A Parent Convicted of Child Molestation Has No Vested Right to Unsupervised Visitation
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
In 1995, “James Cannon married Susan Randall. At the time of their marriage, Ms. Randall had a 10-year-old daughter … from a previous marriage.”1 While married, “the couple had a daughter … and a son.”2 Cannon was charged with statutory rape and statutory sodomy of his step-daughter. Before he pled guilty, the marriage was dissolved. Mother was awarded “sole legal and physical custody” of the two children and Cannon was granted supervised visitation.3 Cannon then pled guilty to the charges and was sentenced to seven years in prison. After he was paroled, he filed a motion to modify requesting that he be allowed unsupervised visitation with his son and daughter. “Section 452.375 RSMo Supp. 2006 expressly prohibits a court from awarding unsupervised visitation or custody to a parent convicted of such sexual offenses against a child.”4 The trial court found that the statute was retrospective and unconstitutional as applied to Cannon, but the Supreme Court of Missouri reversed in Cannon v. Cannon.5
Cannon contends that the new law “remove[d] his ability to seek or obtain unsupervised visitation or custody based on his past conviction.”6 As held in “Jerry-Russell Bliss v. Hazardous Waste, 702 S.W.2d 77, 81 (Mo. banc 1985), under Missouri’s Constitution, a new law may not ‘impair vested rights acquired under existing laws, or create new obligation, impose a new duty, or attach a new disability in respect to transactions already past.’”7 However, “‘a statute is not retrospective…because it [merely] relates to prior facts or transactions, but does not change their legal effect, or because some of the requisites for its action are drawn from a time antecedent to its passage, or because it fixes the status of a person for the purpose of its operation.’ Jerry-Russell Bliss, 702 S.W.2d at 81.”8
[N]othing in Missouri’s constitution or statutes states that one has a right to expect the law to remain static so that the law in place at the time of one’s dissolution – or for that matter, at the time of one’s marriage, or engagement, or coming of age – will remain inviolate. Mr. Cannon seeks a change in his status from having supervised to unsupervised visitation. The statute in effect at the time he sought this change did not permit that change in his visitation rights. The fact that he had not anticipated that a law would be enacted that would preclude him from seeking a change in the nature of his visitation does not make that amended law unconstitutionally retrospective in operation as to him, for “a mere expectation based upon anticipated continuance of the existing law” does not constitute a vested right. La-Z-Boy Chair Co. v. Director of Economic Development, 983 S.W.2d at 525.9
Mr. Cannon further contends that the amended version of section 452.375 unconstitutionally deprives him of his fundamental right to associate with his children and violates his equal protection and due process rights. … Most states, like Missouri, provide that in a dissolution proceeding, a court may limit a parent to supervised visitation if it finds that unsupervised visitation “would endanger the child’s physical health or impair his emotional development.” Sec. 452.400.2. Where a court finds that a parent has sexually abused a child, limitation of the parent to supervised visits long has been recognized as a proper balancing of the interests of the parent and the child. See, e.g., L.J.B. v. L.W.B., 921 S.W.2d 23, 26-27 (Mo.App. 1996).10
[H]ere, the application of section 452.375.3 to Mr. Cannon is not a violation of due process and does not limit his right to associate with his children unfairly. The state is not preventing Mr. Cannon from having a relationship with his children and is not attempting to deprive him of his fundamental right to associate with them. The amended version of section 452.375 still allows him to have visitation, but it limits his interaction with his children to a supervised environment. … Unquestionably, the state has a right to protect children, whether by limiting visitation or even by terminating parental rights if the health, welfare and safety of the child so requires. … Mr. Cannon is not entitled to custody or unsupervised visitation with his children under section 452.375.3. That provision is not unconstitutional.11
Business Was Entitled to Recover Both Replacement Cost of a Destroyed Vehicle and Lost Profits
Gateway Foam Insulators, Inc. owned a specially-equipped “foam insulation installation truck known as a ‘foam rig.’”12 That truck was destroyed in a traffic accident caused by an employee of Jokerst Paving. After its foam rig was destroyed, Gateway looked into purchasing a new truck, but decided that it could not afford the payments. Instead, Gateway borrowed money to purchase a used truck and then bought the equipment necessary to convert it into a foam rig. At trial, Gateway’s expert testified that it lost profits of between $120,000 and $135,000 due to the loss of use of the foam rig. Jokerst’s expert testified that Gateway’s “lost profits could not be calculated ‘to a reasonable degree of certainty’ because there were too many variables. . . .”13 The trial court awarded Gateway damages of $68,500 for the value of the destroyed foam rig and $120,000 in lost profit. It also awarded Gateway $11,723 for the interest on the loan it took out to replace the damaged foam rig. The Supreme Court of Missouri affirmed the award of replacement costs and lost profits, but reversed as to the award of loan interest in Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc.
