laske alleged the respondents “breached their fiduciary duties of care and loyalty to act in the best interest of the shareholders by securing a transaction that offered the best value available to the shareholders.”24 The Court of Appeals found Laske’s claims to be derivative and “applicable equally to all stock in the company.”25 “An action that affects all shareholders is generally derivative in nature.”26
Private road established by proof of strict necessity
Ford v. Giovanelli, 2023 WL 313709 (Mo. App. S.D. 2023).
Married couple Jared Ford and Mary Williams own real estate in Texas County, Missouri. The Ford-Williams property is surrounded by land owned by the U.S. Forest Service, as well as appellants Robert D. Giovanelli II and Kerith A. Giovanelli (collectively, “the Giovanellis”). In 2019, Ford and Williams filed a petition against the Giovanellis seeking to establish a private road by strict necessity over 300 feet of the Giovanellis’ property to access the Ford-Williams property. Following a bench trial, the trial court determined Ford and Williams had strict necessity for the establishment of a private road over the Giovanellis’ property. The Giovanellis appealed the trial court’s decision, and the Missouri Court of Appeals-Southern District affirmed the judgment.27
Under § 228.342, an owner of a landlocked piece of property may establish a private road over the property of another if the private road sought to be established “is a way of strict necessity.” “‘Strict necessity’ has been interpreted to mean the absence of a reasonably practical way to and from the plaintiff’s land that the plaintiff has a legally enforceable right to use.”28 “[I]f the property has no physical access to a public road (such as an express easement, for example), then strict necessity for a private roadway has been established.”29 The trial court found the Ford-Williams property did not adjoin a public roadway, and a public road does not go through or alongside it. The Giovanellis argued the trial court erred in this finding because the “Green Road” (U.S. Forest Road 1539) was considered a public road and did not require a permit to use.
The trial court ruled Forest Road 1539 did not constitute a “reasonably practical way to access the Ford-Williams property.”30 The court added: “Forest Road 1539, in its current condition, is impractical, and does not provide a dependable means of access for Ford and Williams.”31 The Court of Appeals affirmed the trial court’s judgment granting Ford and Williams a private road by necessity over a 300-foot portion of the Giovanellis’ driveway.
1 State v. Addie, 655 S.W.3d 456 (Mo. App. W.D. 2022).
2 Id. at 460.
3 State v. Marshall, 596 S.W.3d 156, 159 (Mo. App. 2020).
4 Id. (quoting State ex rel. Gardner v. Wright, 562 S.W.3d 311, 319 (Mo. App. 2018)).
5 Id. at 160 (referencing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993)).
6 Addie, 655 S.W.3d at 459.
7 Id. (quoting Kumho Tire Co., Ltd. V. Carmichael, 526 U.S. 137, 141 (1999)).
8 State v. Marshall, 596 S.W.3d 156, 159 (Mo. App. 2020) (referencing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 593-94 (1993).
9 Addie, 655 S.W.3d at 460.
10 2022 WL 17587419 (Mo. App. W.D. 2022).
11 Brentwood Glass Co. v. Pal’s Glass Serv., Inc., 499 S.W.3d 296, 300 (MO. banc 2016) (quoting Bob DeGeorge Assocs., Inc. v. Hawthorn Bank, 377 S.W.3d 592, 598 (Mo. banc 2012)).
12 R.K. Matthews Inv., Inc. v. Beulah Mae Housing, LLC, 379 S.W.3d 890, 898 (Mo. App. W.D. 2012) (citing Commercial Openings, Inc. v. Mathews, 819 S.W.2d 347, 349 (Mo. banc 1991)).
14 Section 429.010, RSMo.
15 R.K. Mathews Inv., Inc., 379 S.W.3d at 900.
16 Rand Construction Company, 2022 WL 17587419 at 8 (citing R.K. Matthews Inv., Inc., 379 S.W.3d at 898).
17 2023 WL 139283 (Mo. App. W.D. 2023).
19 Nickell v. Shanahan, 439 S.W.3d 223, 227 (Mo. banc 2014) (quoting Centre Bank of Kan. City, Nat’l Ass’n v. Angle, 976 S.W.2d 608, 613 (Mo App. W.D. 1998)).
20 Nickell, 439 S.W.3d at 227.
23 See Geiselmann v. Stegeman, 443 S.W.2d 127, 131 (Mo. 1969).
24 Laske, 2023 WL 139283 at 2.
25 Id. at 4.
26 Nickell, 439 S.W.3d at 228.
27 Ford v. Giovanelli, 2023 WL 313709 (Mo. App. S.D. 2023).
28 Moss Springs Cemetery Ass’n v. Johannes, 970 S.W.2d 372, 376 (Mo. App. S.D. 1998) (quoting Farrow v. Brown, 873 S.W.2d 918, 920 (Mo. App. E.D 1994)).
29 Short v. Southern Union Co., 372 S.W.3d 520, 531 (Mo. App. W.D. 2012).
30 Ford, 2023 WL 313709 at 5.