The Flag, Jan. - Feb. 2022

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.

FOR RETALIATION CLAIM, IT IS SUFFICIENT FOR PLAINTIFF TO HAVE GOOD FAITH BELIEF THAT THERE WERE GROUNDS FOR THE CLAIM OF DISCRIMINATION

Gray v. Missouri Dept. of Corrections, 2021 WL 4057199 (Mo App. W.D. 2021).

The Missouri Department of Corrections (DOC) appealed the circuit court’s judgment, entered on a jury verdict, in favor of Shelley Gray’s claim of retaliation under the Missouri Human Rights Act (MHRA).² The Missouri Court of Appeals-Western District affirmed the circuit court’s judgment in Gray v. Missouri Department Of Corrections.³

The DOC argued a jury instruction improperly equated a Family and Medical Leave Act (FMLA) claim with a disability discrimination claim under the MHRA, but FMLA issues are not covered under the MHRA’s definition of disability. Even presuming that is true, the court ruled, Gray did not have to report or complain about disability discrimination as defined by the MHRA to maintain her retaliation action.⁴

To present a prima facie case of retaliation under the MHRA, a plaintiff must show 1) the plaintiff complained of discrimination, 2) the employer took adverse action against the plaintiff, and 3) a casual relationship existed between the complaint of discrimination and the adverse employment action.⁵ However, “it is irrelevant to a claim of retaliation that the act complained of was not legally actionable. The only issue is whether the person making the complaint has a reasonable good faith belief that there were grounds for the claim of discrimination or harassment.”⁶

“Whether attempting to keep employees from taking FMLA leave is actually an unlawful discriminatory practice on the basis of disability under the MHRA is irrelevant to Gray’s MHRA retaliation claim that, she was retaliated against after expressing opposition to what she reasonably and in good faith believed to be an unlawful discriminatory practice on the basis of disability,” the Missouri Court of Appeals-Western District wrote.⁷

PROPER SERVICE IS REQUIRED TO ENTER A DEFAULT JUDGMENT

Marti v. Concrete Coring Company of North America, 630 S.W.3d 920 (Mo. App. E.D. 2021).

Samuel Marti filed a petition for negligence against Concrete Coring Company of North America (CCC) in 2018 after a CCC employee dropped a piece of concrete on Marti’s hand, which led to permanent injuries. CCC did not answer the petition, so the trial court entered a default judgment in favor of Marti. CCC filed a motion to set aside the default judgment, claiming the person who accepted service on behalf of CCC was not a person in charge of the office and that the individual did not forward the summons to a qualified person with the company. CCC also argued the sheriff’s return was “insufficient on its face because it stated the summons and petition were delivered to an individual defendant, rather than a person qualified to accept service on behalf of a corporation.”⁸ Following a hearing, the trial court found it did not have jurisdiction to enter the default judgment due to lack of proper service, so it set aside the default judgment. Marti appealed the trial court’s judgment setting aside the prior default judgment. The Missouri Court of Appeals-Eastern District affirmed the trial court’s ruling in Marti v. Concrete Coring Company of North America.⁹

A “return of service shall be considered prima facie evidence of facts recited therein.”¹⁰ However, as an initial matter, a return of service “must show on its face that every requisite of the statute has been complied with.”¹¹ If the sheriff’s return “is deficient on its face, the court acquires no jurisdiction over the party allegedly served.”¹² “A judgment entered against a defendant by a court lacking personal jurisdiction over the defendant is void.”¹³ “Here, we do not reach the issue of whether CCC presented clear and convincing evidence to impeach the sheriff’s return of service because we find it is deficient on its face,” the court ruled. “The return as it stands in the record is deficient on its face, thus the trial court did not err in determining the default judgment was void for lack of personal jurisdiction.”¹⁴

TORT CLAIM WAS NOT COVERED BY FORUM SELECTION CLAUSE IN THE CONTRACT

Luebbering v. Varia, 2021 WL 4530521 (Mo. App. E.D. 2021).

Adam and Stephanie Luebbering appealed the trial court’s grant of Lexicon Relocation, LLC’s motion to dismiss. The appellants argued the trial court erred in enforcing the forum selection clause in the agreement between the two parties and dismissing the case. The Missouri Court of Appeals-Eastern District reversed the trial court’s ruling in Luebbering v. Varia.¹⁵

The Luebberings argued the trial court erred because the outbound forum selection clause in the agreement they signed does not apply to their tort claims against Lexicon Relocation since the forum selection clause does not include precise language requiring tort claims to be litigated in the contractually selected forum. To determine if a forum selection clause that applies to contract actions also extends to non-contract claims depends on whether resolution of the claims relates to interpretation of contract.¹⁶

The existence of a forum selection clause in a contract that requires contractual disputes to be litigated in a specific forum does not control the forum for tort claims between the same parties.¹⁷ “The language in the forum selection clause incorporated in the contract between the parties is not specific enough to encompass the tort claims alleged” by the Luebberings.¹⁸

NOTICE OF CLAIM REQUIREMENT IN CITY CHARTER CONFLICTED WITH STATE STATUTES

Zang v. City of St. Charles, 2021 WL 4850931 (Mo. App. E.D. 2021).