‘The goal of awarding damages is to compensate a party for a legally recognized loss…[and a] party should be fully compensated for its loss, but not recover a windfall.’ Ameristar Jet Charter, Inc. v. Dotson Int’l Parts, Inc., 155 S.W.3d 50, 54 (Mo.banc 2005). Where a property owner is the victim of a tort that destroys his property, the law seeks to restore him for his ‘full actual loss’ by awarding him the ‘monetary equivalent’ of the destroyed property so as to place him in ‘as good a position as he would have enjoyed in the absence of the destruction.’ Stark Bro’s Nurseries & Orchards Co. v. Wayne Daniel Truck, Inc., 718 S.W.2d 204, 205-06 (Mo.App. 1996). Typically, where destroyed property can be replaced, ‘the owner of the property is fully compensated upon receipt of the expenses of replacement.’ Id. at 206. But an owner is not fully compensated if he suffers lost profits where the replacement of his destroyed property is delayed. See id. In such cases, as here, lost profits may be necessary to accomplish fully compensating the claimant for his loss.14
Traditionally, a plaintiff whose property is damaged and can be repaired, can recover either (1) the cost of renting a similar piece of property for the period of repairs, or (2) if a rental is not available, lost profits for that repair period. Orr v. Williams, 379 S.W.2d 181, 190 (Mo.App. 1964). In this case, as in Orr, the owner of the damaged property suffered lost profits because there was not a ready replacement for the unique property that was damaged. See id. at 190.15
“The facts of this case … demonstrate that lost profits were awarded in conjunction with replacement damages without resulting in an award of a windfall of duplicative damages.”16 Where, as here, “a claimant provides evidence supporting awards for replacement damages and lost profits, this Court finds no prohibition against awarding lost profits simply because property replacement monies also are awarded.”17
“In evaluating the sufficiency of evidence to sustain awards of damages for loss of business profits the appellate courts of this state have made stringent requirements, refusing to permit speculation as to probable or expected profits, and requiring a substantial basis for such awards.” Ameristar, 155 S.W.3d at 54 (quoting Coonis v. Rogers, 429 S.W.2d 709, 713-14 (Mo. 1968)). Ameristar makes clear that lost-profits determinations are based on estimations of prospective or anticipated profits and cannot be expected to operate as an exact science. See id. at 54-55. Because lost profits are of a character that defies exact proof, the trial court had a greater degree of discretion to weigh the lost-profits award based on common experience demonstrating that a substantial pecuniary loss has occurred. Id. at 55.18
Here, Gateway’s expert presented lengthy testimony about lost-profit calculations and how those calculations “factored in likely gross revenue, less various expenses, and also considered negative factors impacting the construction industry.”19 The trial court deemed the testimony of Gateway’s expert to be reliable and found that testimony to provide “an adequate basis for estimating the lost profits with reasonable certainty. Considering the evidence in the light most favorable to the trial court’s determination, there was an adequate basis for the trial court’s adoption of [the expert’s] estimation of lost profits of $120,000. [Gateway’s] evidence was not rendered merely speculative because [d]efendant’s [expert] disagreed” with the calculations made by Gateway’s expert.20 Under Ameristar, the trial court’s award of loan interest is reversed because that award amounted to a double recovery on top of the lost profits and replacement damages.
Comparative Fault Instruction Requires Evidentiary Support
Ronald Hayes … was seriously injured when his motorcycle struck an automobile driven by Trisha Price…, who had turned left in front of [Hayes] at an intersection.”21 As Hayes approached the intersection, a Bronco was between Hayes and Price’s car. At the time Price started her left turn, neither she nor Hayes could see each other because of the Bronco. When Hayes came out of the blind spot created by the Bronco, the collision happened immediately. Hayes saw Price’s car too late to avoid the collision. At the conclusion of the trial, the court gave a “verdict directing instruction” for Hayes, hypothesizing that Price “failed to yield the right-of-way.”22 Over objection, the trial court also gave a comparative fault instruction hypothesizing that Hayes failed to keep a careful lookout. “The jury found [Price] 80% at fault, and [Hayes] 20% at fault.”23 The jury also assessed Hayes’ damages at $625,000. The trial court entered judgment for Hayes for $500,000. The Court of Appeals, however, held that the trial court erred in giving the comparative fault instruction and modified the judgment for Hayes to be $625,000 in Hayes v. Price.
