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

Because of a custody dispute that her son was having with the mother of his daughter, Carolyn Kenney went with her son and her granddaughter to a friend's house at the Lake of the Ozarks, where they intended to stay until the custody hearing in court. Her son called his daughter's mother to tell her that their daughter was with him, but he did not tell her where they were. The mother of the girl reported her daughter as missing to the Kansas City Police Department, and also placed 100 missing child posters around the Kansas City area. The posters contained a photograph of Carolyn Kenney and her granddaughter. One of the posters was displayed at the Wal-Mart in Lee's Summit and was displayed there for approximately 10 days. It remained on display several days after Ms. Kenney's granddaughter was returned to the custody of her mother. Ms. Kenney filed a defamation suit against Wal-Mart. At trial, she testified that she was embarrassed, shocked and mad about the display of the missing child poster. Although she had not actually seen the poster while it was on display at Wal-Mart, several unidentified people told her that they saw the poster. Ms. Kenney did not seek medical treatment for her embarrassment or shock. The jury awarded her $33,750 in actual damages and $392,083 in punitive damages. The Supreme Court of Missouri reversed the judgment, however, and remanded the case for a new trial in Kenney v. Wal-Mart Stores, Inc., No. SC 84770 (Mo. banc 2003).

Missouri, as well as several other states, requires a plaintiff to prove reputational harm before allowing recovery for other related injuries, such as emotional distress, in defamation cases. Here, it is evident that Ms. Kenney's proof of actual reputational injury was tenuous at best. Her testimony consisted only of conclusory statements that she felt embarrassed, shocked and mad because of the poster. She did not seek medical treatment or psychiatric or psychological counseling as a result of the poster. There was little, if any, evidence of quantifiable professional or personal injury. While Ms. Kenney's proof was, at best, tenuous, an appellate court should reverse a plaintiff's verdict without remand only if it is persuaded that the plaintiff could not make a submissible case on retrial. The preference is for reversal and remand. Though Ms. Kenney faces a substantial obstacle in meeting her burden of proof on retrial, this court cannot say that it is impossible for her to present a submissible case. The judgment is reversed and the case remanded for a new trial.

Expert Testimony is Admissible on Scientific, Technical or Other Specialized Areas if it Will Assist the Trier of Fact

The State Board of Registration for the Healing Arts filed a disciplinary complaint alleging that Dr. Edward McDonagh endangered the health of his patients through the use of EDTA chelation therapy. After a trial before the Administrative Hearing Commission, the commission denied the board's complaint. The board appealed, asserting that the commission improperly admitted expert testimony offered on behalf of Dr. McDonagh. The Court of Appeals reversed in State Board of Registration for the Healing Arts v. McDonagh, No. W.D. 60501 (Mo. App. W.D. 2003), finding that the expert testimony was admissible but insufficient to prove that chelation therapy met the standard of care under Missouri law.

Section 490.065, RSMo, allows the admission of expert testimony if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue. The statute requires the testimony to be based on facts or data reasonably relied upon by experts in the field, but it does not require that the expert's principles or techniques be widely accepted in the relevant scientific community, as mandated by the modified Frye rule. Since the enactment of this statute, the Supreme Court of Missouri has declined to directly decide whether the statute supersedes application of the Frye rule in the same manner that Daubert changed the admissibility requirements for expert testimony in federal courts. All three districts of the Court of Appeals have expressed confusion about the applicable standard and the absence of a clear directive that Frye has been overruled. There is still uncertainty about whether § 490.065 supplants the Frye rule in civil cases and whether an evaluation of expert testimony under § 490.065 requires consideration of Frye or the Daubert factors. There has been no consistent standard applied to determine the admissibility of scientific evidence in civil cases. Here, the commission determined that the expert testimony in support of chelation therapy was admissible under § 490.065. Given the Supreme Court's most recent directive to follow § 490.065 (without any mention of Frye), there was no error in the commission's application of the statute. Regardless of whether the evidence satisfied Frye, it was admissible upon the commission's determination that the provisions of § 490.065 were met. Dr. McDonagh and his expert testified that chelation therapy provides relief to some people and causes physical harm to no one. This testimony was insufficient, however, to establish that chelation therapy was consistent with the degree of skill or learning ordinarily used by physicians treating vascular disease in geriatric patients. Thus, there was no substantial evidence that chelation therapy met the standard of care under Missouri law.

