W. Dudley McCarter
Behr, McCarter & Potter
St. Louis

Dr. Joseph Kimbrough, a St. Louis dentist, served on the faculty of the Washington University Dental School. In his 1955 estate plan, he included a trust for his niece and nephews which provided that, upon their death, the trust estate would be "paid over and distributed free of trust unto Washington University.for the exclusive use and benefit of its Dental Alumni Development Fund." During his lifetime, Dr. Kimbrough made numerous gifts to Washington University; nearly half of them were unrestricted and did not designate any specific college or program at Washington University. Dr. Kimbrough died in 1963. By 1991, the university had closed its dental school and its Dental Alumni Development Fund had been transferred to the university's Annual Fund. Dental medicine remained a component of the education at the university's medical school. In 2000, the last of his niece and nephews designated in the trust died. An action for declaratory judgment was brought by Dr. Kimbrough's great, great-nieces alleging that Dr. Kimbrough's trust, valued at approximately $2.8 million, should revert to them and contending that the trust was created with a specific charitable intent. The circuit court found that the trust was created with a general charitable intent and applied the doctrine of cy pres in favor of Washington University. The circuit court further ordered that the trust be used to establish one or two chairs in Dr. Kimbrough's name. The Supreme Court affirmed in Obermeyer v. Bank of America, No. SC 85632 (Mo.banc 2004).

The ultimate issue in a cy pres case is the intent of the testator. Missouri courts apply the cy pres doctrine based on all the relevant facts and circumstances, not simply the language of the instrument making the grant. The cy pres doctrine is based on a concern of equity to protect and preserve charitable bequests. Charitable trusts are favorites of equity and they are given effect whenever possible by applying the most liberal rules which the nature of the case will permit. While the cy pres power is generally confined to charitable trusts, it may also be applied to absolute gifts to charitable corporations or other organizations. Cy pres exists to conform the terms of a gift to current conditions.

A general charitable intent exists when there is an intent to assist a certain general type or kind of charity. Dr. Kimbrough's gift to Washington University for the Dental Alumni Development Board was not for a particular task to be accomplished, but to support dental medicine at Washington University, a profession of which he was deeply proud. The trust document contained no suggestion that the gift should fail if the particular fund ceased to exist. Dr. Kimbrough's charitable intent was to further education and dental medicine at Washington University. There is no evidence that he wanted his gift so narrowly drawn and so inflexible that, if it could not be used in a specifically named fund, it should lapse. Although the dental school has been closed and the university no longer grants the basic degree in dental medicine, dentistry continues through the medical school. Neither the closing of the dental school, nor the change in the Dental Alumni Development Fund make Dr. Kimbrough's gift useless. The trust estate can be used to continue treatment of dental patients, research and post-graduate education in dental medicine.

Cy pres literally means "as near as." Dr. Kimbrough's objective was to further dental education at Washington University. That objective may still be met, since the medical school at Washington University continues to teach and practice dental medicine. The general purpose of Dr. Kimbrough's gift to support educational programs and projects in dental fields at Washington University can be accomplished. The circuit csourt's disposition of the trust assets carries out Dr. Kimbrough's intent.

Equitable Clean Up Doctrine Does Not Bar Jury Trial

Craig Leonardi signed a consulting agreement with Radiant Research, whereby Leonardi agreed to conduct clinical tests for new drugs on behalf of Radiant. The agreement included restrictive covenants that prohibited Leonardi from conducting such clinical trials for pharmaceutical companies for one year following the termination of the agreement. Dr. Leonardi terminated the agreement, and Radiant filed suit against him seeking injunctive relief for the enforcement of the restrictive covenants in the agreement. Leonardi filed a counterclaim seeking damages for breach of contract. Leonardi requested a jury trial, which was denied by the trial court under the equitable cleanup doctrine. Leonardi filed his request for a Writ of Prohibition, which was granted and made permanent by the Supreme Court of Missouri in State of Missouri ex rel. Leonardi v. Sherry, No. SC85520 (Mo. banc 2004).

