Huch v. Charter Communications, Inc.[1]
Opinion handed down August 4, 2009
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that the voluntary payment doctrine was not available as a defense to the Missouri Merchandising Practices Act.[2] When a plaintiff pays money to a defendant due to the defendant’s violation of the Act, allowing the defendant to use this doctrine would circumvent the Act’s purpose of protecting consumers and “regulat[ing] the marketplace to the advantage of those traditionally thought to have unequal bargaining power as well as those who may fall victim to unfair business practices.”[3]

I. Facts & Holding

Defendant Charter Communications, Inc. provides television and communication services in Missouri. In their petition, plaintiffs and Charter customers James Huch and Ryan Carstens alleged that Charter mailed television channel guides to them and other Missouri customers and charged about three dollars a month for the guides, even though they were unsolicited.[4] Plaintiffs claimed that Charter neither gave them the ability to opt out of this service nor informed them that these charges would be added to their bills.[5] Plaintiffs sued Charter for monetary damages and a permanent injunction under Missouri Revised Statute Sections 407.025 and 407.200 of the Missouri Merchandising Practices Act[6] and moved to certify a class of Charter customers in the same situation.[7] Charter moved to dismiss, claiming the voluntary payment doctrine as an affirmative defense. The trial court sustained and dismissed the petition with prejudice.[8]

Upon granting transfer from the Missouri Court of Appeals, Eastern District, the Supreme Court of Missouri reversed and remanded the case to the trial court, ordering the court to overrule Charter’s motion to dismiss and allow plaintiffs’ case to proceed.[9] The court determined that, under Missouri administrative rules, “the act of charging for unsolicited merchandise is an unfair practice” as defined in the Act.[10] If Charter were found to have violated the act, the court reasoned that letting Charter assert the defense of voluntary payment doctrine would “nullify the protections of the act and be contrary to the intent of the legislature.”[11]

II. Legal Background

A. Missouri Merchandising Practices Act

Section 407.020 of the Missouri Merchandising Practices Act makes it unlawful to engage in “deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce . . . in or from the state of Missouri.”[12] The Act allows for criminal penalties, civil actions from private persons, and even class action lawsuits.[13] Because Section 407.020 does not define deceptive practices, courts must decide when a party failed to practice fair dealing. Furthermore, the defendant’s conduct, but not intent, is determinative for establishing a violation.[14]

The Act grants the attorney general the authority to establish “all rules necessary to the administration and enforcement” of this act.[15] Duly promulgated rules are treated as “hav[ing] independent power as law.”[16] One Missouri administrative rule makes it an unfair practice “‘for any seller in connection with the advertisement or sale of merchandise to bill, charge or attempt to collect payment from consumers, for any merchandise which the consumer has not ordered or solicited.’”[17] Because charging for unsolicited merchandise is treated as an unfair practice under the administrative rules, this conduct is illegal under the Missouri Merchandising Practices Act.[18]

B. Voluntary Payment Doctrine

The voluntary payment doctrine states that, unless there is fraud or duress, a person “with full knowledge of all the facts” who voluntarily pays money “cannot recover it back, though the payment is made without a sufficient consideration, and under protest.”[19] The doctrine can be used as a defense[20] against someone who mistakenly confers a benefit on the defendant to satisfy the defendant’s “‘honest’” claim.[21] The rationale behind the doctrine is that it would unfairly give a plaintiff the ability to sue at any time before the statute of limitations ran, making it difficult for a defendant to defend himself.[22]

In analyzing whether a defendant can raise the voluntary payment doctrine as a defense under the Missouri Merchandising Practices Act, the Supreme Court of Missouri noted that, in claims brought under the act, Missouri courts have refused to enforce a forum selection clause,[23] a mandatory arbitration provision,[24] and the affirmative defense of estoppel “where it would result in fraud.”[25] The rationale is that allowing certain contract provisions and defenses would defeat the purpose of the act: “Having enacted paternalistic legislation designed to protect those that could not otherwise protect themselves, the Missouri legislature would not want the protections of [the Act] to be waived by those deemed in need of protection.”[26] The Supreme Court of Missouri found that rationale to apply to Charter, stating, “To allow Charter to avoid liability for this unfair practice through the voluntary payment doctrine would nullify the protections of the act and be contrary to the intent of the legislature.”[27]

III. Commentary

This case involves a relatively straightforward analysis of the Missouri Merchandising Practices Act. The Supreme Court of Missouri properly followed the intent of the legislature by applying the law with the purpose of consumer protection in mind. Its decision puts large corporations in Missouri on notice that burying hidden services and fees in customers’ bills does not constitute fair dealing and cannot easily be waived by customers through the voluntary payment doctrine. Companies looking to increase profits, however, will still find ways to charge customers more without fully informing them of their options. This case suggests that only when consumers are vigilant and willing to challenge such unfair practices will companies truly learn to cease their deception.

-Kimberly E. Naguit

[1] 290 S.W.3d 721 (Mo. 2009) (en banc).
[2] Id. at 727.
[3] Id. at 725 (quoting High Life Sales Co. v. Brown-Forman Corp., 823 S.W.2d 493, 498 (Mo. 1992) (en banc).
[4] Id. at 722-23.
[5] Id.
[6] See generally Mo. Rev. Stat. §§ 407.010 – 407.1129 (2000 and Supp. 2006). Amendments made in 2008 are not relevant because they were made after the trial court ruled. See Huch, 290 S.W.3d at 722 n.2.
[7] Id. at 723.
[8] Id.
[9] Id. at 722.
[10] Id. at 725. See Mo. Code Regs. Ann. tit. 15, § 60-8.060(1); Mo. Rev. Stat. § 407.020.1.
[11] Id. at 727.
[12] Id. at 724 (citing Mo. Rev. Stat. § 407.020.1).
[13] Id. at 725 (citing § 407.025).
[14] Id. at 724 (quoting State ex rel. Webster v. Areaco Inv. Co., 756 S.W.2d 633, 635 (Mo. App. E.D. 1988)).
[15] Id. (quoting Mo. Rev. Stat. § 407.145).
[16] Id. at 725 (quoting see United Pharmacal Co. v. Mo. Bd. of Pharmacy, 159 S.W.3d 361, 365 (Mo. 2005) (en banc)).
[17] Id. (quoting Mo. Code Regs. Ann. tit. 15, § 60-8.060(1)).
[18] Id. (citing State ex rel. Nixon v. Telco Directory Pub., 863 S.W.2d 596, 601 (Mo. 1993) (en banc)).
[19] Am. Motorists Ins. Co. v. Shrock, 447 S.W.2d 809, 812 (Mo. App. 1969).
[20] Carpenter v. Countrywide Home Loans, Inc., 250 S.W.3d 697, 703 (Mo. 2008) (en banc).
[21] Huch, 290 S.W.3d at 726 (quoting Am. Motorists Ins. Co., 447 S.W.2d at 813).
[22] Id. (quoting Am. Motorists Ins. Co., 447 S.W.2d at 812)).
[23] Id. at 725 (citing High Life Sales Co. v. Brown-Forman Corp., 823 S.W.2d 493, 498 (Mo. 1992)).
[24] Id. at 726 (citing Whitney v. Alltel Comm’cns, Inc., 173 S.W.3d 300, 314 (Mo. App. W.D. 2005)).
[25] Id. (quoting Pointer v. Edward L. Kuhs Co., 678 S.W.2d 836, 844 (Mo. App. E.D. 1984)).
[26] Id. at 727 (quoting High Life Sales, 823 S.W.2d at 498 (citation omitted)).
[27] Id.

State of Missouri v. Robert M. Oliver
Opinion handed down August 4, 2009 [FN 1]
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that the trial court’s refusal to suppress evidence seized without a warrant was not clearly erroneous because of the inevitable discovery doctrine and that the subsequent warrant to search the items was not invalid because, regardless of any alleged impermissible evidence in the supporting affidavit, the affidavit was supported by sufficient independent probable cause. Further, the court found that there was sufficient evidence to support the convictions on counts of sexual exploitation of a minor and promoting child pornography.