Expert Testimony Must Be Based on Reliable Information

The Archdiocese of St.Louis filed suit to establish a right-of-way by necessity over property in the Kensington Place subdivision. The trial court entered a judgment establishing the private road over the defendant's land and appointed commissioners to assess the damage. The Kensington Place subdivision filed exceptions to the commissioner's report and requested a jury trial. At trial, the appraiser called by Kensington Place testified that, in his opinion, the property taken by the archdiocese had a value of $300,000. He further testified that his valuation was based on the comparable sales approach, but he could not identify any comparable sales. The archdiocese moved to strike his testimony, which was denied. The jury entered a verdict for $300,000 in damages to Kensington Place. The Court of Appeals reversed, however, in Justin F. Rigali v. Kensington Place Homeowners' Association, No. E.D. 81417 (Mo. App. E.D. 2003).

A trial court has broad discretion regarding the admission of expert testimony under § 490.065 RSMo. An expert's opinion must, however, be founded upon substantial information, not mere conjecture or speculation, and there must be a rational basis for the opinion. The restriction on speculative testimony by expert witnesses is not a technical rule of evidence, but rather a needed protection of evidence of improper measures of damages being presented to the jury. The potential significant impact on a non-expert jury of expert testimony in the complex field of land appraisal seems to warrant extreme caution in the admission of such testimony. An expert testifying on the value of property in a condemnation proceeding may base his opinions upon his investigation and his inquiries concerning other sales; however, he should make careful inquiry into the facts concerning similar sales upon which he bases his opinion as to land values. Here, the defendant's expert failed to testify as to the facts or data upon which he based his opinion. He failed to give any comparable sales of property to support his opinion that the property was valued at $300,000. As a result, that opinion was not based on information reasonably relied upon by experts in his field and, therefore, was unreliable. Therefore, evidence of improper measure of damages was presented to the jury, constituting a substantial injustice. The judgment is reversed and the case remanded for a new trial.

Judgment Debtor May Invoke Fifth Amendment on Judgment Debtor's Examination

Savannah Place Ltd. obtained a judgment against Charles and Sandra Heidelberg on personal guaranties they had signed. In its efforts to collect on the judgment, Savannah filed a motion to conduct a judgment debtor's examination of the Heidelbergs. The trial judge granted that motion and directed the Heidelbergs to appear for their examination with documents that were requested of them by Savannah. The Heidelbergs filed motions to quash production of the documents and for a protective order, raising their privilege against self-incrimination. Savannah provided a letter from the county prosecutor granting use immunity to the Heidelbergs as to any statement made by them at the judgment debtor's examination. The trial court denied the Heidelbergs' motions to quash and for protective order, but the Court of Appeals issued a writ of prohibition in State of Missouri ex rel. Heidelberg v. Holden, No.25147 (Mo. App. S.D. 2003).

The privilege against self-incrimination is guaranteed by the Fifth Amendment of the United States Constitution and ArticleI, Section19 of the Missouri Constitution. The privilege extends to judgment debtors examined pursuant to § 513.380 RSMo. Thus, a judgment debtor who invokes the privilege against self-incrimination cannot be compelled to answer a question the answer to which may tend to incriminate him. The privilege extends not only to refusing to answer the question asked, but also to refusing to explain how the answer might incriminate the witness. Once the witness invokes the right against self-incrimination, a rebuttable presumption arises that the answer to the question posed might tend to incriminate him. The party questioning the witness may rebut the presumption by demonstrating that the answer to the question posed cannot possibly tend to incriminate the witness. The trial court can compel the witness to answer the question only after it finds, as a matter of law, that the witness's response to the question cannot possibly tend to incriminate the witness.

The privilege against self-incrimination also applies to discovery because a document in the possession of a witness is barely distinguishable from requiring testimony when the facts are within the knowledge of the witness. Here, once the Heidelbergs asserted their privilege against self-incrimination, a presumption arose that their answers would tend to incriminate them. Savannah Place presented no evidence to rebut that presumption, and the trial court did not make any findings that the answers could not possibly have the tendency to incriminate the Heidelbergs. Moreover, because of the vague wording of the immunity granted by the county prosecutor, the grant of immunity was not co-extensive with the protection afforded by the privilege against self-incrimination. Thus, the grant of use immunity was not sufficient to overcome the Heidelbergs' privilege against self-incrimination.