A comparative fault instruction is not warranted in every negligence suit. Rather, the defendant bears the burden of producing evidence to support the instruction. Wendt v. General Acc. Ins. Co., 895 S.W.2d 210, 215 (Mo.App. 1995). Thus, a comparative fault instruction must be supported by substantial evidence and cannot be based upon mere speculation or conjecture. Id.; Benedict v. Northern Pipeline Constr., 44 S.W.3d 410, 423 (Mo.App. 2001). It is error to give a comparative fault instruction that is not supported by substantial evidence. Stevens v. Craft, 956 S.W.2d 351, 358-59 (Mo. App. 1997).24
“[T]he submission of a lookout instruction is not proper unless there was substantial evidence showing that the person charged with negligence could and should have seen the danger of injury to himself in time thereafter to have taken available and effective precautionary action. Young v. Grotsky, 459 S.W.3d 306, 309-10 (Mo. 1970).”25
Here, “[b]ecause the Bronco obscured [the vision of Hayes,] there was no way for him to see [Price’s] vehicle when it first began to move. … [Hayes] did not have the time and means to avoid the collision once he emerged from the blind spot created by the Bronco. [Thus,] the evidence was insufficient to support the giving [of a comparative fault instruction.] See Powell, 526 S.W.2d at 325-26. Because this instruction was the only one [that] permitted the jury to assess a percentage of fault to [Hayes], the error was prejudicial. See McLeod v. Beloate, 891 S.W.2d 476, 478 (Mo.App. 1994).26
Although the trial court erred in giving the comparative fault instruction, “[n]o remand is required in order to correct this error. Spann, ex rel. Spann v. Jackson, 84 S.W.3d 478, 482 (Mo.App. 2002); Dick v. Carbon, 926 S.W.2d 172, 173 (Mo.App. 1996). Rule 84.14 authorizes this Court to modify the judgment by eliminating the reduction in damages due to erroneous assessment of comparative fault to [the] [p]laintiff. Robinson v. Weinstein, 856 S.W.2d 337, 338 (Mo.App. 1993). Disregarding any fault on Plaintiff’s part, the jury assessed his total damages at $625,000. The judgment is modified by adjusting the amount [to] [p]laintiff from $500,000 to $625,000. Id.27
Failure to Disclose Constituted False Misrepresentations
The Borgschultes purchased a residence from the Bonnots that was adjacent to Table Rock Lake. The Bonnots had lived there for more than three years. When they listed the property for sale, the Bonnots completed a “Seller’s Disclosure Statement.” In that statement, the Bonnots indicated that there were no problems with the septic system. After purchasing the property, Mr. Borgschulte noticed that areas on the property were soggy and smelled of sewage. A contractor who inspect the septic system determined that it had a leaching problem and needed to be replaced. Borgschulte also determined that the Bonnots had placed dirt over the soggy soil. The Borgschultes replaced the septic system at a cost of $15,360 and filed suit against the Bonnots for false representations. The trial court awarded the Borgschultes $15,360 in damages, plus $12,273 for attorney’s fees. The Court of Appeals affirmed the damage award, but reversed the award of attorney’s fees in Borgschulte v. Bonnot.