I. Facts and Holding

On November 6, 2005, brothers K.K., eight years old, and C.M., five years old, communicated to their mother that, while at their friend’s home, they were photographed with their clothes off by their friend’s father, Robert M. Oliver. [FN 2] The mother of K.K. and C.M. reported the incident to the police who then investigated. [FN 3]

Detective Hill, two deputies, and an investigator with the Division of Family Services (DFS) went to Oliver’s residence where they explained to Oliver the allegations. [FN 3] Oliver claimed he had only taken pictures of the children’s bellies. [FN 4] The detective asked whether Oliver owned a digital camera, and Oliver responded that he did. [FN 5] The detective followed Oliver into his office and asked for Oliver’s consent to search the digital camera and computer tower he saw in the room. [FN 6] Oliver refused and insisted that the detective needed a search warrant. [FN 7] The detective called Detective Bailey, who then initiated the process to obtain a warrant for the items. [FN 8]

Meanwhile, DFS advised Oliver and his wife that they had three options: Oliver could leave the home, Oliver’s wife and children could leave the home, or the children could be taken into DFS custody. [FN 9] Oliver agreed to leave and departed the residence. [FN 10] After Oliver’s departure, Detective Hill acquired Oliver’s wife’s consent in writing to search the office and take the computer and digital camera. [FN 11] The officers and detective also took thirteen floppy disks and one CD-rewritable from a desk drawer opened by Oliver’s wife. [FN 12] Two weeks later, a search warrant application was filed to search the items seized and was granted. [FN 13]
Oliver was charged with sexual exploitation of a minor under section 573.023 and promoting child pornography in the first degree under section 573.025. Oliver filed a motion to suppress the evidence seized from his home, arguing a violation of his Fourth Amendment rights. [FN 14] The trial court overruled the motion at a preliminary hearing. [FN 15] A jury trial was held in which both children testified against the petitioner and photographs from the digital camera were admitted showing the children’s genitalia. [FN 16] Also, photos were submitted that showed the children doing things such as “bending over and using [their] hands to manually separate [their] buttocks.” [FN 17]

At trial, Oliver once again objected to the admission of this evidence, arguing it was inadmissible due to its seizure without a warrant and without consent and was once again overruled. [FN 18] Oliver was convicted of two counts of sexual exploitation of a minor and two counts of promoting child pornography in the first degree for possessing with the intent to exhibit the photos. [FN 19] Oliver was sentenced to two concurrent terms of fifteen years for sexual exploitation of a minor and ten years for promoting child pornography. [FN 20]

II. Legal Background

The court reviews a trial court’s ruling on motions to suppress the evidence in “a light most favorable to the ruling and defers to the trial court’s determination of credibility.” [FN 21] The decision will only be reversed if it was clearly erroneous, and the court will consider both evidence presented at the pre-trial hearing and any evidence presented at trial. [FN 22] Oliver challenged the trial court’s refusal to suppress the evidence on two grounds. [FN 23] First, Oliver argued that the items were inadmissible because they were seized in violation of his Fourth Amendment rights. [FN 24] Second, Oliver argued that the warrant was invalid. [FN 25] Finally, Oliver argued that the trial court erred in refusing to grant his motions for acquittal due to the State’s failure to provide sufficient evidence for a jury to find guilty beyond a reasonable doubt for the offenses of sexual exploitation of a minor and promoting child pornography in the first degree. [FN 26]

A. Fourth Amendment Violation

Oliver argued that the evidence obtained by the police and detectives were seized in violation of his Fourth Amendment right to be free from “unreasonable searches and seizures.” [FN 27] The Missouri Constitution, Article I, section 15 also provides the same guarantees against unreasonable searches and seizures, and the same analysis applies to cases under the Missouri Constitution as under the United States Constitution. [FN 28]

The court began by citing the general proposition that warrantless searches and seizures of the home are presumptively unreasonable without a warrant and evidence discovered as the result of a Fourth Amendment violation must generally be excluded. [FN 29]

Although the police and detective conducted the search and seizure based on Oliver’s wife’s consent, the court found it unnecessary to analyze whether the consent was valid because the evidence is admissible under the inevitable discovery doctrine. [FN 30] The inevitable discovery doctrine provides that evidence obtained from an unconstitutional search and seizure is nevertheless admissible if law enforcement would have ultimately or inevitably discovered the evidence. [FN 31] To show that evidence falls within the exception, the State must prove by a preponderance of the evidence “(1) that certain standard, proper and predictable procedures of the local police department would have been utilized and (2) those procedures inevitably would have led to discovery of the challenged evidence through the State’s pursuit of a substantial, alternative line of investigation at the time of the constitutional violation.” [FN 32]

The court found that the evidence supported a finding that the police would have discovered the evidence pursuant to a search warrant. [FN 33] The fact that the detective requested a search warrant prior to obtaining consent from Oliver’s wife is evidence that he would have followed the standard police procedure, and the detective also testified that he would not have left the Olivers’ residence without the computer and camera. [FN 34] Further, the detective’s warrant application was supported by sufficient probable cause at the time of application based on the child abuse report and Oliver’s admission to photographing the children with the camera. [FN 35] Because the evidence would have inevitably been discovered, the evidence was admissible, and the decision to admit the items by the trial court was not clearly erroneous. [FN 36]

B. Validity of the Search Warrant

Oliver argued that the affidavit to support the issuance of the warrant two weeks after seizure of the evidence admitted at trial contained evidence that was obtained from an illegal search and seizure and that, without this improper evidence, the warrant was not supported by probable cause. [FN 37] The court began with the proposition that the fact that improper evidence was used in support of a warrant does not itself invalidate the warrant unless, if setting aside all tainted allegations, the independent and lawful information stated in the affidavit fails to show probable cause. [FN 38] The court found that even without the alleged tainted evidence (primarily the make, model and serial number s on the hard drive and camera), the initial child abuse report and general information regarding the use of computers and child pornography were sufficient to establish probable cause to search the camera card, hard drive, and disks. [FN 39] As a result, the evidence was admissible, and the trial court’s determination to admit the evidence was not clearly erroneous. [FN 40]

C. Sufficiency of the Evidence

Oliver argued that the trial court erred in overruling his motions for judgment of acquittal due to the State’s failure to provide sufficient evidence for a jury to find guilty beyond a reasonable doubt for the offenses of sexual exploitation of a minor and promoting child pornography in the first degree. [FN 41] The court will give great deference to the trier of fact when reviewing the sufficiency of the evidence for a conviction and will only determine whether a reasonable juror might have found the defendant guilty beyond a reasonable doubt. [FN 42] Accordingly, the court accepts as true all evidence favorable to the State. [FN 43]

i. Sexual Exploitation of a Minor

Oliver argues that under section 573.023 merely depicting nude children does not depict “sexual conduct,” which is required under the statute. [FN 44] In support of this contention, Oliver argued that because another statute defining the offense of child abuse, section 568.060, already criminalizes this conduct, the legislature did not intend to criminalize the depiction of nude children under 573.023. [FN 45]

Sexual conduct is defined by section 556.061(29) as “acts of human masturbation; deviate sexual intercourse; sexual intercourse; or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act of apparent sexual simulation or gratification.” [FN 46] The court found that the two photographs of the boys bending over and spreading their buttocks with their hands depicts sexual conduct. [FN 47] The conduct is an act of apparent sexual simulation, especially when considered in the context in which they were taken. [FN 48] Further, the fact that the same conduct can be charged under two separate statutes is inconsequential because “the state may elect which statute to proceed under.” [FN 49]