Trial Court Must Make Findings If Properly Requested

Dr. Roger Berlin provided psychiatric services for clients referred to him by William Pickett, an attorney. In addition, Berlin testified at depositions and trials in connection with personal injury lawsuits brought by Pickett's clients. Berlin billed Pickett for his services on an open account. After Pickett discontinued paying Berlin, Berlin filed suit against Pickett seeking recovery of $55,000. Prior to the start of the trial, Pickett's counsel requested findings of fact and conclusions of law. The trial court granted Pickett's motion for judgment at the close of Berlin's case, but did not make any findings of fact or explain the grounds for its decision. The Court of Appeals reversed, however, in Berlin v. Pickett, No. W.D. 60644 (Mo. App. 2003).

The trial court's failure to make findings of fact, as required by Rule 73.01(c), makes a remand necessary. Though Pickett requested findings of fact and conclusions of law, that is the same as a request for the trial court to explain its decision or state the grounds for the decision. Without knowing the grounds for the trial court's judgment, the appellate court cannot provide meaningful review. Here, the request for findings was deficient because it did not clearly and unequivocally specify the controverted fact issues, but this does not mean that the trial court had no obligation to give the reasons for its decision.

Normally, piggybacking on an opponent's request, as Berlin has done here, is impermissible. In this case, however, it would have been redundant for Berlin to make the request, since the trial court had granted Pickett's request for findings. Moreover, the request for findings is not solely for the benefit of the movant. Without the basis for the trial court's judgment, the appellate court would be forced into a guessing game. Thus, where the trial court does not give the grounds of its decision, even though properly and timely requested by a party under Rule 73.01 and acknowledged by the trial court, the non-moving party can raise the point on appeal. The judgment is remanded to the trial court for it to give the grounds of its decision as required by Rule 73.01.

Defamation Claim By Public Figure Requires Showing of Malice

Chad and Terri Sigafus were musicians who performed and sold tapes of their music at a gospel gathering event near Branson, Missouri. The St.Louis Post-Dispatch published an article on the event, which was sponsored by the Christian Identity Movement. The article stated that the Christian Identity Movement was comprised of white supremacists and anti-Semites and identified Chad and Terri Sigafus as affiliated with the movement. The Sigafuses filed a defamation action against the St.Louis Post-Dispatch. The newspaper filed a motion for summary judgment, contending that the Sigafuses were public figures and that there was no evidence of actual malice. The trial court granted the motion for summary judgment and the Court of Appeals affirmed in Chad and Terri Sigafus v. St.Louis Post-Dispatch, LLC., No. E.D. 81268 (Mo. App. E.D. 2003).

If the subject of an article is a public figure, the author is protected by the First Amendment from liability for damages for defamation, unless the defamatory statements were published with actual malice – that is, with knowledge that the statements were false, or with a reckless disregard as to whether they were true or false. Here, the Sigafuses were nationally known recording artists who had produced approximately 15 albums. Their music had been reviewed in many magazines and they had provided interviews to many newspapers and radio stations. They regularly performed during events sponsored by the Christian Identity Movement. The evidence projects a picture of people who commanded sufficient continuing public interest and had sufficient access to the means of counter-argument to be able to expose through discussion the falsehood and fallacies of the defamatory statements. The Sigafuses were limited purpose public figures for purposes of the alleged libel.

Moreover, the Sigafuses presented no evidence that the St.Louis Post-Dispatch knew of the inaccuracy of the article at the time it was published. This showing is a requirement for actual malice. Negligence is constitutionally insufficient to show the recklessness that is required for a finding of actual malice. Based on their sources of information and personal observations, the authors of the article believed when they published the article that the Sigafuses were affiliated with the Christian Identity Movement.

Secured Party Must Prove Commercially Reasonable Sale of Collateral

During April of 1998, Citizens National Bank loaned Thomas Robertson $3,328 so that he could purchase a 1991 Plymouth. Robertson defaulted on the loan and the bank repossessed the vehicle. The bank mailed a notice of default to Robertson, advising him that the vehicle was repossessed and that it would be sold at a private sale more than 20 days after the date of the letter, if Robertson had not redeemed the vehicle by paying the amount due. After the 20 days expired, the bank sold the vehicle for $200 and filed suit against Robertson to recover the deficiency of $3,550. At trial, a bank officer testified that the car had damage on its left fender, and had 106,000 miles on it. The officer did not know, however, the method or manner of sale, where it took place, or to whom the vehicle was sold. The trial court granted a deficiency judgment in the bank's favor, but the Court of Appeals reversed in Citizens National Bank v. Robertson, No. E.D. 80858 (Mo. App. E.D. 2003).