The failure of the Bonnots to disclose any problems with the septic system on the “Seller’s Disclosure Statement” and their failure
to disclose that the area over the septic system had been covered with dirt, provided sufficient bases for the trial court to conclude that [the Bonnots] made false, material representations to [the Borgschultes]. “Silence or concealment of facts can amount to misrepresentation and serve as a substitute element for a false and fraudulent misrepresentation if the silent party has a duty to speak.” Keefhaver v. Kimbrell, 58 S.W.3d 54, 59 (Mo.App. 2001). See also Barylski v. Andrews, 439 S.W.2d 536, 540 (Mo.App. 1969) (actions to cover up a defect without disclosure can constitute a false misrepresentation).28
A seller who has lived in a house can be expected to have knowledge about the property superior to a buyer’s knowledge. Keefhaver, 58 S.W.3d at 60. [The Bonnots] lived in the house on the property prior to selling it to [the Borgschultes]. [The Bonnots’] duty to speak arose from the superior knowledge they had regarding the property. Hess v. Chase Manhattan Bank, USA, N. A., 220 S.W.3d 758, 767 (Mo.banc 2007). [The Bonnots’] … Disclosure Statement did not identify the leaching problem regarding the septic system, although there was evidence that [they] knew of the problem, had discussed replacing their system to alleviate it, and, finally, had simply placed dirt over the location and put a garden in the area where they had placed the new dirt.29
Although the Borgschultes had the property inspected, “the problems with the septic [tank] and leach field were not ascertainable … absent removal of the garden and inspection of the area that lay below where the new soil had been placed.”30 Because the Bonnots had
lived on the property for more than three years, had superior knowledge to that of [the Borgschultes] with respect to the septic system … and with respect to any repairs that … needed to be made … [the Borgschultes] had a right to rely on [the Bonnots’] representations with respect to the condition of the septic system. … The fact that [the Borgschultes] had an independent inspection of the property, as permitted by the sales contract, did not negate that right. [The Borgschultes] were deceived by [the Bonnots’] representations. See Colgan v. Washington Realty Co., 879 S.W.2d 686, 691 (Mo.App. 1994).31
Litigants are generally required to bear the expense of their own attorney[’s] fees. Exceptions occur (1) when fees are authorized by contract or statute; (2) when fees are incurred by reason of collateral litigation; or (3) when a court of equity finds an award of attorney[’s] fees necessary to “balance benefits.” Memco, Inc. v. Chronister, 27 S.W.3d 871, 877 (Mo.App. 2000).32
This action was not covered by any of the exceptions. Thus, the award of attorney’s fees is reversed.
Jury Verdict Will Not Be Overturned Unless There is a Complete Absence of Probative Facts to Support the Verdict
John Johnson purchased a homeowner’s insurance policy from Allstate Indemnity Co. When his home was destroyed by fire, Johnson filed a claim with Allstate. After investigating the fire, Allstate’s adjuster sent Johnson a denial letter. In that letter, Johnson was told that there was a “reasonable belief” he intentionally misrepresented the facts pertaining to the claim and that he had “engaged in fraudulent conduct.”33 Johnson filed suit against Allstate for defamation. Johnson alleged that he disclosed the denial letter to insurance agents while attempting to obtain insurance and that because of the statements in the letter he had not been able to obtain insurance. “The jury rendered [a] verdict in Johnson’s favor [for] … $900,000 in actual damages and $100,000 in punitive damages.”34 The verdict was affirmed in Johnson v. Allstate Indemnity Co.
[In reviewing a jury verdict, the evidence is viewed] in the light most favorable to the verdict, giving the prevailing party all reasonable inferences from the verdict and disregarding the unfavorable evidence. Hodges v. City of St. Louis, 217 S.W.3d 278, 802 (Mo. banc 2007). “A jury verdict will not be overturned unless there is a complete absence of probative facts to support the verdict.” Martha’s Hands, LLC v. Starrs, 208 S.W.3d 309, 314 (Mo. App. E.D. 2006).
. . . .
Viewing the evidence in the light most favorable to the verdict and disregarding contrary evidence, we find the jury was presented with ample evidence to support an award of actual damages based upon the reputational damage Johnson suffered as a result of the defamatory statements contained in the denial letter.
. . . .
Ultimately, “[t]he question of whether [a plaintiff’s] damages were caused by the defamatory statement [is] for the jury to decide.” Overcast, 11 S.W.3d at 71. …[T]here was competent and substantial evidence presented to the jury to support the jury’s award of actual damages to Johnson.”35
The trial court did not abuse its discretion in denying Allstate’s motion for remittitur.