Therefore, there was sufficient evidence for a reasonable juror to find Oliver guilty beyond a reasonable doubt of sexual exploitation of a minor. [FN 50]

ii. Intent to Exhibit

Oliver argued that there was insufficient evidence to support a finding that he intended to exhibit the photos of the children or the images downloaded from the internet containing child pornography. [FN 51] Section 573.025 says, “[a] person commits the crime of promoting child pornography in the first degree if, knowing of its content and character, such person possesses with the intent to promote or promotes obscene material that has a child as one of its participants or portrays what appears to be a child as a participant or observer of sexual conduct.” [FN 52] One of the ways section 573.010(12) defines “promote” is to “exhibit . . . by any means including a computer.” [FN 53] “Exhibit” is not defined in the statute, so the court considers the plain meaning derived from the dictionary. [FN 54] “Exhibit” is defined in the dictionary as ‘to present to view; show; display.’ [FN 55] The defendant’s intent is most often shown by the surrounding circumstances of the act and the act itself. [FN 56]

Oliver took photographs of the children and put them on his computer, and one of the children testified that he saw the photo once uploaded onto the computer. [FN 57] The fact that Oliver deleted the photos before the evidence was seized does not negate the fact that he possessed with the intent to exhibit the photos on or about November 3, 2005. [FN 58] There was sufficient evidence for a jury to find that Oliver possessed the images and intended to exhibit them, regardless of subsequent deletion. [FN 59]

Further, there was sufficient evidence to support a finding that Oliver intended to exhibit the internet pornography. [FN 60] The fact that evidence showed that Oliver had viewed the images multiple times combined with the testimony from the children that he had exhibited similar photos to them is sufficient evidence to support a finding of the requisite intent to exhibit the internet pornography as well. [FN 61]

III. Conclusion

The Supreme Court of Missouri in this case demonstrates the wide latitude it has granted law enforcement in searching and seizing items in private homes. The court avoided discussing the issue of whether Oliver’s wife’s consent after Oliver’s rejection of consent would have been a proper basis upon which to find the search and seizure sufficient under the standards of the Fourth Amendment. The court’s use of the inevitable discovery doctrine, though substantially supported in this case, bypasses important Fourth Amendment considerations. The Department of Family Services essentially gave Mr. Oliver an ultimatum requiring him to be separated from his children. In order to comply with this ultimatum and to avoid the DFS taking custody of his children, Oliver consented to leave his home. After Oliver left, the detective and officers obtained the consent of Oliver’s wife to the search. There is potential here for police and state abuse of power. Unfortunately, the court never considered these issues, and we are left waiting for another day when the question of the state’s ability to manufacture consent to a search of the home is addressed more fully by the court.

-Bradley S. Dixon

[FN 1] No. SC 89888, 2009 WL 2381280 (Mo. Aug. 4, 2009) (en banc).
[FN 2] Id. at 1.
[FN 3] Id. at 2.
[FN 4] Id.
[FN 5] Id
[FN 6] Id.
[FN 7] Id.
[FN 8] Id.
[FN 9] Id.
[FN 10] Id.
[FN 11] Id.
[FN 12] Id.
[FN 13] Id.
[FN 14] Id.
[FN 15] Id.
[FN 16] Id. at 3.
[FN 17] Id.
[FN 18] Id.
[FN 19] Id.
[FN 20] Id.
[FN 21] Id. (citing State v. Edwards, 116 S.W.3d 511, 530 (Mo. banc 2003)).
[FN 22] Id.
[FN 23] Id.
[FN 24] Id.
[FN 25] Id.
[FN 26] Id. at 5.
[FN 27] Id. at 3.
[FN 28] Id.
[FN 29] Id. at 4 (citing State v. Rutter, 93 S.W.3d 714, 723 (Mo. banc 2002); State v. Miller, 894 S.W.2d 649, 654 (Mo. banc 1995)).
[FN 30] Id.
[FN 31] Id. (citing Rutter, 93 S.W.3d at 726).
[FN 32] Id. (citing Nix v. Williams, 467 U.S. 431, 444 (1984)).
[FN 33] Id.
[FN 34] Id.
[FN 35] Id.
[FN 36] Id.
[FN 37] Id.
[FN 38] Id. (citing State v. Mahsman, 157 S.W.3d 245, 251 (Mo. App. 2004)).
[FN 39] Id. at 5.
[FN 40] Id.
[FN 41] Id.
[FN 42] Id. (citing State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998)).
[FN 43] Id.
[FN 44] Id.
[FN 45] Id.
[FN 46] Id. at 6 (citing Mo. Rev. Stat. § 556.061(29) (Supp. 2004)).
[FN 47] Id.
[FN 48] Id.
[FN 49] Id. (citing State v. Koen, 468 S.W.2d 625, 629 (Mo. 1971)).
[FN 50] Id.
[FN 51] Id.
[FN 52] Id.
[FN 53] Id. at 7.
[FN 54] Id. (citing State v. Eisenhouer, 40 S.W.3d 916, 920 (Mo. banc 2001)).
[FN 55] Id. (citing Webster’s Third International Dictionary 796 (1993)).
[FN 56] Id. (citing State v. McIntyre, 63 S.W.3d 312, 315 (Mo. App. 2001)).
[FN 57] Id.
[FN 58] Id.
[FN 59] Id.
[FN 60] Id.
[FN 61] Id.

State ex rel. Ashby Road Partners, LLC v. State Tax Commission[1]
Opinion handed down August 4, 2009.
Link to Mo. Sup. Ct. Opinion

I. Introduction

The Supreme Court of Missouri held that the State Tax Commission of Missouri could require a complaining taxpayer to provide evidence of the true market value of the properties in dispute, that the tax commission is not bound to accept the true market value originally calculated by the assessor, and that, while the assessor cannot advocate for a higher assessed value than the one he determined for the relevant assessment period, he is free to put forth evidence of higher true market value in defense of a discrimination claim.

II. Facts and Holding

A group of commercial property owners alleged that the St. Louis County assessor had discriminated against them by assessing their properties at a higher percentage of true value than other similar commercial property in the area.[2] Each complaining property owner asserted that its own property was accurately assessed at the statutorily mandated thirty-two percent of true market value while other similarly situated commercial properties were assessed at a lesser percentage of true market value.[3] On review by the state tax commission, a hearing officer assigned to the property owners' case ordered them to select a lead case to determine market value and the assessment ratio.[4] The property owners objected to this order, arguing that it was unnecessary for them to prove the market value of their own properties when they did not dispute the values determined by the assessor.[7] The property owners feared that the assessor would use their market value evidence to advocate a higher value for their properties and argued that Missouri Revised Statute Section 138.060 prevents an assessor from advocating for a higher valuation than the value originally set for that assessment period.[8]
The commission rejected the property owners' claims and held that they were required to prove the true market values of their properties in order to make a successful discrimination claim.[9] The property owners then sought a writ of prohibition from the circuit court to prevent them from having to prove the true market value of their properties.[10] The circuit court denied the property owners’ petition.[11] The Supreme Court of Missouri affirmed the circuit court’s judgment and held that the tax commission could require the taxpayers to provide evidence of the true market value of the properties, that the tax commission is not bound to accept the true market value calculation by the assessor, and that, while the assessor cannot advocate for a higher assessed value than the one he determined for the relevant assessment period, he is free to provide evidence of higher true market value in defense of a discrimination claim.[12]

III. Legal Background

The Missouri Constitution requires uniform taxation on real property of the same class or subclass.[13] In order to calculate the tax due on a parcel of property, the assessor must first determine the true market value of the parcel.[14] Once the true market value is established, the assessor then multiples that value by the statutory assessment percentage rate.[15] The resulting product is called the “assessed value.”[16] Finally, the assessed value is multiplied by the applicable tax percentage rate to calculate the tax due.[17]

