For Class Certification, Class Membership Must Be Determinable at the Outset of the Litigation
W. Dudley McCarter
Behr, McCarter & Potter
St. Louis
Brennan and Kimberly Vandyne filed suit against Allied Mortgage Capital Corp., alleging that Allied had violated the Missouri Merchandising Practices Act by misrepresenting charges for third-party services in connection with their loan transaction. The Vandynes sought to certify the suit as a class action. The trial court certified the class, defining it as persons who paid excessive charges for credit reports and other loan-related services due to non-disclosures and false, unfair, deceptive or misleading disclosures by Allied. The Supreme Court of Missouri reversed and remanded the class certification in
Vandyne v. Allied Mortgage Capital Corp.1
“The determination of class certification under Rule 52.08 lies within the trial court’s discretion. State ex rel. Union Planter’s Bank,, N.A. v. Kendrick, 142 S.W.3d 729, 735 (Mo. banc 2004). Appellate review of an order granting class certification is solely for abuse of discretion. Id. A class will not be deemed to exist unless the membership can be determined at the outset of the litigation. A class definition that includes a determination of the merits of the lawsuit is not permitted because the trial court has no authority to conduct an essentially binding preliminary inquiry into ultimate liability issues when it is making the threshold, procedural determination of class membership. Dale v. Daimler Chrysler Corp., 204 S.W.3d 151, 178 (Mo. App. [W.D.] 2006).
“Additionally, including a merit determination in a class definition is problematic because such findings are ‘not accompanied by the traditional rules and procedures applicable to civil trial,’ and such tentative findings, lacking such safeguards, ‘may color the subsequent proceedings and place an unfair burden on the defendant.’ Craft v. Phillip Morris, Inc., 190 S.W.3d 368, 377 (Mo. App. [E.D.] 2005). The class definition in this case contains a legal conclusion that requires the court to resolve a paramount liability question in order to identify class membership. This is an improper merit determination. On remand, the class definition can be cured by eliminating the phrase ‘non-disclosures and false, unfair, deceptive or misleading disclosures’ from the class definition.”2
Moreover, “[i]t is not apparent from the language of the class certification precisely what is or is not encompassed in the term ‘loan-related.’ Absent additional specificity, the question is whether a particular service or fee is ‘loan-related’ can only be reached through an analysis of each individual potential class members’ loan documents. Further, the definition as written presumes that certification as to one fee justifies certification as to all fees, whereas in fact a different factual balance may, or may not, be required as to each fee. This lack of specificity creates an indeterminate class definition that does not comport with the requirement of a definite, ascertainable class. See Craft, 190 S.W.3d at 387. As with the merit determination, this is an issue that may be re-assessed on remand. …”3
Finally, the circuit court did not abuse its discretion in finding that plaintiffs and their counsel can adequately represent the class, even though one of the attorneys is plaintiff’s brother-in-law. “Instead of a blanket rule holding that class attorneys and their relatives can never act as class representatives, Missouri courts utilize a case-by-case approach that vests the circuit court with discretion to determine whether, under the facts of individualized cases, plaintiffs and class counsel can adequately represent the class. Dale v. Daimler Chrysler Corp. 204 S.W.3d 151, 172 (Mo. App. [W.D.] 2006). Under this approach, the circuit court is required to constantly monitor the case to ensure that the interests of the absent parties are being protected. Id., citing Union Planters Bank, S.W.3d at 740.”4
Sex Offender Registration Law Was Retrospective and Unconstitutional
In 2005, R. L. pleaded guilty to attempted enticement of a child. He received a three-year suspended execution of sentence, was placed on probation for five years, and was required to register as a sex offender. In 2006, the Missouri legislature adopted § 566.147, RSMo, which made it a felony for a registered sex offender to reside within 1,000 feet of a school or child-care facility. R. L. had lived at his current residence since 1997, which was within 1,000 feet of a grade school. After the Missouri Department of Corrections informed R. L. that he was subject to prosecution if he did not move, he filed suit for injunctive and declaratory relief. The circuit court found that § 566.147 was an unconstitutional retrospective law with respect to registered sex offenders and the Supreme Court affirmed in R. L. v. State of Missouri Department of Corrections.5
“The Constitutional bar on retrospective civil laws has been a part of Missouri law since this State adopted its first Constitution in 1820. Doe v. Phillips, 194 S.W.3d 833, 850 (Mo. banc 2006). The 1875 constitutional debates note the Constitutional bar on retrospective laws is broader than the ex post facto bars in other states. Id., citing Debates of the Missouri Constitutional Convention 1875, vol. IV at 95 (Isidor Loeb & Floyd C. Shoemaker, eds., State Historical Soc’y of Mo., 1938). In interpreting Missouri’s broad Constitutional prohibition of retrospective laws, this Court established the following framework for analysis:
A retrospective law is one which creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already passed. It must give to something already done a different effect from that which it had when it transpired.
