The Flag, November - December 2022
Vol. 78, No. 6 / November - December 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.
COVID-19 PANDEMIC DID NOT MAKE PAYMENT OF NOTE IMPOSSIBLE
Premier Valet, LLC v. Premier Valet Services, LLC, 2022 WL 3204902 (Mo. App. 2022).
Premier Valet Services, LLC and Brian Canavan (collectively, “the defendants”) appealed the trial court’s summary judgment in favor of Premier Valet, LLC for breach of promissory note and guaranty. The Missouri Court of Appeals-Eastern District affirmed the trial court’s ruling in Premier Valet, LLC v. Premier Valet Services, LLC.2
The defendants signed a promissory note, agreeing to pay Premier Valet, LLC, $260,000. Canavan “simultaneously executed a note guaranty agreement … in which he individually guaranteed ‘full and prompt payment when due’ of the remaining balance on the Note.”3 As of the defendants’ last payment, the outstanding principal balance was $145,594.69. The COVID-19 pandemic struck the following month, resulting in numerous executive orders closing restaurants, bars, and clubs; limiting large gatherings of people; and ordering individuals to stay home for periods of time. Premier Valet, LLC filed its petition against the defendants for breach of contract on the promissory note and against Canavan for breach of contract on the guaranty agreement. The defendants “raised the affirmative defense of impossibility, arguing the COVID-19 pandemic made it impossible for them to continue operating their valet service business, which made it impossible to repay the Note.”4
The impossibility doctrine provides that “[i]f a party, by contract, is obligated to a performance that is possible to be performed, the party must make good unless performance is rendered impossible by an Act of God, the law, or the party.”5 The party asserting impossibility must demonstrate that “virtually every action possible to promote compliance with the contract has been performed.”6 The trial court rejected the defendants’ impossibility defense because “(1) Defendants’ obligation is to repay the Note, not run its business so that it can repay the Note, and (2) Defendants did not take ‘virtually every action within its powers to perform its duties under the contract.’”7 The Court of Appeals affirmed the trial court’s ruling, adding:
Defendants failed to demonstrate they took any action – must less virtually every action possible – to perform the terms of the Note. Defendants’ statement of additional material facts merely asserted that they could not operate their valet services business in a limited capacity, presumably because there were no events requiring valet services during the early days of the COVID-19 pandemic.8
The court added that the defendants failed to show that they took “virtually every action possible” to perform the terms of the promissory note,9 as well as “conflated performance” pursuant to repayment of a loan with running the valet business to repay the note. “The fact that it may have been impossible to operate a valet services business during the COVID-19 pandemic does not render it impossible to perform the terms of the Note,” the court stated.10
TRIAL COURT HAS BROAD DISCRETION ON VOIR DIRE QUESTIONS
Matter of R.H., 648 S.W.3d 914 (Mo. App. 2022).
R.H. appealed the trial court’s judgment following a jury trial committing him to the custody of the Missouri Department of Mental Health as a sexually-violent predator under §632.480. R.H claimed the trial court abused its discretion by excluding a question during voir dire about his capacity to change. The Missouri Court of Appeals-Eastern District found that the trial court’s exclusion was not prejudicial.11
U.S. citizens have a constitutional right to a fair trial before an impartial jury.12 Voir dire allows for the discovery of juror bias or prejudice to help select a fair and impartial jury.13 “The trial court is in the best position to determine whether the disclosure of facts on voir dire adequately protects the defendant’s right to an impartial jury while avoiding a prejudicial presentation of the evidence.”14 This means a trial court has broad discretion in determining the appropriateness of questions during voir dire.15
In this case, the trial court limited, but did not entirely preclude, questioning regarding R.H.’s capacity to change during voir dire, the Court of Appeals found.16 The trial court exercised its discretion “to determine the propriety of a voir dire question within the context of a particular case.”17 “Even if we were to find that the excluded voir-dire question was probative of a critical fact relevant to bias, the trial court’s ruling did not prejudice R.H. when viewing the voir dire in its entirety.”18 Thus, the Court of Appeals was “not persuaded that the trial court’s exclusion of one question about ‘turning over a new leaf’ prevented R.H. from sufficiently and adequately examining the prospective jurors on their biases regarding a sex offender’s capacity to change.”19
A BUSINESS HAS NO DUTY TO PROTECT AN INVITEE FROM UNFORSEEABLE CRIMINAL ACTS OF A THIRD PARTY
M.B. v. Live Nation Worldwide, 2022 WL 3204716 (Mo. App. E.D. 2022).