Tax assessors are presumed to act in good faith, and their assessments are entitled to a rebuttable presumption of validity.[18] Thus, the taxpayer has the burden of proving discrimination.[19] When claiming discrimination by undervaluation of other property, the taxpayer must show “intentional systematic undervaluation by state officials of other taxable property in the same class.”[20] To do this, the complaining taxpayer must establish the true market value of his own property and other comparable properties.[21] The ratio of assessed value to true market value is then compared between the complaining taxpayer’s property and other comparable properties.[22] While the tax commission cannot compel the taxpayer to present evidence in any particular form,[23] the tax commission is not required to accept the assessor’s determination of the true market value of the property in dispute.[24]
Section 138.060.1 prohibits an assessor from advocating “a valuation higher than that value finally determined by the assessor . . . for that assessment period” in any hearing of an appeal from a first-class charter county.[25] While this language prohibits the assessor from arguing for a higher assessed value than what he ultimately determined for the relevant assessment period, it does not bar him from introducing proof of a higher true market value in defense of a discrimination claim.[26] Instead, the purpose of the language is to “prevent[] an assessor from putting a taxpayer at risk of being penalized with a higher assessment for challenging an assessor’s prior determination of the value of the taxpayer’s property."[27] The statute does not limit what relevant evidence the tax commission can request in investigating a discriminatory assessment claim.[28] In fact, Section 138.430 specifically authorizes the tax commission to “inquire of the owner of the property or of any other party to the appeal regarding any matter or issue relevant to the valuation, subclassification or assessment of the property.”[29] Because the tax commission is free to accept or reject the assessor’s prior determination of true market value, the taxpayer risks losing his discrimination claim if he uses the assessor’s valuation as his only evidence of true market value.[30]

IV. Commentary

With the Supreme Court of Missouri’s decision in Ashby Road, it is clear that the tax commission is not required to accept the true market value calculated by the assessor for the relevant taxing period and that the assessor is free to advocate for a higher true market value in defense of a discrimination claim. As a result, a complaining taxpayer should not expect to win his discrimination case by relying solely on the true market property values determined by the assessor.

-Chad E Voss

[1] 2009 WL 2381329, at *1 (Mo. Aug. 4, 2009).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at *4.
[12] Id. at *4-6.
[13] Mo. Const. art. X sec. 3.
[14] Mo. Rev. Stat. § 137.115 (2000).
[15] Ashby Road 2009 WL 2381329, at *4 n.6.
[16] Id. at *4.
[17] Id. at *4 n.6.
[18] Koplar v. State Tax Commission, 321 S.W.2d 686, 693 (Mo. 1959).
[19] Ashby Road, 2009 WL 2381329, at *6.
[20] Id. at *4
[21] Id.
[22] Id.
[23] Id. at *6.
[24] Id. at *4.
[25] Mo. Rev. Stat. § 138.060.1.
[26] Ashby Road, 2009 WL 2381329, at *6.
[27] Id.
[28] Id. at *5.
[29] Mo. Rev. Stat. § 138.430.2.
[30] Ashby Road, 2009 WL 2381329, at *6.

Weigand v. Edwards
Opinion handed down August 4, 2009[1]
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that a father who owed more than $10,000 in child support had to post a bond for the owed amount before he could petition the courts for modification of child custody. The court found that the statute requiring a bond in the full amount owed does not violate the due process or equal protection clauses of the United States or Missouri Constitutions under a balancing of interests test. Likewise, the court found that the statute is not an unreasonable or arbitrary barrier in violation of the open courts provision of the Missouri Constitution. The court affirmed the lower court’s dismissal of Edward’s petition.

I. Facts and Holding

Mr. Edwards and Ms. Weigand divorced three years after the birth of their child.[2] Although he failed to show up at the custody hearing, Edwards was awarded visitation and temporary custody, while Weigand was granted primary physical and legal custody of the child.[3] Edwards was also directed to pay $455.70 in monthly child support, but by 2000 he was in arrearage, and the state initiated an enforcement action.[4] In 2003, Weigand filed a motion to modify and was awarded sole custody. [5] Edwards again failed to appear at the subsequent hearing, and he lost all custody and visitation rights.[6] The following year, Edwards filed a motion to modify custody, in which he asked that his custody and visitation be restored to that of the original 1998 decree.[7] However, Weigand filed a motion to dismiss, claiming that under Missouri Revised Statute Section 452.455.4 Edwards was first required to post a bond before seeking to modify a custody decree in the amount of his child support arrearage if that amount exceeded $10,000.[8] At the hearing on the motion to dismiss, Edwards admitted that he owed more than $10,000 but claimed that Section 454.455.4 was unconstitutional.[9] The trial court rejected his argument, and Weigand’s motion to dismiss was granted.[10]
On appeal to the Supreme Court of Missouri, Edwards argued that Section 452.455.4 was unconstitutional because it violated his fundamental right to a relationship with his child under the due process and equal protection clauses of the United States and Missouri Constitutions and should be examined using a strict scrutiny test.[11] The court noted that, although the right of a parent to have a meaningful relationship with his or her child is a fundamental right[12], unlike other fundamental rights parental custody is not subject to a strict scrutiny standard and is judged according to a balancing of interests standard.[13] In its analysis, the court stated that the intention behind the statute was to protect the interest of a custodial parent who has shouldered a disproportionate financial burden.[14] Although both parents have an interest in custody and visitation, a custodial parent has an additional interest in maintaining custody.[15] When not receiving significant child support payments, such a parent would have diminished resources to hire an attorney to defend a motion for modification, while the parent in arrears has spent the owed money on hiring an attorney to file the motion.[16] Additionally, the state has an interest in protecting the child and encouraging the payment of child support.[17] The court stated that there was a reasonable balancing of the interests and that the statute was constitutional.[18]

Edwards also asserted that Section 452.455.4 violated the open courts provision of Missouri’s constitution.[19] The court rejected this claim and stated that responsibility lies with the parent in arrears and that protecting the interests of the custodial parent by requiring a bond is neither arbitrary nor unreasonable.[20] The court affirmed the trial court’s judgment.[21]

II. Legal Background

A. Due Process and Equal Protection

Parents have a fundamental right to associate with their children.[22] The challenged section of Missouri Revised Statute 452.455 was added in 2004[23] and states that a non-custodial parent who owes more than $10,000 in past due child support who seeks modification of a custody decree must post a bond in the amount of child support owed or reasonable legal fees, whichever is greater.[24] Section 452.455.4 also states that, once a bond is posted, the court shall hold the bond in escrow until the modification proceedings have finished.[25] Edwards argued that this bond requirement infringed upon his fundamental right to associate with his child.
This fundamental right has been recognized by the Supreme Court of the United States, which has acknowledged that a parent has a fundamental right to make decisions about what is best for his or her child, including decisions about who may visit the child.[26] Although a statute allowing any person to petition for visitation rights at any time was found unconstitutional as applied, the Court has declined to say that all similar statutes are per se unconstitutional.[27] Additionally, although fundamental rights are generally accorded strict scrutiny by courts, the Court has rejected that standard and has said that “heightened protection” is appropriate for certain fundamental rights.[28]

In 2009[29], The Supreme Court of Missouri analyzed a statute similar to Section 452.455.4 that precluded courts from granting custody to a parent who had been found guilty of sexual crimes in which a child was the victim.[30] In that case, a parent argued that the statute impermissibly prevented him from exercising his fundamental right to associate with his children.[31] The Missouri court relied on Supreme Court precedent for the proposition that mere heightened protection and not strict scrutiny was the appropriate standard.[32] The court stated that it must weigh the interest of the parent against the state’s interest in protecting the child from harm while considering various factors.[33] These factors include the private interests involved, the risks of erroneous deprivation of interests, and the financial and administrative burden placed on the government.[34] The court ultimately determined that the statute did not unconstitutionally prevent the felon parent from having a relationship with his children because, when balancing the interests involved, the statute was a reasonable way to protect the child and because he was allowed to have limited supervised visits.[35] Missouri’s highest court has also stated that, when parental rights are implicated, a case-by-case approach is best when balancing interests.[36]