Squaw Creek Drainage District v. Turney, 235 Mo. 80, 138 S.W. 12, 16 (1911).
“In Doe v. Phillips, 194 S.W.3d at 850, the Court applied the foregoing principles to hold that a law requiring registration as a sex offender for an offense that occurred prior to the registration law’s effective date was an invalid retrospective law in violation of Article I, section 13 of the Missouri Constitution. The registration requirement was invalid because when Doe pled guilty, he had no obligation to register and his duty to register stemmed only from a subsequent change in the law. Id.
“The same long-standing principles applied in Phillips apply in this case. As with the registration requirements in Phillips, the residency restrictions at issue in this case impose a new obligation upon R. L. and those similarly situated by requiring them to change their place of residence based solely upon offenses committed prior to enactment of the statute. Attaching new obligations to past conduct in this manner violates the bar on retrospective laws set forth in Article I, section 13.”6
Hospital Must Comply With Its By-Laws, But the By-Laws Do Not Create a Contract Between the Hospital and Its Physicians
Robert Egan, a board-certified general and vascular surgeon for more than 40 years, was a member of the St. Anthony’s Medical Center medical staff. Dr. Egan received a letter from the hospital notifying him that he was being suspended from practicing there. Pursuant to the hospital by-laws, Egan sought a hearing before the hearing committee, which recommended revocation of his privileges. Egan then appealed that recommendation to an appellate committee, which adopted the findings of the hearing committee. The hospital’s board of directors then revoked Egan’s privileges. Egan filed suit alleging that the appellate committee violated the hospital by-laws by hearing additional testimony, rather than making its decision solely on the record made before the hearing committee. The trial court dismissed his action, but the Supreme Court of Missouri reversed and remanded in Egan v. St. Anthony’s Medical Center.7
In Cowan v. Gibson,8 the Supreme Court of Missouri held that decisions of a private hospital regarding staff privileges are not subject to judicial oversight. “In the decades following Cowan, however, forty-six states and the District of Columbia have adopted a limited exception of one kind or another to the general rule of non-review of the staffing decisions of private hospitals.”9 “What also has happened since Cowan, and what now requires a limited departure from it (more so than the shift in the weight of authority), is the implementation of a state regulation, 19 CSR 30-20.021(2)(C) 1-5, promulgated in 1982 by the State Board of Health, which mandates that all Missouri hospitals adopt by-laws governing the physical activity of the medical staff.”10 “As with all rules and regulations duly promulgated by state administrative agencies, this regulation has the force and effect of a statute. State ex rel. Martin-Erb v. Missouri Commission of Human Rights¸77 S. W. 3d 600, 607 (Mo. banc 2002). And, as such, it is an expression of the public policy of this state. Brawner v. Brawner, 327 S.W.2d 808, 812 (Mo. banc 1959). Furthermore, it is implicit under this regulation that hospitals not only have a legal duty to adopt bylaws, but also a corresponding duty to abide by those by-laws.”11
“To be sure, the general rule is that there is no private right of action to enforce a statute or regulation, see e.g. Dierkes v. Blue Shield of Missouri, 991 S.W.2d 662, 668 (Mo. banc 1999), but the cases in support of this rule involve actions for damages. Here, in contrast, Dr. Egan sued for injunctive relief, a less intrusive remedy, seeking only to compel the hospital to follow its own by-laws in the disciplinary proceeding against him.”12 “Given the clear expression of public policy from the regulation, and consistent with the overwhelming weight of authority, this court holds that Dr. Egan, as an aggrieved member of the medical staff, may bring an action in equity for injunctive relief to compel the hospital to substantially comply with its own bylaws before his privileges may be revoked.”13