M.B. and A.R. attended a concert together at the Hollywood Casino Amphitheater, owned and operated by Live Nation Worldwide, Inc. M.B. became ill, and she felt extremely intoxicated. M.B. suspected she was given a date rape drug, either by A.R. or someone else.20 M.B. told A.R. that she felt sick and wanted to leave the concert early. A.R. left to get his truck from the parking lot to pick her up at the front gate. While A.R. was getting his truck, M.B. was treated at the medical tent. The first-aid log stated M.B. was overheated and had overconsumed alcohol. M.B. was treated with air conditioning, a cold towel, and water. The on-duty nurse determined M.B. was fit to leave the concert, and M.B. signed herself out on the first-aid log.21 After M.B. was released from the medical tent, A.R. drove them from the concert venue to M.B.'s apartment, where M.B. alleged A.R. raped her. M.B.’s friend later arrived at the apartment and believed M.B. was too impaired to have consented to sex. A.R. said the sex was consensual.22
M.B. filed suit in circuit court against Live Nation and Leslie Ramsey, Live Nation’s operations director (collectively, “the respondents”). M.B. alleged the respondents were liable for A.R.’s sexual assault at her apartment because the respondents “assumed a duty to prevent M.B. from leaving the concert with A.R. while she was under an extremely intoxicated and impaired state.”23 Live Nation stated the respondents did not have a duty to M.B. to prevent the alleged crime that occurred at her apartment. The circuit court granted summary judgment to the respondents, which the Missouri Court of Appeals-Eastern District affirmed.24
“In any action for negligence, a plaintiff must establish the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant’s breach proximately caused the plaintiff’s injury.”25 Missouri follows the “no duty” rule in that “a business has no duty to protect an invitee from criminal acts of third person.”26 This is because such criminal acts by third parties are “rarely foreseeable.”27 The Supreme Court of Missouri has recognized two exceptions to this rule though: the “special-relationship exception” and the “special-circumstance exception.”28 The special-relationship exception “involves a special relationship between the parties, where one party is entrusted to the protection of another and relies on that party for safety,”29 including innkeeper-guest, common carrier-passenger, school-student, and sometimes employer-employee.30 The second, special-circumstance exception, involves “foreseeability of crime based on past incidents to create a duty of care[.]”31 The exception applies “when a business knows or has reason to know the third person is harming or about to harm an invitee on the business’s premises.”32 “This exception focuses on prior similar incidents and whether the business has taken precautionary measures.”33
The Court of Appeals ruled M.B.’s case did not meet the special-relationship or special-circumstances exceptions.34 The Court of Appeals added:
Missouri jurisprudence has developed a clear framework to recognize two exceptions to general rule that a business has no duty to protect a plaintiff from a third party’s criminal acts. This well-established jurisprudence has subsequently been codified [under § 537 and 787]. We reject M.B’s invitation to extend the law and find that Respondents owed a legal duty to M.B. under the special-relationship exception given the facts of this case.35
SUMMONS WAS NOT SERVED AT DEFENDANT’S USUAL PLACE OF ABODE, VOIDING DEFAULT JUDGMENT FOR LACK OF PERSONAL JURISDICTION
M.F.S.D.-C.S.E. v. J.M., 651 S.W.3d 834 (Mo. App. 2022).