In its present state, the law in Missouri on the right to a jury trial in cases involving claims for both damages and equitable relief is both inconsistent and confusing. The cases are difficult, if not impossible, to reconcile. What must be taken into account, however, is the consolidation of equitable and legal jurisdiction in our circuit courts, and appropriate consideration must be given to the historical preference for trial by jury as expressed in Article I, Section 22(a) of the Constitution of the State of Missouri. The equitable cleanup doctrine developed as a means to attain a more practical and efficient resolution of disputes with both claims at law and in equity. The idea of equitable cleanup jurisdiction is a misnomer. Any circuit court with jurisdiction over the parties and a controversy can render whatever relief is required, be it equitable or a request for damages. There is never a need to have two separate proceedings, one in equity and one at law. The right to a trial by jury has become a fundamental element of our judicial system; this right is guaranteed in the Seventh Amendment of the U. S. Constitution and in Article I, Section 22(a) of the Missouri Constitution. To allow the doctrine of equitable cleanup as a blanket rule to supplant a litigant's ability otherwise to have a jury trial demonstrates inadequate respect for this historical preference for trial by jury.

Missouri trial courts have jurisdiction to try cases involving requests for equitable relief and damages in one proceeding. The trial court has discretion to try such cases in the most practical and efficient manner possible, consistent with Missouri's historical preference for a litigant's ability to have a jury trial of claims at law. Unless circumstances demand otherwise, trials should be conducted to allow claims at law to be tried to a jury, with the court reserving for its own determination only equitable claims and defenses, which it should decide consistently with the factual findings made by the jury. This procedure preserves the trial court's flexibility to try cases in the most practical and efficient manner possible and also preserves the distinction between equitable relief and damages, while respecting the historical preference for trial by jury. It does not, however, enlarge or expand the right to a jury trial in this state. Equitable issues that have been tried to a court shall still be tried to the court. Here, the existence of Radiant's equitable claims cannot alone justify a wholesale denial of Leonardi's request for a jury trial of his counterclaims.

Expert Testimony Improperly Admitted

Susan McGuire was injured in a traffic accident when she was struck by a tractor-trailer truck owned by S&S Seed Farms. During the trial of her case, S&S called a forensic psychiatrist as an expert witness. The expert testified that McGuire had a somatization disorder. That disorder exists in someone who has physical complaints greatly in excess of an actual medical problem or complaints with no medical problem at all. The expert based this diagnosis on a review of McGuire's medical records, but without examining or interviewing McGuire. The expert acknowledged that in order for a person to be diagnosed with somatization disorder, the person must have begun having somatic complaints that are not substantiated by an organic cause prior to the age 30. She also testified that while the records of McGuire she reviewed started when McGuire was 34 years old, those records point to complaints going back to age 30. McGuire obtained a judgment of $45,000 and appealed on the basis that the expert testimony offered by S&S was improperly admitted. The Supreme Court agreed and reversed the judgment in McGuire v. Seltsam, No. SC85988 (Mo. banc 2004).

Generally, it is within the trial court's sound discretion to admit or exclude an expert's testimony. Section 490.065 is the standard for admitting expert testimony in civil cases. That section requires the court to consider whether experts in the field reasonably rely on the type of facts and data used by the expert or if the methodology is reasonably reliable. If not, the testimony is inadmissible. Whether the expert opinion testimony satisfies the requirements of § 490.065 is a matter of trial court discretion. Medical opinions based upon assumptions not supported in the evidence should not be admitted into evidence. Here, the expert's assumption that McGuire's medical records prior to her reaching age 34 would have contained evidence of somatic complaints is based upon speculation and conjecture. The records reviewed by the expert in forming her diagnosis simply do not contain evidence from which she could reasonably have made that assumption. It appears that the expert was making that assumption based upon her diagnosis and making her diagnosis, in part, upon that assumption. This type of circular logic cannot form a reliable basis for an expert opinion. The trial court abused its discretion in finding that the facts and data upon which the expert based her diagnosis were reasonably reliable and in admitting her testimony into evidence. Thus, the question is whether the erroneously admitted evidence had any reasonable tendency to influence the verdict of the jury. The credibility of McGuire was a paramount issue in this case. The expert's testimony had a reasonable tendency to influence the jury's assessment of the credibility of McGuire and, thus, had a reasonable tendency to influence the verdict.