Christopher Zang alleged he was injured due to a bicycle accident on a metal bridge in St. Charles. The trial court dismissed Zang’s claim of premises liability against St. Charles, citing failure to give timely notice of his injury pursuant to the city’s charter. The trial court found St. Charles’ charter notice provision mirrored §§ 77.600, 79.480, 81.060, and 82.210 RSMo., and the charter provision was “not inconsistent or in conflict with state law.”¹⁹ Citing Jones v. City of Kansas City, ²⁰ the trial court held notice was a condition precedent to maintaining an action against St. Charles.

In his sole point on appeal, Zang alleged the trial court erred in granting St. Charles’ Motion to Dismiss the premises liability count of his First Amended Petition. Zang alleged he was not required to give notice of his claim as required under § 12.3 of St. Charles’ charter since the charter provision is in conflict with state statutes, §§ 537.600.1(1), 537.600.1(2), 82.210, and 516.120 RSMo. The Missouri Court of Appeals-Eastern District reversed the trial court’s judgment in Zang v. City of St. Charles.²¹

City ordinances are to be upheld “unless the ordinance is expressly inconsistent or irreconcilable conflict with the general law of the state.”²² A city ordinance is inconsistent with state law when it “permits what statute prohibits” or “prohibits what the statute permits.”²³ “‘Ordinances may supplement state laws’ without creating a conflict, ‘but when the expressed or implied provisions of each are inconsistent in irreconcilable conflict, then the statutes annul the ordinances.’”²⁴

Section 12.3 of St. Charles’ charter prohibits all actions against the city unless the plaintiff gives the city notice within 90 days of an incident “for or on account of any injury growing out of alleged negligence of the city.” “This language is so broad that it encompasses all claims subject to the express waiver of sovereign immunity set forth in Section 537.6001, but the state statutes only apply to ‘any injuries growing out of any defect in the condition of any bridge, boulevard, street, sidewalk or thoroughfare.’ Moreover, the Missouri Supreme Court has only very narrowly construed even the limited provisions of the notice statutes,” The Court of Appeals wrote.²⁵  This means St. Charles’ charter provision is “void in that it ‘prohibits what the statute permits’ and irreconcilably conflicts with state statutes.”²⁶

Endnotes                                 

1 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.

2 Section 213.010, RSMo (2016).

3 2021 WL 4057199 (Mo App. W.D. 2021).

4 Id. at 3.

5 McGaughy v. Laclede Gas Company, 604 S.W.3d 730, 751 (Mo. App. 2020).

6 Soto v. Costco Wholesale Corp., 502 S.W.3d 38, 48 (Mo App. W.D. 2016).

7 2021 WL 4057199, 4 (2021).

8 Marti v. Concrete Coring Company of North America, 630 S.W.3d 920, 921 (Mo. App. E.D. 2021).

9 Id.

10 Rule 54.22(a). “[A] return of service may be impeached by clear and convincing evidence showing the true facts of service.”  Howell v. Autobody Color Co., 710 S.W.2d 902, 905 (Mo. App. S.D. 1986). 

11 State ex rel. Bufford v. Dalton, 479 S.W.2d 204, 206 (Mo. App. 1972); Carter v. Fylnn, 112 S.W.2d 364, 369 (Mo. App. 1938).

12 Gerding v. Hawes Firearms Co., 698 S.W.2d 605, 607 (Mo. App. E.D. 1985).

13 Bueneman v. Zykan, 52 S.W.3d 49, 58 (Mo. App. E.D. 2001).

14 Marti v. Concrete Coring Company of North America, 630 S.W.3d 920, 921 (Mo. App. E.D. 2021).

15 2021 WL 4530521 (Mo. App. E.D. 2021).

16 Major v. McCallister, 302 S.W.3d 227, 231 (Mo. App. S.D. 2009).

17 See Service Vending Co. v. Wal-Mart Stores, Inc. 93 S.W.3d 764, 768 (Mo. App. S.D. 2002).

18 2021 WL 4530521 at 4.

19 Id. at 1.

20 15 S.W.3d 736, 737 (Mo. banc 2000) (citing Dohring v. Kansas City, 71 S.W.2d 170, 171 (Mo. App. 1934)),

21 2021 WL 4850931 (Mo App. E.D. 2021).

22 City of Kansas City v. Carlson, 292 S.W.3d 368, 373 (Mo. App. W.D. 2009) (citing McCollum v. Dir. Of Revenue, 906 S.W.2d 368, 369 (Mo. banc. 1995)).

23 Cape Motor Lodge, Inc. v. Cape Girardeau, 706 S.W.2d 208, 211 (Mo. banc 1986).

24 Zang, 2021 WL 4850931 at 2 (citing State ex rel. Teefey v. Bd. Of Zoning Adjustment of Kansas City, 24 S.W.3d 681, 685 (Mo. banc 2000)).

25 Id. at 4 (citing Jones v. City of Kansas City, 15 S.W.3d 736, 737 (Mo. banc 2000)).

26 Id. at 4 (citing Cape Motor Lodge, Inc. v. City of Cape Girardeau, 706 S.W.2d 208, 211 (Mo. banc 1986)).