In the instant decision, Edwards argued that Section 452.455.4 violated his due process rights to associate with his children and that the statute was intended only as a way to promote the state’s collection of child support.[37] Edwards believed that, because a fundamental right was involved, the court should have used a strict scrutiny standard when analyzing the statute.[38] Edward’s case is distinguishable from previous cases because, unlike those cases, where only one party was a parent, both parties, each with fundamental rights, were parents of the child.[39] However, consistent with the above precedents, the court refused to apply strict scrutiny and instead used the heightened protection standard.[40] The court also stated that balancing of interests was especially appropriate because both parties were parents with fundamental rights.[41] When balancing the interests, the court determined that, while the interest of Edwards was to regain some visitation or custody, the purpose of the statute was to protect the interest of Weigand, since she is owed child support and would therefore have difficulty hiring an attorney to defend Edwards’s motion to modify.[42] The court also said that, since Edwards was already denied custody once, there is a strong interest for Weigand, the child, and the state to ensure that an attorney is able to adequately defend Edward’s motion to modify.[43]

B. Open Courts

The Missouri Constitution states that the courts shall be open to every person.[44] In order to show a violation of the open courts provision the party must show that they have a recognized cause of action, that the cause of action is being restricted, and that the restriction is arbitrary or unreasonable.[45] The Edwards court determined that, although Section 452.455.4 is a restriction, it is a reasonable restriction to protect the parent who is owed child support, the state, and the child.[46] Furthermore, unlike prior cases that did violate the open courts provision[47], any restriction is within the control of the non-custodial parent, who can simply post the bond, move to modify child support payments, or defend a motion to modify custody to alleviate the restriction.[48]

III. Comment

While the instant decision continues along the same path as prior precedents, the mystery of what actually constitutes heightened protection persists. What exactly is heightened protection? What heightened protection did Edwards receive? Until the Supreme Court of the United States provides more guidance, heightened protection may be indistinguishable from reasonable basis as applied. Admittedly, the instant case is especially difficult, since both parties were entitled to heightened protection and any advantage of one would be effectively “cancelled out” by the other.

As a practical matter, the $10,000 threshold poses its own problems. The prospects for modification by a parent who is so far in arrears seem slim. In an area of law dominated by “the best interest of the child,” it is questionable whether a child benefits from having no contact with one parent whose circumstances have changed since the existing custody or visitation decree.
Finally, according to the statute’s own terms, a person owing $10,001 would only have to come up with one dollar to get around the statute. The statute only applies to those who owe in excess of $10,000; once one owes less than that, one may file a motion to modify. Because the statute does not create an incentive to pay the full amount owed, it arguably does not serve the legislative purpose as stated by the court, in that there is no guarantee or even likelihood that there will be a payment sufficient to offset the cost of the custodial parent’s legal fees. Such is the dilemma inherent in any statute that sets a minimum threshold.

-Neil D. Fossum

[1] Weigand v. Edwards, No. SC 89159, 2009 WL 2381337, at *1 (Mo. Aug. 4, 2009) (en banc).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] See Troxel v. Granville, 530 U.S. 57, 66 (2000).
[13] Weigand, No. SC 89159, 2009 WL 2381337, at *3.
[14] Id. at *4-5.
[15] Id. at *4.
[16] Id. at *5.
[17] Id at *5-6.
[18] Id. at *7.
[19] Id.
[20] Id. at *8.
[21] Id. at *9.
[22] Troxel v. Glanville, 530 U.S. 57, 66 (2000).
[23] Mo. Rev. Stat. § 452.455.4 (Supp. 2004).
[24] Id.
[25] Id.
[26] Troxel, 530 U.S. at 66.
[27] Id. at 73.
[28] Id. at 65.
[29] Cannon v. Cannon, 280 S.W.3d 79 (Mo. 2009).
[30] Id.
[31] Id. at 85-86.
[32] Id. at 86. Ironically, the court cites Justice Thomas’s concurrence which actually advocated the use of a strict scrutiny test. Troxel v. Glanville, 530 U.S. 57, 80 (2000).
[33] Cannon, 280 U.S. at 86.
[34] Id.
[35] Id. at 88.
[36] Blakeley v. Blakely, 83 S.W.3d 537, 546 (Mo. 2002).
[37] Weigand v. Edwards, No. SC 89159, 2009 WL 2381337, at *4 (Mo. Aug. 4, 2009) (en banc).
[38] Id. at *3.
[39] Id. at *4-5.
[40] Id.
[41] Id. at *4.
[42] Id. at *4-5.
[43] Id. at *7.
[44] Mo. Const. art. I § 14.
[45] See Snodgrass v. Martin & Bayley, Inc., 204 S.W.3d 638, 640 (Mo. 2006) (en banc).
[46] Weigand v. Edwards, No. SC 89159, 2009 WL 2381337, at *8. (Mo. Aug. 4, 2009) (en banc).
[47] See Kilmer v. Mun, 17 S.W.3d 545 (Mo. 2000) (en banc).
[48] Weigand, No. SC 89159, 2009 WL 2381337, at *8.

Jones v. Mid-Century Insurance
Opinion handed down June 30, 2009[1]
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri addressed whether a particular car insurance policy reduced the amount an insured motorist could recover from an accident with an underinsured individual. The court looked at whether this amount was reduced by deducting the amount the insured motorist received from the underinsured individual from the coverage limit of the insurance policy or by deducting the amount received from the motorist’s total damages and then applying the policy’s coverage limit. The Supreme Court of Missouri determined that the particular insurance contract deducted the amount received from the motorist’s total damages and then applied the policy’s coverage limit. The reasoning behind the court’s holding is not clear because, while the court appears to rely on the proposition that inconsistencies in an insurance contract are resolved in favor of the insured, the court asserts that the contract can be interpreted in a manner that gives meaning to all subsections of the contract.

I. Facts and Holding

On December 7, 2004, Morris Jones and Pamela Brown were in a 2001 Dodge Ram pickup truck when they were struck by another vehicle.[2] Both Mr. Jones and Ms. Brown suffered damages in excess of $150,000 as a result of the accident.[3] The driver of the other vehicle, Sarah McGee, did not have an insurance policy that covered the totality of Mr. Jones and Ms. Brown’s damages.[4] Ms. McGee’s insurance policy had a liability limit of only $50,000 per person and $100,000 per accident.[5] In other words, Ms. McGee was underinsured. Ms. McGee’s insurance company compensated both Mr. Jones and Ms. Brown $50,000 each for damages they sustained as a result of the accident.[6]

In addition to the compensation from Ms. McGee, Mr. Jones and Ms. Brown were insured under a separate insurance policy from Mid-Century Insurance that provided coverage for damages sustained in an accident with an underinsured driver.[7] The Mid-Century Insurance policy provided coverage up to $100,000 per person and $300,000 per occurrence.[8] Mid-Century Insurance refused to compensate Mr. Jones and Ms. Brown up to the $100,000 per person limit. [9] Mid-Century Insurance claimed that under the insurance policy the amount received from the underinsured driver, Ms. McGee, was to be deducted from the coverage limit of the policy.[10] As such, Mid-Century Insurance only compensated Mr. Jones and Ms. Brown $50,000 each.[11]

Mr. Jones and Ms. Brown disagreed with the insurance company’s interpretation of the policy and filed suit for compensation up to the limit of the policy-an additional $50,000 from the insurance company.[12] The trial court held that, because the insurance contract unambiguously reduced the amount of coverage under the policy by deducting from the policy limit the amount received from the underinsured, Mid-Century Insurance only owed the amount it had already paid-$50,000.[13] Following a decision by the Missouri Court of Appeals for the Southern District, the Supreme Court of Missouri took the case on appeal.[14]

II. Legal Background

The Supreme Court of Missouri determined that Mr. Jones and Ms. Brown were entitled to an additional $50,000 from Mid-Century Insurance because the particular insurance contract deducted the amount received from the motorist’s total damages and then applied the policy’s coverage limit.[15] As interpretation of an insurance contract is an issue of law, the court reviewed the issue de novo.[16]

The key provisions of the insurance contract in dispute were as follows:

Limit of Liability

a. Our liability under the underinsured Motorist Coverage cannot exceed the limits of underinsured Motorist Coverage stated in the policy, and the most we will pay will be the lesser of:

1. The difference between the amount of an insured person's damages for bodily injury, and the amount paid to that insured person by or for any person or organization who is or may be held legally liable for the bodily injury; or

2. The limits of liability of this coverage

b. Subject to subsections a. and c.-h. in this Limits of Liability section, we will pay up to the limits of liability shown in the schedule below as shown in the Declarations.