The trial court’s determination will not be disturbed on appeal absent an abuse of discretion so grossly excessive that it shocks the conscience and convinces this Court that both the trial judge and the jury have abused their discretion. Kiesel Co. v J & B Properties, Inc., 241 S.W.2d 868, 86 (873 (Mo.App. E.D. 2008). “Remittitur is appropriate where the jury’s verdict is excessive.” Burrows v. Union Pacific R. Co., 218 S.W.3d 527, 541 (Mo.App.E.D. 2007). A jury’s verdict will be deemed excessive when it exceeds fair and reasonable compensation for the plaintiff’s damages. Woods v. Friendly Ford, Inc., 248 S.W.3d 665, 678 (Mo.App. S.D. 2008). [The appellate] Court will defer to the trial court’s discretion whether to remit a verdict since the trial court is in a superior position to observe the witnesses, including the plaintiff. Burrows, supra.36
There was “competent and substantial evidence” to support the damages.37 “We cannot say the trial court abused its discretion in denying Allstate’s motion for remittitur after hearing the evidence and observing the demeanor of the witnesses.”38
To Make a Submissible Case, Plaintiff is Required to Present Probative Evidence of Defendant’s Negligence
Ronald and Sarah Sherrell owned a service station adjacent to the mobile home of Brandy Brown.39 Ten days after Brown moved out of the mobile home, it caught fire. The fire spread to the property of the Sherrells and damaged their service station. On the day of the fire, Brown was in another state. At the trial on the Sherrells’ claim against Brown, Ronald Sherrell testified that he had no knowledge as to how the fire occurred. “The trial court found [that Brown] was negligent in failing to properly monitor the home and periodically check” it, and awarded the Sherrells damages of $9,015.40 The Court of Appeals reversed, however, in Sherrell v. Brown.
The possessor of property must use and maintain the property in such a manner as not to create an unreasonable risk of harm to others. Custom Craft Tile, Inc. v. Engineered Lubricants Co., 664 S.W.2d 556, 558 (Mo.App. E.D. 1983). … The liability of one on whose property an accidental fire originates is predicated upon negligence in either causing the fire or in causing its spread to the property of others. Id. Thus, a defendant may be held liable for the spread of fire caused by the premises being maintained in a negligent condition. Id. The owner of property is not liable for the spread of a fire accidentally started by the act of a stranger or by some other cause of which the owner has no control, unless the owner is guilty of some negligence in respect to the condition of its premises. Id. at 559.
The cause of a fire is frequently unknown and it is possible for a fire to occur under circumstances where appropriate care has been exercised. Fry v. Wagner Bros. Moving & Storage Co., 267 S.W.2d 359, 361 (Mo.App. 1954). The mere occurrence of a fire does not raise a presumption of negligence, or a presumption as to the cause of the fire. Sparks v. Platte-Clay Elec. Co-op., Inc., 861 S.W.2d 604, 606 (Mo.App. W.D. 1993), citing Craddock v. Greenberg Mercantile, 297 S.W.2d 541, 547 (Mo. 1957).41
“To make a submissible case, Plaintiffs were required to elicit substantial, probative evidence or reasonably drawn inferences from the evidence that Defendant was negligent and her negligence caused the fire. Sparks, 861 S.W.2d at 606.”42
“Here, there was no evidence as to the cause of the fire.”43 Mr. Sherrell “testified he did not see anything on Defendant’s property that gave him concern of a fire risk. There was no evidence indicating that Defendant kept her home in an unsafe or dangerous condition which caused or contributed to cause the fire or its spread. In addition, there was no evidence regarding whether any monitoring or checking of the home by Defendant would have averted or prevented the fire.”44
[T]here was no evidence that any negligence on the part of Defendant caused the fire or the spread of the fire. The mere fact that a fire occurred on Defendant’s property without more evidence is insufficient to sustain Plaintiffs’ negligence action. Sparks, 861 S.W.2d at 606; Bridgeforth, 490 S.W.2d at 422. Plaintiffs failed to make a submissible case of negligence.45
Municipality Must Provide a Hearing to a Property Owner Before Declaring the Property a Nuisance
Raymond Rhymer owned an abandoned building with a caved-in roof that was located within the Village of Blodgett.46 After receiving a letter from the village that the building was in violation of the village’s unsafe building ordinance, Rhymer hired a contractor to tear down the building. The contractor left a pile of loose bricks where the basement of the building had been located. The village then sent another letter to Rhymer notifying him that the property was in violation of the village’s unsafe building ordinance and nuisance ordinance. After receiving the letter, Rhymer appeared at a meeting of the village board of trustees and asked whether putting a fence around the property would remedy his situation. After the meeting, Rhymer received another letter from the village notifying him that he had two weeks to remedy the unsafe condition or the village would clean up the property and have a special tax bill levied against the property. After sending another letter to Rhymer notifying him of the same things, the village then hired a contractor to fill in the basement and remove the remaining debris. After the work was done, the village filed a special tax bill against Rhymer’s property in the amount of $5,360. When that was not paid, the village filed suit to enforce the tax bill and the trial court entered judgment in favor of the village. The Court of Appeals reversed, however, in Village of Blodgett v. Rhymer.
