The Flag, Nov. - Dec. 2020

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, P.C.

A VIOLATION OF SUPREME COURT DISCIPLINARY RULES DOES NOT CREATE PRIVATE CAUSE OF ACTION FOR CLIENT

The plaintiff, Julie Landwehr, appeals pro se the judgment entered by the Circuit Court of Franklin County in favor of the defendants, Chad Hager and Stange Law Firm, P.C. (collectively “the law firm”). The trial court granted the law firm’s motion to dismiss Landwehr’s claim for a refund of attorney’s fees paid, and granted the law firm’s counterclaims for breach of contract and unjust enrichment for legal fees owed but not paid.  We dismiss Landwehr’s appeal for failure to comply with Supreme Court Rules 84.04 and 84.13(a).²

Viewed in the light most favorable to the judgment, the record reveal that Landwehr hired the law firm to represent her in a family-law matter. The parties executed a fee agreement that, among other provisions, stated Landwehr would pay the law firm on an hourly basis for legal services. During its one year of representation, the law firm billed Landwehr some $15,000. Landwehr paid the law firm about $7,300 before refusing to pay anything further. With leave of court, the law firm withdrew from Landwehr’s family-law case, and Landwehr hired other counsel to conclude the matter.³

“Landwehr then filed suit in small-claims court seeking $5,000 from Hager.”⁴ “Hager filed counterclaims against Landwehr for breach of contract and unjust enrichment seeking $7,808.59 in unpaid fees for work done. The court transferred the case to the associate circuit division, and allowed Stange Law Firm to intervene.”⁵

“The court granted the law firm’s motion to dismiss Landwehr’s action for failure to state a claim, and the parties proceeded to trial on the law firm’s counterclaims. Landwehr argued that she paid the law firm over $7,000, but believed the work done was worth only about $2,000. […]”⁶ “The trial court rendered judgment in favor of the law firm in the amount of $7,808.59.”⁷ Landwehr appealed in Landwehr v. Hager.

“Pro se appellants are held to the same standards as attorneys, and must comply with Supreme Court Rules of Appellate Procedure. Houston v. Weisman, 197 S.W.3d 204, 205 (Mo. App. E.D. 2006).” “Landwehr’s brief fails to comply with Rules 84.04 and 84.13 so substantially that we cannot review her appeal.”⁸

As a matter of policy, we prefer to adjudicate non-compliant pro se briefs on the merits, and will do so ex gratia when we can ascertain the essence of an appellant’s arguments, notwithstanding minor shortcomings in briefing. [Unified CCR Partners v. Myers, 563 S.W.3d 740, 743 (Mo. App. E.D. 2018)]. However, when the brief is so deficient that we cannot competently rule on the merits without first reconstructing the facts and supplementing the appellant’s legal arguments, then we must dismiss the appeal because the appellant has preserved nothing for review.⁹ We simply cannot assume the role of advocate for a party.¹⁰

Finally, aside from the briefing deficiencies, we must reject Landwehr’s claim. Landwehr asks us to find the trial court erred because it failed to hold the law firm to Rule 4-1.5 regarding fees.  Our Supreme Court has the inherent authority to regulate the practice of law and administer attorney discipline. In re Forck, 418 S.W.3d 437, 441 (Mo. banc 2014). Rule 4-1.5 is among the Rules of Professional Conduct that the Supreme Conduct employs in exercising this authority.¹¹

An attorney’s failure to comply with the obligations or prohibitions imposed by the Rules of Professional Conduct serves as a basis for invoking the disciplinary process administered by the Supreme Court.  Rule 4, Scope ¶ 19. The courts can look to the disciplinary rules for guidance when considering the reasonableness of attorney’s fees. Klinkerfuss v. Cronin, 289 S.W.3d 607, 615 (Mo. App. E.D. 2009).  However,

Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such case that a legal duty has been breached.  In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy . . . The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies.  They are not designed to be a basis for civil liability . . .  The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.

Rule 4, Scope ¶ 20. See also McRentals, Inc. v. Barber, 62 S.W.3d 684, 705 (Mo. App. W.D. 2001) (recognizing that disciplinary rules do not create private cause of action for client, but can offer guidance to courts). In short, the trial court was not required to apply Rule 4-1.5.¹²

CAP ON DAMAGES UNDER SOVEREIGN IMMUNITY STATUTE DOES NOT CONFLICT WITH FEDERAL REGULATIONS 

“Mary J. Moore (hereinafter, ‘Driver’) appeals the circuit court’s amended judgment reducing her personal injury award against Bi-State Development Agency d/b/a Metro (hereinafter, ‘Metro’) to comply with the statutory cap set forth for public entities afforded sovereign immunity pursuant to section 537.610, RSMo 2016.  Driver asserts section 537.610 conflicts with section 70.429’s adopted federal regulations because section 70.429 is a more specific statute enacted after section 537.610.”¹³