“That is not to say, however, that the bylaws create, or are themselves, an enforceable contract between doctors and hospitals, the breach of which gives rise to an action for damages. As the court of appeals correctly held in Zipper [v. Health Midwest, 978 S.W.2d 398, 415-417 (Mo. App. 1998)], a hospital’s duty to adopt and conform its actions to medical staff by-laws as required by the regulation is a preexisting duty, and a preexisting duty cannot furnish consideration for a contract. A hospital’s obligation to act in accordance with its bylaws, in other words, is independent of any contractual obligation the hospital may have to the doctor.
“Finally, and despite this court’s holding, it must be emphasized that the purpose of the regulation is to implement a system of medical staff peer review, rather than judicial oversight, and it is clear that final authority to make staffing decisions is securely vested in a hospital’s governing body with advice from the medical staff. This is so because the notion underlying the internal governance structure required by the regulatory scheme is that medical professionals are best qualified to police themselves.”14 “This Court, then, will not impose judicial review on the merits of a hospital’s staffing decisions, but will act only to ensure substantial compliance with the hospital’s bylaws.”15
State Entitled to Sovereign Immunity for Death of Motorist Resulting From Debris That Was Thrown From Highway Overpass
Vicey Tucker filed suit against the Missouri Highways & Transportation Commission (MHTC) for the wrongful death of her daughter, Ebony. Ebony died after being struck by debris that was thrown from an overpass on Interstate 70 at the time the car Ebony was in drove under that overpass. The overpass was not enclosed and did not have protective screening. Tucker introduced evidence that the overpasses immediately to the east and to the west of this overpass were enclosed and that MHTC had notice of youths in this vicinity throwing material from overpasses onto the traffic below. The trial court granted summary judgment to MHTC and the Court of Appeals affirmed in Tucker v. Missouri Highways & Transportation Commission.16
The state has waived sovereign immunity for wrongful death actions in cases involving the dangerous condition of public property under § 537.600, RSMo. “‘To state a claim under the dangerous-condition exception, a plaintiff must allege facts that show: (1) a dangerous condition of public property, (2) that the injury directly resulted from the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of harm incurred, and (4) that a public employee negligently created the condition, or the public entity had actual or constructive notice of the condition.’”17 “‘Courts strictly construe the waiver of sovereign immunity.’”18
“The ‘directly resulted from’ element is the central concern”19 in this case. “The direct result element is synonymous with proximate cause.”20 “‘The practical test of proximate cause is generally considered to be whether the negligence of the defendant is that cause or act of which the injury was the natural and probable consequence.’”21 “‘To the extent the damages are surprising, unexpected, or freakish, they may not be the natural and probable consequences of a defendant’s actions.’”22 As held in Dierker, “even assuming that the overpass was in dangerous condition, that condition did not directly cause the death. [The] death was not the natural and probable consequence of the alleged condition of the overpass.”23
Spouse of Employee Who Died After Refusing Blood Transfusion on Religious Grounds is Entitled to Workers’ Compensation Death Benefits
Floyd Wilcut was a truck driver severely injured in an accident that occurred in the scope of his employment. He was conscious and able to make decisions upon admission to the hospital. He made it clear that, as a Jehovah Witness, he would not accept a blood transfusion. This decision was affirmed by his family both before and after he lost consciousness. He died seven days after the accident. His spouse asserted a claim for death benefits under the workers’ compensation law. At the hearing, doctors testified that Wilcut’s death was preventable if he had accepted the transfusion. A Jehovah’s Witness church elder testified that refusal of a blood transfusion is a tenet of the faith and that Wilcut followed those tenets. The administrative law judge found that Wilcut’s refusal of the blood transfusion was not unreasonable and that the spouse was entitled to death benefits. The Labor & Industrial Relations Commission disagreed and found that the refusal was unreasonable. The Court of Appeals reversed the commission, however, in Wilcut v. Innovative Warehousing,24 and found that the refusal of the blood transfusion was not unreasonable.