Sections 67.398 and 67.400 RSMo. are enabling statutes that permit a municipality (or village) to enact ordinances or orders requiring demolition and repair of buildings that adversely affect the health, safety, or welfare of the residents and that have been declared a public nuisance. City of Kansas City v. N.Y.-Kan. Bldg. Assocs., 96 S.W.3d 846, 859 (Mo.App. W.D. 2002). ‘Every citizen holds his property subject to the valid exercise of the police power.’ State ex rel. State Highway Comm’n v. Meier, 388 S.W.2d 855, 859 (Mo. banc 1965). A city is a creature of the state and has only the police power conferred to it by the state. City of Kansas City v. Jordan, 174 S.W.3d 25, 41 (Mo.App. W.D. 2005).47
Here, the village never provided a hearing for Rhymer, as required by its ordinances. Moreover, the village never treated the alleged nuisance as an emergency. The village originally gave Rhymer 30 days to clean up his property and later granted him an additional two-week extension. There was “no evidence in the record to support [the] Village’s contention that it treated the property as an ‘immediate danger to the health, safety or welfare of the public.’”48
“If an extraordinary or emergency situation does not exist, a hearing must be provided before a deprivation of property occurs and a subsequent hearing will not satisfy due process.” Jordan, 174 S.W.3d at 43. Once [the] Village decided to enact the ordinances at issue and inform [the property owner] it would be enforcing them, it could not ignore the notice and hearing provisions within those ordinances and proceed in a different manner. [The property owner] was correct in pointing out that [the] Village did not provide him with the hearing its ordinances required.…[N]o valid tax lien could be issued until after the required hearing was held.49
Foreign Judgment Entitled to Full Faith and Credit
The Kansas Secretary of Transportation “filed an eminent domain petition in the District Court of Wyandotte County, Kansas, against Glacier Development Company, LLC.”50 The petition identified Glacier as the owner of the property being condemned. The court-appointed “appraisers filed a report concluding that the fair market value of the land was $2,190,000.”51 Glacier withdrew the award from the court. The Kansas Secretary of Transportation filed an appeal from the award. Two attorneys “entered their appearance in the case on behalf of Glacier and ‘Lester M. Dean, Jr.’”52 The Kansas District Court found that Glacier and Dean were the owners of the property and also found that the court had jurisdiction over the parties. After trial, the Kansas District Court entered judgment on the jury verdict finding that the fair market value of the land was $800,000 and granting judgment to the Kansas Secretary of Transportation against defendants Glacier Development Company and Lester M. Dean, Jr. in the amount of $1,390,000, plus interest. That judgment was affirmed by the Kansas Supreme Court. The Kansas Secretary of Transportation filed a petition in the circuit court of Jackson County for registration of the Kansas judgment against Glacier and Dean. The circuit court entered judgment on the Kansas judgment and the Court of Appeals affirmed in Miller v. Dean.
“Missouri courts give full faith and credit to judgments of sister states, except where it can be shown that no jurisdiction exists over the subject matter or over the person or where the judgment was obtained by fraud. Phillips v. Fallen, 6 S.W.3d 862, 864 (Mo. banc 1999).”53
“Absent a showing to the contrary, a judgment of a court of a sister state is entitled to a strong presumption that the court had jurisdiction over the parties and the subject matter and that it followed its laws and entered a valid judgment.” Wheeler v. Winters, 134 S.W.3d 74, 777 (Mo.App. 2004). “The party challenging the validity of a judgment has the burden of overcoming this presumption.” Id. Where a party raises the issues of personal and subject matter jurisdiction in the foreign state and those issues are litigated, the foreign court’s determination is conclusive and entitled to full faith and credit, even if its determination is wrong. Sentinel Acceptance, Ltd., L.P. v. Hodson Auto Sales & Leasing, Inc., 45 S.W.3d 464, 469 (Mo.App. 2001)… A judgment regarding jurisdiction is entitled to full faith and credit where it has been fully and fairly litigated and finally decided in the original court. Sentinel, 45 S.W.3d at 469. A litigant, therefore, may raise the issues of personal and subject matter jurisdiction for the first time when the judgment is registered in Missouri only if the issues had not already been litigated and decided in the foreign state. L&L Wholesale, 108 S.W.3d at 80.