On April 19, 2013, Driver was driving her regularly scheduled school bus route, picking up children before school.  A Metro Call-A-Ride bus collided with Driver’s school bus.  Driver was injured and brought this personal injury suit against Metro.  Following a jury trial, the jury returned a verdict in Driver’s favor, awarding her $1.878 million in damages.  Metro filed a motion for remittitur, asserting the award should be reduced pursuant to section 537.610, which sets the liability for public entities.  The circuit court sustained Metro’s motion and entered an amended  judgment, which reduced Driver’s damage award to the statutory maximum amount allowed plus interest.¹⁴ 

Driver appealed and the judgment was affirmed in Moore v. Bi-State Development Agency.

“Driver claims section 537.610 conflicts with section 70.429 because section 70.429 adopted specific federal regulations that control the analysis.  Driver believes those federal regulations require Metro to satisfy all judgments of $5 million or less for injuries caused by negligent operation of its buses with a seating capacity of sixteen or more people.”¹⁵

Metro is considered a public entity for purposes of sovereign immunity, per § 537.600.3; see also State ex rel. Trimble v. Ryan, 745 S.W.2d 672, 674 (Mo. banc 1988). 

“Driver alleges she sustained injuries due to the negligent operation of a Metro bus.  Accordingly, Metro’s sovereign immunity is waived for purposes of her claim.” Section 537.610.¹⁶

When sovereign immunity is waived for a public entity, section 537.610.2 places a statutory cap on the amount of damages that may be awarded to an injured party.  Teeter v. Mo. Highway & Transp. Comm’n.  891 S.W.2d 817, 821 (Mo. banc 1995).  Liability in those instances “shall not exceed two million dollars for all claims arising out of a single accident or occurrence and shall not exceed three hundred thousand dollars for any one person in a single accident or occurrence, except for those claims governed by the provisions of the Missouri workers’ compensation law, chapter 287.”  Section 537.610.2¹⁷

“Section 70.429 provides, ‘All interstate and intrastate United States Department of Transportation safety rules and regulations shall apply to all operations of the bi-state development transit system.’”¹⁸

“The Federal Motor Carrier Safety Regulations describe the minimum levels of financial responsibility that must be ‘maintained by for-hire motor carriers of passengers operating motor vehicles in interstate… commerce.’”¹⁹  “The minimum limit for a ‘vehicle with a seating capacity of 16 passengers or more, including the driver’ is $5 million dollars.  49 C.F.R. § 387.33(a)(1).”²⁰

“Driver asserts the section 70.429 mandate to maintain financial insurance minimum requires Metro to pay any award up to the amount of the insurance limits.”²¹

Driver’s argument fails because it presupposes the statutes are actually in conflict, “which is a precondition to the application of the principles of statutory construction.”  State ex. Rel. City of Jennings v. Riley, 236 S.W.3d 630, 631 (Mo. banc 2007).  Section 537.610’s plain language limits the amount of recovery for a single claim.  Both section 537.610.1  and section 537.610.2 contain the limiting language that liability “shall not exceed three hundred thousand dollars for any one person in a single accident or occurrence.”²²

“The mere proposition that Metro must maintain a minimum level of financial responsibility as set forth by federal safety regulations does not conflict with the legislature’s per individual, per-occurrence statutory limitation of liability, nor does it implicitly overrule that limitation.”²³

“Accordingly, there is no conflict between section 537.610’s plain statutory language providing for a damages cap and section 70.439 providing Metro needs to comply with federal safety regulations to receive state funding.”²⁴ “Metro’s compliance with federal safety rules and regulations to purchase liability coverage in excess of the per-incident damages cap in section 537.610 does not squander its liability protection provided in section 537.610.2.”²⁵

SUBCONTRACTOR PROTECTED FROM PERSONAL INJURY CLAIM BY ACCEPTANCE DOCTRINE 

Plaintiff-appellant Joseph Zygler (“Appellant”) appeals the entry of summary judgment on his negligent claims for defendant-respondents Hawkins Construction & Flat Iron Contracting Co. (“Hawkins”) and Deluca Plumbing, Inc. (“Deluca”) (“Respondents”).  Respondents were subcontracted by general contractor K&S Associates to work on a new government building in Wildwood, Missouri.  Hawkins was hired to perform concrete work and Deluca was hired to perform plumbing work.²⁶

Summary judgment for the two subcontractors was affirmed in Zygler v. Hawkins Construction.²⁷