There is no Missouri case addressing “the reasonableness of an employee’s decision to forego treatment … based on religious beliefs.”25 “At the time of the accident, … the Workers Compensation Law was to be construed liberally.”26 Thus, it is to be interpreted “with a view to public welfare and for the purpose of enabling more employees to be eligible for compensation for injuries arising out of and in the course of employment.”27 “Section 287.140.9 [of the Workers Compensation Law] states that ‘[N]othing in this chapter shall prevent an employee being provided treatment for his injuries by prayer or spiritual means, if the employer does not object to the treatment.’”28
“[T]his section does show that the legislature contemplated that religious beliefs might impact an employee’s decision-making on what treatment to undertake. Necessarily, if section 287.140.5 is to be read harmoniously and liberally construed, sincerely-held religious beliefs must be considered by the Commission.”29
“[T]he Commission failed to adequately accommodate Employee’s religious beliefs in its decision.”30 The decision of the Commission indicates that “a religious reason, no matter how strongly held, would not be enough to justify compensation under § 287.140.5. In determining what was unreasonable, it relied not only on the question of whether an employee gravely injured in a work-related accident had refused treatment that likely would have benefited him, but also on its conclusions that the Employee could have asked for atonement for his sins.”31 “The Commission’s decision was not supported by competent and substantial evidence. The statutory scheme dictates that religious beliefs be liberally considered and we find that Employee invoked his strong and sincerely held religious beliefs against a blood transfusion. This refusal was not unreasonable in light of his beliefs, and Dependent is owed death benefits under the Workers Compensation Law.”32
The dissent commented that Mr. Wilcut would have survived had he received a blood transfusion and concluded that the commission had reached a factual conclusion that the refusal of the transfusion was unreasonable. The commission reached the proper conclusion under the facts before it.
Malicious Prosecution Verdict for $400,000 and Punitive Damage Award of $4 Million Were Both Supported by Substantial Evidence
Jenny Hampton reported to the Olathe, KS Police Department that her 1990 Toyota was stolen. She also filed a claim with her insurance company, State Farm Mutual Automobile Insurance Company. A few days later, the vehicle was found burned in a Kansas field. State Farm denied Hampton’s claim and Hampton filed suit against State Farm. While Hampton’s suit was pending, State Farm contacted the National Insurance Crime Board and requested that Hampton’s file be referred to the district attorney in Johnson County, Kansas. Hampton was later charged with insurance fraud, but was found not guilty by the jury. Hampton then filed suit against State Farm in Jackson County, Missouri, and sought damages for malicious prosecution. After a two-week trial, the jury awarded Hampton $400,000 on her malicious prosecution claim and the Court awarded Hampton $4 million in punitive damages. The Missouri Court of Appeals for the Western District affirmed both judgments in Hampton v. State Farm Mutual Automobile Insurance Company.33
“[T]here was substantial evidence, viewing all evidence and inferences in favor of the plaintiff and disregarding the contrary evidence, that State Farm initiated or caused Plaintiffs to be prosecuted, that there were no reasonable grounds to prosecute, and that State Farm acted with malice.”34 “‘To establish that the defendant initiated the criminal proceeding, Kansas case law is clear that the defendant must have acted affirmatively in instigating or participating in the prosecution.’”35 Here, “Plaintiff presented substantial evidence to show that State Farm initiated or caused the prosecution against them.”36 “[T]here was also substantial evidence … from which a jury could reasonably find that State Farm did not have reasonable grounds to initiate the prosecution.”37