Coverage Designation Limits (each person / each occurrence)
U9 100/300

…

f. The amount of underinsured Motorist Coverage we will pay shall be reduced by any amount paid or payable to or for an insured person;

i. by or for any person or organization who is or may held legally liable for the bodily injury to an insured person; or

ii. for bodily injury under the liability coverage of this policy.... [17]

The Missouri Supreme Court relying upon Seeck v. Geico General Ins. Co.[18] and Lutsky v. Blue Cross Hospital Services [19] first reasoned that because the contract was ambiguous it should be interpreted in favor of the insured, Mr. Jones and Ms. Brown.[20] The court presented the issue of ambiguity as “[t]he determinative issue on appeal.”[21] The court reasoned that if one assumes Mid-Century Insurance’s interpretation of (f)-that the amount received is to be deducted from the policy’s coverage limit- the contract is ambiguous because such an interpretation conflicts with the provisions of (a) and the (b).[22] Mid-Century Insurance’s interpretation of (f) conflicts with (a) of the insurance contract because the express language of (a) means that “‘the most [Mid-Century] will pay’ is the lesser of $100,000 per person policy limit or the difference between the damages and the payments already made.”[23] Section (a) would only comport with Mid-Century Insurance’s interpretation of (f) if (a)(2) is read as “[t]he limits of liability of this coverage minus the amount already paid to that insured person.”[24] Mid-Century Insurance’s interpretation of (f) conflicts with (b) of the insurance contract because (b) would be non-effectual.[25] The court reasoned that:

“This is so because Mid-Century never would be called on to pay its total limit of liability shown on the schedule if it were entitled to deduct any amounts received from the tortfeasor, for in the case of underinsured motorist coverage, some amount always will have been received from the tortfeasor–that is why the insured is seeking to collect underinsured rather than uninsured motorist coverage.”[26]

As such, given the inconsistent provisions, the court determined that the insurance contract was ambiguous and should be interpreted in favor of the insured, Mr. Jones and Ms. Brown.[27]
Despite the court making this decision on “[t]he determinative issue on appeal,” the court went further and reasoned that Mid-Century Insurance’s interpretation of (f) was incorrect given that there is a contractual interpretation that gives meaning to all sub-sections of the insurance contract.[28] “[S]ubsection (f) means that, in determining the total damages to which the uninsured motorist coverage will be applied, the amount of money already received from the tortfeasor must be deducted. In this way, it avoids a double recovery.”[29]

III. Commentary

The Missouri Supreme Court is not clear in the reasoning behind its holding. Either the insurance contract is ambiguous and should be interpreted in favor of the insured, or the contract is not ambiguous and should be interpreted according to is terms. The court appears to rest its decision on “[t]he determinative issue on appeal,” ambiguity.[30] However, the court then determines that the ambiguity present in the contract is merely hypothetical. If the issue of ambiguity is merely hypothetical, it would not seem to be the determinative issue on appeal. As such, the court’s holding in this case appears to rest on the reasoning that the contract is not ambiguous and that the terms of the contract provide that the amount received from the other source should be deducted from the motorist’s total damages. After that deduction, the policy’s coverage limit should then be applied. Why then does the court stress the issue of ambiguity? The most likely answer to why the issue was stressed was to emphasize to insurers that their contracts with consumers are contracts of adhesion and that the court does not look favorably upon insurers’ manipulation of their superior bargaining position.

-Sean Alan Smith

[1] Jones v. Mid-Century Insurance, 287 S.W.3d 687 (Mo. 2009) (en banc).
[2] Id. at 689.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 689-90.
[13] Id. at 690.
[14] Id.
[15] Id. at 692-93.
[16] Id. at 690.
[17] Id.
[18] 212 S.W.3d 129 (Mo. 2007).
[19] 695 S.W.2d 870 (Mo. 1985)
[20] Id. at 690-92.
[21] Id. at 690.
[22] Id. at 690-92.
[23] Id. at 690-91.
[24] Id. at 691.
[25] Id. at 692.
[26] Id.
[27] Id.
[28] Id. at 693.
[29] Id.
[30] Id. at 690.

Miller v. Missouri Highway and Transportation Commission[1]
Opinion handed down June 30, 2009
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that a worker's injury, suffered while at work but not caused by the work itself, did not arise out of his employment and therefore did not entitle him to workers' compensation benefits.

I. Facts and Holding

The case was submitted on undisputed facts.[2] An employee of the Missouri Highway and Transportation Commission ("MHTC"), Mitchell Miller ("Miller") was working on a road repair project in Pike County.[3] While "walking briskly" to a truck for materials, Miller felt a "popping" sensation in his knee.[4] He then felt pain in the knee, which turned out to be caused by "an impinging medial shelf plica."[5] Miller admitted that he did not need to walk particularly fast to accomplish his work; that he walked briskly outside of work as well; that his clothing, the road surface, and the particular job task were not unusual that day and did not cause any unusual movement; and that he sustained no other injuries aside from the "pop."[6]
Miller reported the injury to and requested workers' compensation from the MHTC but was denied compensation on the grounds that the injury did not arise out of his employment.[7] After a hearing, the Administrative Law Judge (ALJ) denied Miller's claim, finding that Miller had not met his burden to prove that he had a compensable injury that resulted from a work-related accident arising out of and in the course of his employment.[8] The Labor and Industrial Relations Commission adopted the ALJ's opinion, and Miller appealed.[9] The Missouri Court of Appeals, Eastern District, ordered transfer to the Supreme Court of Missouri.[10]

The Supreme Court of Missouri noted that amendments to Missouri's workers' compensation law in 2005 had dramatically curtailed the scope of compensable injuries.[11] Because "[t]he uncontested facts show that the injury . . . did not arise out of employment," Miller could not claim his injury was compensable under the new statute.[12] Miller's appeal relied on pre-2005 case law for the proposition that recovery was allowed in situations where "work was a substantial factor in causing the injury."[13] The court found that Miller's argument would prevail if the case law he cited was still valid.[14] However, because the 2005 amendments specifically abrogated the case cited by Miller, the Supreme Court of Missouri denied his claim for relief.[15] In dissent, Judge Teitelman disagreed with the majority, arguing that Miller's injury was specific to his job duties as a highway construction supervisor.[16]

II. Legal Background

A. The 2005 Amendments to Missouri's Workers' Compensation Law

In 2005, Missouri amended its workers' compensation laws to restrict the types of injuries that were compensable by the state.[17] Specifically, the state narrowed the definition of "accident," no longer compensating injuries that solely because they were "clearly work related."[18] The state further amended the definition of "injury" to compensate only those injuries for which work was a "prevailing factor,"[19] rather than only a "substantial factor."[20] Injuries no longer are compensable if they came "from a hazard or risk unrelated to the employment to which workers would have equally been exposed outside of . . . the employment."[21]

In addition to these definitional changes, Missouri's workers' compensation laws were also given interpretive changes. Prior to the 2005 amendments, the statute required that ALJs, the Labor and Industrial Relations Commission, and judges construe the workers' compensation laws liberally and in favor of the injured worker.[22] The 2005 amendments changed Section 287.800, requiring all agencies and judges to construe the provisions strictly "without giving the benefit of the doubt to any party."[23] In addition, the legislature specifically voided past judicial cases interpreting the law: "[I]t is the intent of the legislature to reject and abrogate earlier case law interpretations" of several important definitions, including several named cases.[24]