In ordering the Kansas judgment against Glacier and Dean to be registered in Missouri, the circuit court determined that Dean had submitted himself to the jurisdiction of the Kansas District Court and that the issues of subject matter and personal jurisdiction had been fully litigated in the Kansas District Court. … [T]he Kansas District Court had subject matter jurisdiction and personal jurisdiction over Dean.54
Although Dean was never served with process, his attorneys entered their appearance for him.
Dean also asserted an ownership interest in the property, participated in the trial, and was represented by counsel throughout the proceedings. “The execution and filing of the written entry of appearance was equivalent to service of process, and [Dean] thereby submitted himself to the court’s jurisdiction.” Dotson, 426 P.2d at 143. … [G]iven Dean’s actions in asserting an ownership interest in the property, actively participating in the trial and being represented by counsel throughout the proceedings, Dean cannot now claim that the Kansas District Court did not have personal jurisdiction over him.55
Footnotes
1 Cannon v. Cannon, No. SC 89118 (Mo. banc April 14, 2009)
2 Id.
3 Id.
4 Id.
5 Id.
6 Id. (citation omitted).
7 Id. See Jerry-Russell Bliss, Inc. v. Hazardous Waste, 702 S.W.2d 77, 81 (Mo. banc 1985).
8 Id.
9 Cannon v. Cannon, No. SC 89118 (Mo. banc April 14, 2009). See La-Z-Boy Chair Co. v. Dir. Of Econ.Dev., 983 S.W.2d 523, 525 (Mo. banc 1999).
10 Cannon v. Cannon, No. SC 89118 (Mo. banc April 14, 2009). See L.J.B. v. L.W.B., 921 S.W.2d 23, 26-27 (Mo. App. E.D. 1996).
11 Cannon v. Cannon, No. SC 89118 (Mo. banc April 14, 2009). See Sable Comm. of California, Inc. v. F.C.C., 492 U.S. 115, 128 (1989).
12 Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., No. SC 89576, 2009 WL 837698 at 1 (March 31, 2009).
13 Id. at *2.
14 Id. at headnote 2.
15 Id. at *3
16 Id.
17 Id.
18 Id.
19 Id. at *4
20 Id.
21 Hayes v. Price, No. SD 27730 (Mo. App. S.D. Feb. 24, 2009)
22 Id.
23 Id.
24 Id.
25 Id.
26 Id. See Powell v. Watson, 526 S.W.2d 318 (Mo. App. S.D. 1975).
27 Id.
28 Id.
29 Id.
30 Id.
31 Id.
32 Id.
33 Johnson v. Allstate Indemnity Co., No. ED 90476 (Mo. App. E.D. March 27, 2009).
34 Id.
35 Id. See Overcast v. Billings Mut. Inc. Co., 11 S.W.3d. 62, 71 (Mo. banc 2000).
36 Id.
37 Id.
38 Id.
39 Sherrell v. Brown, No. ED 91319 (Mo. App. E.D. March 2, 2009).
40 Id.
42 Id.
43 Id.
44 Id.
45 Id.
46 Id. See Bridgeforth v. Proffitt, 490 S.W.2d 416, 422 (Mo. App. S.D. 1973).
47 Village of Blodgett v. Rhymer, No. SD 28964, 2009 WL 796326 (Mo. App. S.D. March 25, 2009).
48 Id.
49 Id.
50 Id. See City of Kansas City v. Jordan, 174 S.W.3d 25, 43 (Mo. App. W.D. 2005).
50 Miller v. Dean, No. WD 69733 (Mo. App. W.D. April 14, 2009).
51 Id.
52 Id.
53 Id.
54 Id. See L&L Wholesale, Inc. v. Gibbens, 108 S.W.3d 74, 80 (Mo. App. S.D. 2003).
55 Id. See Dotson v. State Highway Comm’n., 426 P.2d 138, 142-43 (Kan. 1967)