“‘[M]alice is not restricted to personal hatred, spite or revenge. It is enough if the prosecution was instituted from any wrongful or improper motive. The law contemplates that criminal prosecutions shall only be brought to punish crime and to bring criminals to justice. When a proceeding is intentionally instituted to further a private or wrongful purpose, it is, in law, a malicious prosecution.’”38 “‘The existence of malice or wrongful purpose is ordinarily a question of fact for the jury.’”39 “The Plaintiff presented substantial evidence regarding all the elements of malicious prosecution …[and t]he trial court did not error in submitting the case to the jury.”40
Under Kansas law, “[o]nce a jury determines that punitive damages are warranted, it is then up to the judge to determine the amount of punitive damages to be awarded.”41 “As applied to this case, [that statute] limits the amount the Judge can award to five million dollars. Plaintiff provided substantial evidence to support the determination that State Farm acted maliciously and the trial court did not err in submitting that issue to the jury.”42
“‘In Kansas, punitive damages are awarded to punish the wrongdoer for malicious, vindictive or willful and wanton invasion of another’s rights, with the ultimate purpose being to restrain and deter others from the commission of similar wrongs.’”43 “‘Punitive damages are not given upon any theory that the plaintiff has any just right to recover them, but are given only upon the theory that defendant deserves punishment for his or her wrongful acts and that it is proper for the public to impose them upon the defendant.’”44
“‘Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of the reprehensibility of the defendant’s conduct.”’45 ‘“Infliction of economic injury, especially when done intentionally through affirmative acts of misconduct, or when the target is financially vulnerable, can warrant a substantial penalty.”’46 “In this case, it is clear that the Plaintiffs were financially vulnerable, especially considered in relation to State Farm. State Farm’s misconduct … is clearly reprehensible.”47 “[B]ased on the egregious acts committed by State Farm, the amount of punitive damages was reasonable.”48
Juror Nondisclosure Did Not Require a New Trial Because Question Was Not Clear in Context of the Questions Being Asked; Trial Counsel Urged to Investigate Nondisclosure by Jurors Before Submission of the Case
William McBurney filed a wrongful death claim against Dr. Jeffrey Cameron, alleging that medical negligence by Dr. Cameron caused the death of McBurney’s wife. Mrs. McBurney died nine days after Dr. Cameron performed surgery to repair a small ventral hernia near her navel. The suit alleged that Dr. Cameron perforated Mrs. McBurney’s small bowel during the surgery, allowing post-operative leakage into her abdomen, resulting in conditions that led to her death. During voir dire, McBurney’s counsel asked the jury panel whether anyone had ever made a claim for personal injury. Venireperson Marchant commented about two personal injury matters involving his brothers. The panel was then asked whether anyone had been a defendant in a claim or lawsuit. Marchant did not respond and served as fore-person of the jury. After a jury verdict for defendant, McBurney’s counsel checked the civil litigation records and found that Marchant had been sued by three different business suppliers. At the hearing on
McBurney’s motion for new trial, Marchant acknowledged he had been sued because his business could not pay its suppliers but further testified that he did not think of it in connection with the questions that were asked. The trial court found that there was no intentional nondisclosure and denied McBurney’s motion for new trial. The Court of Appeals affirmed in McBurney v. Cameron, et al.49