B. Miller's Claim Falls Short

Prior to the 2005 amendments, Miller's claim would have almost certainly been successful. In Bennett v. Columbia Health Care,[25] a case Miller cited, the plaintiff felt her knee "pop" as she “walked" at work, much like Miller did.[26] The Missouri Court of Appeals found that the injury, caused only by walking, arose out of the plaintiff's employment.[27] Discussing Miller's case, the Supreme Court of Missouri noted that, under Bennett, "Mr. Miller would be entitled to compensation."[28] However, Bennett was one of the three cases abrogated by name in the 2005 amendments to Section 287.020.10: "[I]t is the intent of the legislature to reject and abrogate . . . holdings in: Bennett v. Columbia Health Care . . . , [two additional cases], and all cases citing, interpreting, applying, or following those cases."[29] Since Miller brought no other challenges to the 2005 amendments,[30] six of seven judges of the Supreme Court of Missouri found that the unambiguous meaning of the statutes precluded Miller's claim, as nothing about Miller's injury was brought on by his employment.[31]

In dissent, Judge Teitelman argued that Miller was not "equally exposed" to injury from walking at home, as Miller's "brisk" walking was far more likely to cause injury "while working on highways" than during "a recreational walk around the neighborhood."[32]

III. Comment

Although a cut-and-dry case of statutory interpretation, Mitchell Miller's case is an illustrative example of the impact of Missouri's 2005 amendments to its workers' compensation scheme. Whereas Miller would have likely collected benefits under the old definitions, new definitions and rules of interpretation mean injuries like Miller's are no longer compensable. Whether the changes are good policy is not addressed by this article (or case). Regardless, Miller's case is a notable example of the ability of the legislature to re-craft policy in one fell swoop.

- Cole David Bradbury

[1] No. 89960, 287 S.W.3d 671 (Mo. 2009) (en banc).
[2] Id. at 671-72
[3] Id.
[4] Id.
[5] Id. at 672.
[6] Id. See also Miller v. Mo. Highway and Transp. Comm'n, No. ED 91671, 2009 WL 484517, at *1-2 (Mo. App. E.D. Feb. 17, 2009).
[7] 287 S.W.3d at 672.
[8] Id.
[9] Id.
[10] 2009 WL 484517 at *6.
[11] 287 S.W.3d at 672-73
[12] Id. at 673 (citing Mo. Rev. Stat. § 287.020.3(2)(b) (Supp. 2005) (internal quotations omitted) (injuries are not compensable if they "come from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal non-employment life.")).
[13] Id. at 673-74 (citing Bennett v. Columbia Health Care, 80 S.W.3d 524 (Mo. App. W.D. 2002)).
[14] Id. at 674.
[15] Id.
[16] Id. at 675 (Teitelman, J., dissenting).
[17] Id. at 672-73; see also Ben Welsh, Workers' Comp Revisions Become Law, Columbia Missourian, Mar. 31, 2005, at 5A, available at http://www.columbiamissourian.com/stories/2005/03/31/workers-comp-revisions-become-law/.
[18] 287 S.W.3d at 672-73; compare Mo. Rev. Stat. § 287.020.2 (Supp. 2005) with § 287.020.2 (2000).
[19] Mo. Rev. Stat. § 287.020.3(1) (Supp. 2005).
[20] Mo. Rev. Stat. § 287.020.3(2)(a) (2000).
[21] Mo. Rev. Stat. § 287.020.3(2)(b) (Supp. 2005).
[22] Mo. Rev. Stat. § 287.800 (2000).
[23] Mo. Rev. Stat. § 287.800 (Supp. 2005).
[24] Mo. Rev. Stat. § 287.020.10 (Supp. 2005).
[25] 80 S.W.3d 524 (Mo. App. W.D. 2002), superseded by statute, Workers’ Compensation Law, 2005 Mo. Legis. Serv. S.B. 130 (West).
[26] Id. at 526.
[27] Id. at 531.
[28] Miller v. Mo. Highway and Transp. Comm'n, 287 S.W.3d 671, 674 (Mo. 2009) (en banc).
[29] Mo. Rev. Stat. § 287.020.10 (Supp. 2005).
[30] 287 S.W.3d at 673.
[31] Id. at 674.
[32] Id. at 675 (Teitelman, J., dissenting). Judge Teitelman's argument seems to rest on facts and generalizations drawn from outside the record: "The physical and mental fatigue caused by a hard day of physical work usually does not accompany a recreational walk around the neighborhood. Common experience teaches that one is far more likely to sustain injury when fatigued than when rested." Id. (emphasis added).

State ex rel. Henley v. Bickel[1]
Opinion handed down June 16, 2009
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that the trial court abused its discretion when it allowed plaintiffs to sue an automobile passenger under joint venture and master-servant theories for negligence arising from a motor vehicle accident and made absolute the passenger’s writ of prohibition to prevent the lawsuit. The majority found that the plaintiffs’ petition did not plead sufficient facts to show the passenger had a “realistic right of control” under either theory.[2] Judges Fischer and Teitelman dissented, arguing that the “normal rules of procedure” provided a remedy and the issuance of the writ circumvented the trial court and appellate processes.[3]

I. Facts & Holding

On November 8, 2006, Donald and Patsy Henley were involved in a motor vehicle accident with James and Connie Graves. The Graves sued both Henleys for negligence. Their petition stated that, at the time of the accident, Mr. Henley was driving, Mrs. Henley was a passenger, the Henleys were husband and wife, and they jointly owned their vehicle. It alleged that the Henleys “were engaged in a joint venture and/or joint journey at the time of the collision,” making both jointly and severally liable for negligence; furthermore, the complaint claimed that Mr. Henley was acting as Mrs. Henley’s agent, making Mrs. Henley “vicariously liable . . . under the doctrine of respondeat superior.”[4]

Mrs. Henley moved to dismiss for failure to state a claim upon which relief can be granted, arguing that the Graves’ pleading failed to allege that she had a “right of control” over the vehicle.[5] The circuit court denied her motion. When she applied for a writ of prohibition, the Supreme Court of Missouri issued a preliminary writ. Upon making the preliminary writ absolute as modified, the court held that, in a petition for negligence based on joint venture and master-servant theories, “[t]he mere allegation of a husband and wife relationship, joint ownership of an automobile, and operation of the automobile by one spouse with the other spouse as a passenger . . . consistent with everyday activities of a marriage is not sufficient to establish a ‘realistic right of control’” under either theory.[6]

II. Legal Background

A. Writs of Prohibition

A writ of prohibition is a written order issued at an appellate court’s discretion “to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent the exercise of extra-jurisdictional authority.”[7] Traditionally, if the pleader has not stated and is unable to state a cause of action over which a Missouri court has jurisdiction, the court should grant the writ.[8] Yet for writs based on a motion to dismiss, courts need not engage in a jurisdictional analysis and may issue a writ “‘to prevent unnecessary, inconvenient, and expensive litigation.’”[9]

For a plaintiff’s petition to withstand a motion to dismiss for failure to state a claim upon which relief can be granted, it “must invoke ‘substantive principles of law entitling plaintiff to relief and . . . ultimate facts informing the defendant of that which plaintiff will attempt to establish at trial.’”[10] Neither discovery nor summary judgment could remedy the lack of well-pleaded facts in a state petition. Unlike federal courts, Missouri courts use pleadings, not discovery, to determine the facts underlying a plaintiff’s claim and employ motions to dismiss, not summary judgment, to get rid of baseless claims.[11] Allowing the continuance of a suit that fails to plead sufficient facts “is a waste to the system[,] . . . an unjust expense to the parties that cannot be repaired on appeal[,] . . . [and an] abuse of judicial discretion” for which a writ of prohibition is needed to prevent “irreparable harm and . . . unnecessary litigation and expense.”[12]