“In 2012, K&S constructed a government building for the City of Wildwood, Missouri.  K&S hired subcontractor Hawkins to perform concrete foundation and flatwork-related tasks on the project, Deluca to perform plumbing work, and St. Charles Acoustics to perform floor tiling.”²⁸

This case concerns a workplace injury.  On November 14, 2012, Appellant was doing floor tiling work on the project for St. Charles Acoustic.  Appellant was walking in an unlit hallway when his boot caught on a plumbing cleanout that protruded approximately ¾ -1 inch from the concrete floor.  Appellant tripped, injuring his ankle.   Deluca installed the rough plumbing including the cleanout.  Hawkins poured the concrete floor over the roughed in plumbing and around the cleanout.  The cleanout had no warning signs or markers around it.²⁹

“Respondents claim they finished work on the area where Appellant was injured several months before the injury.”³⁰  “Respondents argue K&S reviewed and accepted the quality and completeness of their work on the hallway several months before Appellant’s injury.”³¹

The acceptance doctrine is the principle that when a subcontractor completes work on a project or portion of a project and relinquishes control to the general contractor, the general contractor assumes responsibility for any defects in the work and “relieves the subcontractor of liability as to a third person.” Weber v. McBride & Son Contracting Co., 182 S.W.3d 643, 644 (Mo. App. E.D. 2005).  The purpose of the acceptance doctrine is to cut off subcontractor liability after they give up the right of control over their work and the general contractor holds work out as its own, including defects.  [Weber v. McBride & Son Contracting Co., 182 S.W.3d 643, 644 (Mo. App. E.D. 2005)] at 644-45 (citing Casey v. Hoover, 89 S.W. 330, 334 (1905)).  Under the acceptance doctrine, contractors are liable to third parties only if they had control or the right to control the premises at the time of the injury.  Coleman v. City of Kansas City Mo., 859 S.W.2d 141, 146 (Mo. App. W.D. 1993).³²

Acceptance of a subcontractor’s work can be proven by an overt act or by constructive or practical acceptance through the general contractor’s control or use of the property, Roskowske v. Iron Mountain Forge Corp., 897 S.W.2d 67, 71 (Mo. App. E.D. 1995).  Acceptance need not be made formally.  [Roskowske v. Iron Mountain Forge Corp., 897 S.W.2d 67, 71 (Mo. App. E.D. 1995)] (citing Gruhalla v. George Moeller Constriction Co., 391 S.W.2d 585, 597 (Mo. App. 1965)).  If a plaintiff claims work was not accepted, the plaintiff must prove lack of acceptance.  Wilson v. Dura-Seal and Stripe, Inc., 519 S.W.3d 479, 482 (Mo. App. E.D. 2017).³³

“Appellant’s contention that the acceptance doctrine does not apply to subcontractors in negligence cases is contradicted by more than a century of case law in Missouri.  Missouri courts have consistently applied the acceptance doctrine in negligent cases.  See, e.g. id. at 482-83; Weber, 182 S.W.3d 644-45 (2005); Singleton v. Charlebois Const. Co., 690 S.W.2d 845, 849 (1985); Gruhalla, 391 S.W.2d 585 (1965); and Casey, 89 S.W. 330.”³⁴

“When the acceptance doctrine applies, a general contractor is presumed to have inspected the property for defects, assumed responsibility for the property, and relived subcontractors of liability to third parties.  See Weber, 182 S.W.3d at 644.  Taking the facts in light most favorable to Appellant, even if Respondent created a dangerous condition, K&S’s inspection, payment, and control of the workspace is sufficient for the acceptance doctrine to apply.”³⁵

“The acceptance doctrine applies here because Appellant was injured after Respondents finished working on the hallway and were released from responsibility for that area six months before injury.  By the time Appellant was injured, Hawkins moved on to outside concrete work and Deluca moved on to unrelated ‘finish’ plumbing throughout the building.”³⁶ 

“The material facts surrounding Appellant’s injury are undisputed and the law is clear: Missouri’s acceptance doctrine insulates subcontractors from liability for their work after they relinquish control of a workspace to the general contractor and the general contractor approves the work.  Weber, 182 S.W.3d at 644.”³⁷

CORPORATION MAY NOT BE IMPEACHED BY EVIDENCE OF A PRIOR CONVICTION

“Eve Sherrer appeals a judgment in favor of Boston Scientific Corporation (BSC) and C.R. Bard Inc. after trial on her claims of negligence, product defect, and failure to warn related to their design and manufacture of polypropylene mesh slings that were surgically implanted in Sherrer.”³⁸

On appeal, Sherrer claims the circuit court erred in several rulings, including prohibiting her from presenting evidence of Bard’s prior convictions.³⁹ 

“The circuit court did not err in excluding evidence of Bard’s prior convictions because section 491.050, authorizing impeachment with prior criminal convictions, is inapplicable to corporations.”⁴⁰ 

The circuit court’s judgment in favor of BSC and Bard was affirmed in Sherrer v. Boston Scientific Corp.