The court first commented on the issue of timeliness in researching the litigation history of those chosen to serve on a jury. “It would be realistic for an attorney to send a member of his or her clerical staff to any computer, at any time of day or night, to research the civil litigation records before submission of a case, rather than waiting until an adverse verdict to do so.”50 “The issue of timeliness was raised in Brines v. Cibis, 882 S.W.2d 138 (Mo. banc 1994).”51 “The Court, at that time, declined to adopt defendant’s argument that an issue about litigation history must be raised before submission.”52 “[T]he issue may not necessarily be settled forever in view of the technological advances in the 13 years since Brines. The Missouri court system now has an automated case records service, CaseNet, by which civil litigation history can be readily accessed by any computer at any time. This was not true at the time the Court considered the issue in Brines. At some point counsel (or perhaps a court) will again raise the issue of timeliness and waiver, at least with regard to cases that extend beyond a short time. We encourage counsel to make such challenges before submission of the case whenever practicable.”53
“[I]ntentional nondisclosure can be found only if a clear question is asked on voir dire.”54 “The burden of demonstrating from the record that the question was clear and unambiguous is logically on the party who is seeking a new trial, especially when that party’s counsel was the one who framed the question in the first place.”55 A “question is clear only if ‘a lay person would reasonably conclude that the undisclosed information was solicited by the question.’”56 “If a reasonable [person] could have understood the question’s intent, that fact is not sufficient by itself to cause us to declare that the question was clear.”57 “It is only after it is objectively determined that the question was reasonably clear in context that we consider, under an abuse of discretion standard, whether the trial court abused its discretion in deciding whether nondisclosure was unintentional.”58
“Here, … after early comments about personal injury matters, there was never a definitive statement broadening the scope of the inquiry.”59 “In this case, the context was extensively involved with questions about personal injury litigation and claims.”60 The court cannot separate the question about “being a defendant” from its context of personal injury claims.
“[W]e agree with the trial court that a venireperson could reasonably have understood that counsel was asking exclusively about injury claims. We do not agree with appellant that a reasonable venireperson would have understood that counsel’s intention was to ask about all kinds of claims and cases.”61
A concurring opinion stated that the record does not compel the conclusion that a reasonable juror could not have misunderstood that the inquiry was about “all claims and lawsuits,” as opposed to only those involving personal injury. The dissenting opinion, however, commented that the question asking whether anyone had been a defendant in a claim or lawsuit was clearly asked and that the venireperson’s failure to disclose the prior litigation was unreasonable and, therefore, intentional.
Warning to All VFW Halls: Stick to Bingo!
Poplar Bluff VFW Post 6477 held a bingo license for many years that had been granted by the Missouri Gaming Commission. In 2001, it was placed on probation and paid a fine for placing illegal gambling machines in its building. In 2003, the Missouri Highway Patrol again inspected the VFW Post and found four gaming machines in the bar: two fruit bonus machines, one cherry machine and one super poker machine. At the hearing on the revocation of its license, the Highway Patrol officer who inspected the building and seized the machines testified that the night he entered the building, one of the VFW members present told him, “You are not going to like what you find.” The patrolman testified that the VFW bartenders admitted to him they made monetary payoffs to the players on the machines.