B. Joint Venture and Master-Servant Theories

To establish negligence by joint venture, a petition must show that the group members engaged in the venture have 1) an express or implied agreement, 2) a common purpose to carry out, 3) “a community of pecuniary interest in that purpose,” and 4) “an equal right to a voice in the direction of the enterprise, which gives an equal right of control.”[13] The Supreme Court of Missouri noted that state case law restricted the application of joint venture to a husband and wife.[14] Under Stover v. Patrick, neither the fact of marriage nor a trip for a common purpose imputed the negligence of one spouse to the other.[15] The Stover court further held that mere co-ownership of an automobile, without more, did not establish that the passenger-owner had “‘a realistic right of control.’”[16] To establish a realistic right of control, one must make “a practical showing of an actual ability to control the driver, beyond a showing of theoretical right of control over the vehicle via ownership.”[17] The Graves’ petition, which based its argument for joint venture solely on co-ownership of the vehicle and a trip for a family purpose, failed to allege sufficient facts to establish a “realistic right of control” and thus negligence by joint venture.[18]

Similar to joint venture, proving negligence under a principal/agent relationship requires showing the principal had a “‘right to control’ . . . [those actions] necessary to the accomplishment of the final result.”[19] Missouri case law also limited use of master-servant theory against a married couple. According to McAuliffe v. Vondera, if a spouse rides as a passenger, the spouse is generally treated as the driver’s guest with no right to control the driver’s actions.[20] The absence of a right to control prevents imputation of the driver-spouse’s negligence to the passenger-spouse.[21] The Supreme Court of Missouri determined that the petition from the Graves only alleged existence of a marital relationship between Mr. and Mrs. Henley and was insufficient to state a claim for negligence based on master-servant theory.[22]

C. Dissent

In his dissent, Judge Fischer challenged the justifications behind the majority’s issuance of the writ of prohibition.[23] Because the writ allows a party to bypass the usual appellate process, it should only be employed “judiciously and with great restraint.”[24] Judge Fischer agreed that a writ may be needed to prevent judicial overreaching, a court’s lack of jurisdiction, or “‘absolute irreparable harm to a party,’”[25] but did not find any of these conditions to exist. The trial court committed “mere error” in overruling the Henleys’ motion to dismiss, which did not affect its jurisdiction over the case.[26] Furthermore, even if the trial court were to grant or overrule the motion, each side still had a remedy available: the Graves could have appealed the dismissal of their claim against Mrs. Henley to the court of appeals, whereas Mrs. Henley could have moved for summary judgment after discovery.[27]

Judge Fischer also disputed that granting the writ would prevent unnecessary and expensive litigation in this specific case. Practically speaking, both parties would still incur expenses because of Mr. Henley’s trial, and, had the case against Mrs. Henley proceeded, it likely would have been resolved quickly by summary judgment.[28] Though a writ to prevent unnecessary litigation could be appropriate when no remedy through the appellate process existed, Missouri case law did not demonstrate that a judge overruling a motion to dismiss was one of those irreparable situations.[29] Because the trial court’s actions could have been addressed by appeal, Judge Fischer concluded, “The majority’s issuance of the writ of prohibition in this case lacks judicial restraint and serves to circumvent not only our normal appellate process, but our normal process at the trial court level, as well.”[30]

III. Commentary

The majority seemed to reach the correct result, in effect, dismissal of the Graves’ claim against Mrs. Henley while giving leave to amend their petition, because the Graves’ petition did not demonstrate all the elements of negligence under either joint venture or master-servant theory.[31] Not even the dissent challenges the lack of necessary facts in the Graves’ petition. It is not clear, however, that the court should have resorted to a writ of prohibition to get this result.
The majority dismissed the remedy of summary judgment because “it focuses upon whether evidence exists to support well-pleaded facts, not the absence of pleaded facts altogether.” But as Judge Fischer observed, under Missouri Rule of Civil Procedure 74.04, Mrs. Henley could still move for summary judgment and win as a matter of law based on undisputed facts.[32] Although a well-pleaded petition will usually precede summary judgment, it would appear that the lack of sufficient facts does not necessarily preclude summary judgment. Moreover, even if one were to assume that the trial judge’s action constituted an “abuse of judicial discretion” and not just “mere error,” this action could have been rectified through trial or a regular appeal. Judge Fischer seems correct to note that normal trial and appellate processes do, in fact, provide some kind of remedy.

As for whether resorting to these processes would cause irreparable harm through frivolous and costly litigation, that assertion too does not seem as certain as the majority would suggest. Judge Fischer’s argument that both parties would still engage in discovery and a trial for Mr. Henley’s claim – a claim based on the same underlying incident as Mrs. Henley’s – undercuts the possibility of a truly “unjust expense to the parties that cannot be repaired on appeal.”[33]

In the end, it is the majority opinion that creates binding precedent. Whether this opinion will result in more parties using a writ of prohibition to circumvent the normal appellate process, as Judge Fischer warns, remains to be seen. What does seem certain, however, is that plaintiffs’ attorneys in Missouri will draft their petitions more carefully to ensure that the facts alleged are sufficient to support a cause of action.

-Kimberly E. Naguit

[1] 285 S.W.3d 327 (Mo. 2009) (en banc).
[2] Id. at 332-33.
[3] Id. at 335.
[4] Id. at 331.
[5] Id.
[6] Id. at 329.
[7] Id. at 330 (citing State ex rel. Union Elec. Co. v. Dolan, 256 S.W.3d 77, 81 (Mo. 2008) (en banc)); Black’s Law Dictionary (8th ed. 2004) (definitions of “extraordinary writ,” “writ,” and “prohibition”).
[8] Id.
[9] Id. at 330 (quoting State ex rel. Coca-Cola Co. v. Nixon, 249 S.W.3d 855, 860 (Mo. 2008) (en banc)).
[10] Id. at 329-30 (quoting Dolan, 256 S.W.3d at 82).
[11] Id. at 330.
[12] Id.
[13] Id. at 331-32 (citing Manley v. Horton, 414 S.W.2d 254, 260 (Mo. 1967) (en banc) (internal citations omitted)).
[14] Id. at 332.
[15] Id. (quoting 459 S.W.2d 393, 398 (Mo. 1970) (en banc)).
[16] Id. (quoting 459 S.W.2d at 401).
[17] Id. (citing 459 S.W.2d at 399).
[18] Id.
[19] Id. at 332-33 (quoting Bach v. Winfield-Foley Fire Protection Dist., 257 S.W.3d 605, 608, 610 (Mo. 2008) (en banc); Gardner v. Simmons, 370 S.W.2d 359, 362 (Mo. 1963)).
[20] Id. at 333 (quoting McAuliffe v. Vondera, 494 S.W.2d 692, 694 (Mo. App. 1973)).
[21] Id. (quoting McAuliffe, 494 S.W.2d at 694).
[22] Id.
[23] Id. at 333-35 (Fischer, J., dissenting). Judge Teitelman also joined the dissent. Id. at 333.
[24] Id.
[25] Id. at 333 (quoting State ex rel. Dir. of Revenue v. Gaertner, 32 S.W.3d 564, 566 (Mo. 2000) (en banc)).
[26] Id. at 334 (citing J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249, 253 (Mo. 2009) (en banc)).
[27] Id. (citing Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. 2001) (en banc); Nazeri v. Mo. Valley College, 860 S.W.2d 303, 306 (Mo. 1993) (en banc); Mo. R. Civ. Proc. 74.04)).
[28] Id. at 334-35.
[29] Id. at 335 (noting that the cases cited by the majority to argue for the necessity of the writ to prevent frivolous and costly litigation dealt with issues of venue and class certification, situations with “arguably no adequate remedy by appeal,” but not overruling of a motion to dismiss). See majority opinion at 330.
[30] Id. at 335 (Fischer, J., dissenting).
[31] Henley, 285 S.W.3d at 333.
[32] Id. at 334 (Fischer, J., dissenting).
[33] Henley, 285 S.W.3d at 330.