J.M. appealed the St. Louis Circuit Court Family Division’s judgment denying his motion to set aside a default paternity judgment. J.M. argued the default judgment was void for lack of personal jurisdiction because he was not properly served pursuant to Rule 54.13(b). The Missouri Court of Appeals-Eastern District agreed with J.M. and reversed both the family court’s denial of J.M.’s motion to set aside the default judgment and the 2016 default paternity judgment.36
“Proper service of process is a prerequisite for personal jurisdiction.”37 A court can obtain jurisdiction to adjudicate a party’s rights only by services of process authorized by statute or rule, and “[w]hen the requirements for manner of service are not met, a court lacks the power to adjudicate.”38 Under Rule 54.13(b), personal service can be met if (1) a copy of the summons and petition is personally delivered to the individual; (2) a copy of the summons and petition is left at the individual’s dwelling house or “usual place of abode” (their permanent or general – not temporary – residence) with some person of the individual’s family who’s over the age of 15; or (3) a copy of the summons and petition is delivered to an agent of the individual.
In this case, the process server left the summons and petition with someone claiming to be J.M.’s cousin at an address on Madison.39 However, J.M.’s “usual place of abode” on the date of service was an address on Ginger.40 “[L]eaving the summons and petition at the Madison address was not a proper method of service under Rule 54.13,” the Court of Appeals ruled.41 “Without proper service of process, the family court here did not acquire personal jurisdiction over J.M., making the default paternity judgment void.”42
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 2022 WL 3204902 (Mo. App. 2022).
3 Id. at 1.
5 Breitenfeld v. School Dist. of Clayton, 399 S.W.3d 816, 835 (Mo. banc 2013) (quoting Farmers’ Elec Co-op., Inc. v. Missouri Dep’t of Corr., 977 S.W.2d 266, 271 (Mo. banc 1998)).
7 Premier Valet, 2022 WL 3204902 at 1.
8 Id. at 2.
9 Id. at 3.
10 Id. at 2.
11 Matter of R.H., 648 S.W.3d 914 (Mo. App. 2022).
12 Mo. Const. art. I, Section 22(a).
13 State v. Walker, 448 S.W.3d 861, 867 (Mo. App. E.D. 2104) (citing State v. Clark, 981 S.W.2d 143, 146 (Mo. App. E.D. 2014).
14 Matter of D.N., 598 S.W.3d 108, 115 (Mo. banc 2020).
15 D.N., 598 S.W.3d at 115.
16 R.H., 648 S.W.3d (2022).
17 Wolfe v. State, S.W.3d 829, 832 (Mo. App. W.D. 2009) (citing Clark, 981 S.W.2d 146).
18 R.H., 648 S.W.3d at 918 (2022). See also D.N., 598 S.W.3d at 115-16.
20 M.B. v. Live Nation Worldwide, 2022 WL 3204716 (Mo. App. E.D. 2022).
23 Id. at 2.
25 Wieland v. Owner-Operator Servs., Inc., 540 S.W.3d 845, 848 (Mo. banc 2018).
26 Elkins v. Acad. I, LP, 633 S.W.3d 529, 537 (Mo. App. S.D. 2021).
27 Wieland, 540 S.W.3d at 848.
28 Strafford v. Drury Inns, Inc., 165 S.W.3d 494, 496 (Mo App. E.D. 2005).
29 Elkins, 633 S.W.3d at 537.
30 Keenan v. Miriam Found, 784 S.W.2d 298, 302 (Mo. App. E.D. 1990).
31 Strafford, 165 S.W.3d at 496.
32 Elkins, 633 S.W.3d at 537.
33 Live Nation Worldwide, 2022 WL 3204716 at 5 (citing Wieland, 540 S.W.3d at 849).
34 Id. at 6.
35 Id. at 7; See also Wieland, 540 S.W.3d at 849.
36 M.F.S.D.-C.S.E. v. J.M., 651 S.W.3d 834 (Mo. App. 2022).
37 A.R.J. v. C.M.L., 575 S.W.3d 738, 741 (Mo. App. E.D. 2019).
38 M.F.S.D.-C.S.E., 651 S.W.3d at 837 (citing Worley v. Worley, 19 S.W.3d 127, 129 (Mo. banc 2000)).
39 Id. at 838.
42 Id. See also Worley, 19 S.W.3d at 129.