The machines that were seized had multiple-coin features and multiple-play options and none of the machines involved the use of skill. The games offered on the machines were casino-type machines that had a fixed payoff; they had a “knockoff” feature by which the bartender could use a device kept behind the bar to reset the credits on the machine for each player. The patrolman testified that, based upon his experience and training, all of the machines he seized were illegal gambling devices. The circuit court affirmed the decision of the Administrative Hearing Commission revoking the bingo license and the Court of Appeals affirmed in Veterans of Foreign Wars Post 6477 v. Missouri Gaming Commission.62
‘“[A] person engages in “gambling” when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome.”’63 “Thus, the statutory definitions ‘show that gambling includes playing games wherein (1) players stake or risk something of value, (2) chance is a material factor, and (3) successful play is rewarded by something of value.”’64 “[T]he record contains direct evidence that payouts were made for play on the machines.”65 “The … evidence was sufficient to support a finding that players would receive something of value for successful game play and that the machines were not merely used for entertainment purposes.”66 ‘“[A] claim that the repeated insertion of a coin or many coins into a machine to watch objects, numbers or cards appear at random in display windows, each operation completed in five seconds or less, could be “amusing” to even a grade school boy stretches one’s imagination.’”67
Evidence of Stalking Supported Order of Protection
S. A. filed a petition against Thomas Miller requesting an order of protection under the Adult Abuse Act. At trial, S. A. testified about numerous instances over the preceding three months where Miller had appeared at various parks, a restaurant, a store, and the parking lot of her workplace and persistently stared at her. She testified that she was afraid of Miller and felt that she was in danger. She also testified that while exercising on the walking trail near her home, Miller repeatedly rode his bike or jogged past her, would disappear for a short while, and then ride or jog past her again, staring at her while doing so. Miller made her so nervous, she stopped using the walking trail. The trial court granted a full order of protection and the Court of Appeals affirmed in S. A. v. Miller.68
“A trial court’s grant of a full order of protection must be supported by substantial evidence.”69 ‘“Substantial evidence is competent evidence from which the trier of fact could reasonably decide the case.”’70 ‘“Because there is real harm that can result in abusing the Adult Abuse Act and its provisions, including the stigma that may attach to a respondent who is ultimately labeled a “stalker,” trial courts must exercise great care to ensure that sufficient evidence exists to support all elements of the statute before entering a full order of protection.’”71
“Section 455.020 RSMo. ‘provides that any adult who has been the victim of stalking may file a petition for protection alleging such stalking.’”72 ‘“Stalking is when an adult purposely and repeatedly engages in an unwarranted course of conduct that causes alarm to another person when it is reasonable in that person’s situation to have been alarmed by the conduct.’”73 “Thus, in order to be entitled to a full order of protection, S.A. was required to present substantial evidence that Miller: ‘(1) purposely and repeatedly; (2) engaged in an unwanted course of conduct; (3) that caused alarm to [S.A.]; (4) when it was reasonable in [her] situation to have been alarmed by the conduct.’”74 ‘“Section 455.010(10) requires that conduct cause “alarm” to another person in order for the conduct to constitute stalking.’’’75 ‘“Alarm’ means to cause fear of danger of physical harm.”76
“S.A. specifically testified at trial that Miller’s actions had frightened and alarmed her and that she felt threatened, scared, and feared physical harm from [him]. She stated that he seemed to be getting bolder in his behavior toward her and indicated her fear that it might escalate to physical harm. This evidence clearly supported a finding that S. A. was subjectively fearful that Miller might cause her physical harm. The record also supported a finding that S.A.’s fear was reasonable.”77 A strange man, who she did not know, “regularly and inexplicably appeared in places that she was and persistently stared at her.”78 “It is objectively reasonable for a woman to be alarmed under those circumstances and to believe that she might be in danger of physical harm from the individual.”79 “Under the evidence presented in this case, the trial court could certainly conclude that Miller had engaged in a pattern of following S.A. and/or exposing her to unwanted contact with him. Furthermore, the Court was not required to accept any of his testimony regarding his purpose or motives as credible.”80
Footnotes
1 No. SC88273 (Mo. banc 2008).
2 Id.
3 Id.
4 Id.
5 No. SC88644 (Mo. banc 2008).
6 Id.
7 No. SC88493 (Mo. banc 2008).
8 392 S.W.2d 307, 309 (Mo. 1965).
9 Egan, No. SC88493 (Mo. banc 2008).
10 Id.
11 Id.
12 Id.
13 Id.
14 Id.
15 Id.
16 No. WD 76892 (Mo. App. W.D. 2008).
17 Id., quoting State ex rel. Missouri Highway & Transportation Commission v. Dierker, 961 S.W.2d 58, 60 (Mo. banc 1998).