Section 400.9-504, RSMo, governs a secured party's right to dispose of collateral after a debtor has defaulted. To obtain a deficiency judgment, the secured party must prove the commercial reasonableness of the sale of the collateral. The purpose of the statute is to encourage the secured party to seek the most advantageous resale price and thus reduce the possibility and amount of any deficiency. The party seeking a deficiency judgment bears the burden of proving compliance with the statutory requirement of commercial reasonableness. This is because the secured party has superior knowledge of the facts surrounding the sale and is the moving party in a deficiency action. In keeping with Missouri's policy requiring strict compliance for the debtor's protection, the secured party's failure to prove the sale was commercially reasonable precludes it from obtaining a deficiency judgment. Here, the bank offered insufficient evidence to establish the commercial reasonableness of the sale of the vehicle and it was not entitled to a deficiency judgment.

Trial Court Abused Its Discretion in Dismissing Case With Prejudice for Failure to Prosecute

Frederick Peet filed suit against Cecelia Randolph seeking specific performance of a real estate contract. Randolph was granted summary judgment, but the Court of Appeals reversed and remanded the case for trial. On remand, after several months of inactivity, the trial court sent a notice scheduling a dismissal hearing. After receiving the court's dismissal hearing notice, Peet's attorney filed a request for trial setting. At the dismissal hearing, the trial court dismissed the case for failure to prosecute. The trial court's dismissal was recorded as a docket-sheet entry, but was not denominated a judgment, nor was it signed by the judge. Thereafter, Randolph's attorney filed a motion to amend, requesting that the dismissal be made with prejudice. The trial court granted that motion, and entered a judgment dismissing the case with prejudice. The Court of Appeals reversed in Peet v. Randolph, No. E.D. 80793 (Mo. App. E.D. 2003).

First, the court held that the trial court never lost jurisdiction after the first order of dismissal, since that was an interlocutory order and the case remained pending before the trial court after that order. The appellate court then held, however, that the trial court abused its discretion in converting the dismissal to one with prejudice. Courts have the inherent power, in the exercise of sound judicial discretion, to dismiss a case for failure to prosecute with due diligence. Here, however, the plaintiff's actions in prosecuting the case are hardly comparable to the substantial delays seen in cases that have been properly dismissed for failure to prosecute. While trial courts must be able to control their dockets, the court's discretion to dismiss a case for failure to prosecute is to be exercised in conformity with the spirit of the law and in a manner that serves the ends of substantial justice. As a matter of policy, Missouri law favors the disposition of cases upon the merits, when possible. This is because the purpose of all courts is to do justice, and justice is best served when all litigants have a chance to be heard.

Denial of Sign Permit by City Board of Adjustment Was Supported by Competent and Substantial Evidence

HHC Medical Group applied to the City of Creve Coeur for a sign permit to install an exterior wall identification sign for the west wing of the medical office building it occupied. In its application, HHC stated that the west wing was a freestanding building and therefore entitled to its own sign under the city's zoning ordinance. The city denied HHC's application and HHC appealed to the board of adjustment. During the hearing before the board, HHC presented evidence that the west wing was connected to the other wings only by an expansion joint and that it was structurally a separate building. The city staff testified that, when the wing was constructed, it was described as an expansion of the existing building and the city approved the new wing as an addition to the existing building. The city board of adjustment denied HHC's application by a 2-to-2 vote. The trial court upheld the board of adjustment, as did the Court of Appeals in HHC Medical Group v. City of Creve Coeur, No. E.D.81302 (Mo. App. 2003).

The scope of judicial review is limited to determining whether the board's decision is supported by competent and substantial evidence upon the whole record or whether the decision is arbitrary, capricious, unreasonable, unlawful or in excess of the board's jurisdiction. In determining whether competent and substantial evidence exists to support the board's decision, the court views the evidence, along with all reasonable inferences therefrom, in the light most favorable to the board's decision. The interpretation given to the language in an ordinance by the body in charge of its enactment and application is entitled to great weight. Words contained in an ordinance should be given their plain and ordinary meaning and should be interpreted to avoid absurd results. Since the city's zoning ordinance did not define freestanding, the dictionary meaning is referenced. The dictionary defined freestanding as "unattached to a supporting unit or background; standing alone."

Here, the west wing has the same bricks, windows, and aesthetic appearance as the north and south wings. A concern for aesthetic appearance is a purpose of the sign regulations, as evidenced by the city's ordinance. Since the medical facility outwardly appeared to be one building, as the photographs submitted into evidence illustrate, it is reasonable for the Board to regulate the building's signage accordingly. The court will not hold the board to a technical meaning of the word "freestanding." The board's decision was supported by competent and substantial evidence upon the whole record and was not arbitrary or capricious.