Without Direct Contract, Supplier Has No Unjust Enrichment Claim or Prompt Pay Claim Against a School District

Mays-Maune supplied building materials to Werner Bros., which was a subcontractor to Bridwell Construction, the general contractor on a project for Grandview R-II School District. Mays-Maune was not paid for the materials and filed suit against Warner, Bridwell and Grandview School District, asserting claims against each for unjust enrichment and violation of the public works prompt pay act. The trial court granted motions to dismiss filed by Bridwell and Grandview. The Court of Appeals reversed the judgment, dismissing the claims against Bridwell, but affirmed the dismissal as to the school district in Mays-Maune & Associates, Inc. v. Werner Brothers, Inc., No. ED 83400 (Mo. App. E.D. 2004).

Section 432.070, RSMo, has been interpreted by Missouri courts to preclude recovery against a school district on any theory of implied contract. The fact that the school district has received the benefit of the plaintiff's performance does not make it liable on the theory of implied contract. The statutory requirement that the contract be in writing is mandatory, and strict compliance is required in order to bind the school district. The plaintiff's claim against the school district is for unjust enrichment, which is a theory of implied contract; such a claim is prohibited.

The Prompt Payment Act, § 34.057, RSMo, is a remedial statute that was adopted for the purpose of addressing widespread abuses of subcontractors by contractors. There is no provision in the act, however, imposing on a public owner any duty or obligation to a subcontractor or material supplier. All of the Missouri cases interpreting the act involve either a claim by the contractor against the owner, or by a subcontractor against the contractor. By its terms, the statute contemplates privity of contract between the parties; any cause of action set forth in the statute appears to be premised on a contractual relationship. Here, the plaintiff did not have a contract with the general contractor or the school district and, as such, it cannot maintain a cause of action under the Prompt Payment Act against the general contractor or the school district.

Municipality Has Police Power to Close A Residence Being Used as a Drug House

After obtaining a search warrant, police officers of University City raided the home of Mamie Lewis and Sammy Lewis and seized large amounts of currency, cocaine, marijuana and drug paraphernalia. Sammy Lewis admitted he was selling drugs at the residence; Mamie admitted to possession of marijuana, but denied knowing drugs were being sold out of the residence. As a result of the raid, Sammy was convicted of criminal charges, but Mamie was not charged with any criminal offense. Later, University City notified Mamie that it would conduct a hearing to determine whether her residence constituted a nuisance in violation of city ordinances. The city manager presided at the hearing and, after the hearing was concluded, issued his findings that the residence was used for the illegal sale of controlled substances and constituted a public nuisance. He ordered Mamie's home closed and vacated for a three-month period. Mamie appealed to the circuit court, which upheld University City's decision. The Court of Appeals also affirmed the decision in Lewis v. City of University City, No. ED 83042 (Mo. App. E.D. 2004).

On appeal, the standard of review requires the court to uphold the decision of the agency or board unless it is not supported by competent and substantial evidence. The evidence is viewed in its entirety and in the light most favorable to the decision of the board or agency. The Court may not substitute its judgment for that of the administrative decision-maker, and if the evidence supports either of two findings, the court is bound by the administrative determination. The ordinances of University City allow the city manager to hold a public hearing to determine whether a nuisance exists, and if so, order it abated. Here, the city manager was not participating as the prosecutor at the same time he was determining Mamie's rights. The city manager's actions do not violate the separation of powers prohibited in the state constitution.

A municipal ordinance will be deemed a legitimate exercise of police power if the express requirements of the ordinance bear a substantial and rational relationship to the health, safety, peace, comfort and general welfare of the citizenry. Where an ordinance appears to be within the scope of a municipality's delegated police power, the court will not substitute its discretion for that of the legislative body that enacted the ordinance. The University City ordinance bears a reasonable relationship to the health, safety and general welfare of the city's residents: its purpose is to shut down locations where controlled substances are sold.