18 Id. at 61.
19 Id.
20 Id. at 60.
21 Id., quoting Krane v. U.S. Truck Co., 787 S.W.2d 708, 710 (Mo. banc 1990).
22 Id., quoting Callahan v. Cardinal Glennon Hospital, 863 S.W.2d 852, 865 (Mo. banc 1993).
23 Id., quoting Dierker at 61.
24 No. ED 88247 (Mo. App. E.D. 2008).
25 Id.
26 Id.
27 Id., citing State ex rel. Doe Run Co. v. Brown, 918 S.W.2d 303, 307 (Mo. App. E.D. 1996), overruled on other grounds by Farmer v. Barlow Truck Lines, Inc., 979 S.W.2d 169, 171 (Mo. banc 1998).
28 Section 287.140.9, RSMo.
29 See Wilcut.
30 Id.
31 Id.
32 Id.
33 No. W.D. 66791 (Mo. App. W.D. 2008).
34 Id.
35 Id., quoting Wright v. Montgomery Ward & Co., 814 F.Supp. 986, 990 (D. Kan. 1993).
36 Id.
37 Id.
38 Id., quoting Foltz v. Buck, 131 P. 587, 588 (Kan. 1913).
39 Id., quoting Nelson v. Miller, 607 P.2d 438, 445 (Kan. 1980).
40 Id.
41 Id., citing § 60-3702, Kansas Revised Statutes.
42 Id.
43 Id., quoting Cerretti v. Flint Hills Rural Elec. Co-Coop. Ass’n, 837 P.2d 330, 344 (Kan. 1992).
44 Id., quoting Hayes Sight & Sound, Inc. v. ONEOK, Inc., 136 P.3d 428, 452 (Kan. 2006).
45 Id., quoting BMW of North America, Inc. v. Gore, 517 U.S. 559, 575 (1996).
46 Id. at 576.
47 Id.
48 Id.
49 No. WD 65679 (Mo. App. W.D. 2008).
50 Id.
51 Id.
52 Id., citing Brines v. Cibis, 882 S.W.2d 138 (Mo. banc 1994).
53 Id.
54 Id., citing Wingate v. Lester E. Cox Med. Ctr., 853 S.W.2d 912, 916 (Mo. banc 1993).
55 Id.
56 Id., quoting Keltner v. K-Mart Corp., 42 S.W.3d 716, 726 (Mo. App. E.D. 2001).
57 Id., citing Ewing v. Singleton, 83 S.W.3d 617, 621 (Mo. App. W.D. 2002).
58 Id.
59 Id.
60 Id.
61 Id.
62 No. WD 68118 (Mo. App. W.D. 2008).
63 Id., quoting § 572.010(4), RSMo.
64 Id., quoting Thole v. Westfall, 682 S.W.2d 33, 36-37 (Mo. App. E.D. 1984).
65 Id.
66 Id., citing Chandler v. Hemeyer, 49 S.W.3d 786, 793 (Mo. App. W.D. 2001).
67 Id., quoting Thole at 38.
68 No. WD 67760 (Mo. App. W.D. 2008).
69 Id., citing McGrath v. Bowen, 192 S.W.3d 515, 517 (Mo. App. E.D. 2006).
70 Id., quoting Leaverton v. Lasica, 101 S.W.3d 908, 911 (Mo. App. S.D. 2003).
71 Id., quoting McGrath at 517.
72 Id.
73 Id., quoting § 455.010(10), RSMo.
74 Id., quoting Glover v. Michaud, 222 S.W.3d 347, 352 (Mo. App. S.D. 2007).
75 Id., quoting George v. McLuckie, 227 S.W.3d 503, 507 (Mo. App. W.D. 2007).
76 Id., quoting § 455.010(10)(c), RSMo.
77 Id.
78 Id.
79 Id.
80 Id.