“Sherrer had surgery at Truman Medical Center-Lakewood (‘TMC’), on October 28, 2010, for stress urinary incontinence.  Her surgeons […] were employed by University Physicians Associates (‘UPA’).”⁴¹ 

Sherrer filed a petition asserting medical negligence claims against TMC and UPA. She then filed an amended petition that restated, nearly verbatim, the allegations of her negligence claims against TMC and UPA and added six claims against BSC and Bard as manufacturers and designers of the polypropylene mesh slings, including claims for negligence, design and manufacturing defects, and failure to warn.  She settled her medical malpractice claims against TMC and UPA and dismissed her claims against them.⁴²

Sherrer’s claims against BSC and Bard were tried to a jury and the jury returned verdicts on these claims in favor of BSC and Bard.  Sherrer asserts the circuit court erred when it excluded evidence of Bard’s prior criminal convictions because the evidence was admissible to impeach Bard’s credibility as a matter of right pursuant to section 491.050.⁴³

“Sherrer claims the circuit court failed to recognize, under section 491.050, she had the absolute right to impeach Bard’s credibility with evidence of its prior federal convictions for 391 counts of conspiracy, mail fraud, false statement, and adulterated product/failure to file medical device reports.”⁴⁴

Section 491.050 provides in relevant part:

Any person who has been convicted of a crime is, notwithstanding, a competent witness; however, any prior criminal conviction may be proved to affect his credibility in a civil or criminal case . . . Such proof may be either by record or by his own cross-examination, upon which he must answer any questions relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.⁴⁵

“’When interpreting a statue, this Court is guided by the legislature’s intent as indicated by the statute’s plain language.’  Desai v. Seneca Specialty Ins. Co., 581 S.W.3d 596, 601 (Mo. banc 2019).”⁴⁶

To discern the legislature’s intent, the Court may “consider the problem that the statue was enacted to remedy.”  United Pharmacal Co. of Mo., Inc. v. Mo. Bd. of Pharmacy, 208 S.W. 3d 907, 912 (Mo. banc 2006).  When section 491.050 was first enacted, the legislature’s purpose was to remove a common law consequence of conviction.  Under the common law, all witnesses convicted of “infamous crimes” were incompetent to testify in Missouri.  See State v. Smith 28 S.W. 181, 182 (Mo. 1894).  In 1895, the legislature enacted a statute making a convicted individual competent to testify but allowed for the admission in evidence of any prior conviction to impeach the individual’s credibility.  Mo. Laws 1895 section 1, section 8944b, at 284.  There is nothing in the history of section 491.050 to indicate the legislature intended the 1895 law to affect a corporation, and no case has been found applying the statute to a corporation.⁴⁷

Because section 491.050 renders any convicted “person” a competent “witness” and corporations cannot be witnesses, interpreting “person” to include corporations would be plainly repugnant to the legislature’s intent and the context of section 491.050.  When a corporate representative testifies on a corporation’s behalf, the right to impeach provided by section 491.050 is the right to impeach the corporate representative’s credibility as a witness by evidence of the corporate representative’s prior convictions.  It is not the right to impeach the corporation’s credibility with evidence of the corporation’s prior convictions.⁴⁸

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, P.C.

2 Landwehr v. Hager, 2020 WL 4999682, ED 108362 (Aug. 25, 2020).

3 Id. at *1.

4 Id.

5 Id.

6 Id.

7 Id.

8 Id.

9 Id.

10 Id. at *3.

11 Id.

12 Id.

13 Moore v. Bi-State Development Agency, 2020 WL 5525874, SC 91869 (Sept. 15, 2020).

14 Id.

15 Id.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id.

21 Id.

22 Id.

23 Id.

24 Id.

25 Id.

26 Zygler v. Hawkins Construction, 609 S.W.3d 61 (Mo. App. E.D. 2020).

27 Id.

28 Id.

29 Id.

30 Id.

31 Id.

32 Id.

33 Id.

34 Id.

35 Id. 

36 Id.

37 Id.

38 Sherrer v. Boston Scientific Corp., 2020 WL 6041581, SC 97465 (Oct. 13, 2020).

39 Id.

40 Id.

41 Id.

42 Id.

43 Id.

44 Id.

45 Id.

46 Id.

47 Id.

48 Id.