An ordinance that vests discretion in an administrative agency must include standards for its guidance in order for it to be constitutionally acceptable, except where: (1) the ordinance deals with a situation that requires the vesting of discretion in public officials; (2) the discretion relates to the administration of a police regulation and is necessary to protect the public morals, health, safety and general welfare; and (3) personal fitness is a factor to be considered. Here, based on the facts in the record as a whole, the city manager's decision to close Mamie's house was not arbitrary or capricious because the city provided substantial evidence that her residence was a place used for the illegal sale and use of controlled substances and constituted a public nuisance under the city code. The city manager made his decision as administrator of a police regulation and the city abated the nuisance pursuant to its police powers by implementing the legal steps outlined in its ordinance. The city's decision to close the home was not arbitrary or capricious.

Joint Custody Must Be in the Best Interests of the Child

Brian Brown and Nicole Shannahan had a 10-month relationship that resulted in the birth of a son. They lived together until their son was 3 months old. At that time, Nicole doubted Brian's ability to responsibly parent their son and moved to Virginia. Brian filed an action to establish paternity and obtain custody of their son. There was conflicting testimony at trial. Mother testified that, during the relationship, she was not aware that Brian had his second DWI and was on probation. Brian testified that Nicole knew all along that he was on probation, but was insanely jealous of his first child and was forcing him to choose between his two children. The trial court awarded joint legal custody of their son to Brian and Nicole, but the Court of Appeals reversed in Brown v. Shannahan, No. ED 83007 (Mo. App. E.D. 2004).

Preference for joint custody is not that of forced joint custody in order to induce parents to find common ground, but it is a preference in favor of parents who show willingness and ability to share the rights and responsibilities of child-rearing, even after they have dissolved their relationship. Joint legal custody was not designed to ensure that a parent maintains his or her relationship with the child, but was designed to facilitate the best interest of the child by allowing both parents to share in the decision-making process. Imperative to the best interest of the child in a joint custody arrangement are the commonality of beliefs concerning parental decisions and the ability of parents to cooperate and function as a parental unit. If the parties are unable to communicate or cooperate and cannot make shared decisions concerning their children's welfare, joint legal custody is inappropriate. The parents in this case have not communicated regarding their son or any other matter for 13 months. Mother testified that she would not have initiated contact with father had it not been for the court summons. Additionally, father made no attempt to support or visit his son once he found the son's address. The order granting joint legal custody is not supported by substantial evidence. On remand, the trial court is directed to grant sole legal custody to mother.

Prejudgment Interest is Appropriate on Liquidated Amounts

Several businesses in the city of Sullivan filed suit against the city contending that the city overcharged them for electricity. The businesses offered evidence showing that they had placed the city on notice of the excessive electrical charges and had requested that the city issue a refund for the overcharges that had been previously paid, but the city refused to do so. Although there was conflicting evidence at trial regarding the calculations that supported the claim of the businesses for a refund, the jury returned verdicts in favor of seven of the plaintiffs and against three of them. The plaintiffs who received a favorable verdict filed a motion for prejudgment interest, which the trial court granted. The city appealed and the Court of Appeals affirmed in City of Sullivan v. Truckstop Restaurants, et al, No. ED 83236 (Mo. App. E.D. 2004).

Prejudgment interest under § 408.020, RSMo, is appropriate when the amount that is due is liquidated or readily determinable by computation or by reference to a recognized standard. Exact calculation of a claim is not required for a claim to be considered liquidated. An award of less damages than requested does not prohibit an award of prejudgment interest on the damages awarded. The trial court may be guided by equitable principles of justice and fairness when determining whether to award prejudgment interest.

Although the plaintiffs' expert made several different calculations before reaching the final set of damage computations, he explained that he did so based on additional information that enabled him to refine his original calculations. In Missouri, a claim for damages does not have to be calculated exactly for the damages to be considered liquidated. Had the city promptly provided accurate meters to the plaintiffs after receiving notice from the businesses, the damages would have been easy to ascertain from that date onward. It would be neither fair nor equitable to reward the city for its delay in providing a way to accurately measure the actual damages sustained by the businesses. Viewing the evidence in the light most favorable to the verdict and granting all reasonable inferences therefrom, the damages were sufficiently reasonably ascertainable and the trial court did not err in granting the request for prejudgment interest on the damages awarded by the jury.