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

After the marriage of Katherine and David Helsel was dissolved, Katherine filed an alienation of affection suit against Sivi Noellsch, alleging that Noellsch intentionally interfered with her marriage and caused it to fail. A jury returned a verdict in favor of Helsel and Noellsch appealed. The Supreme Court of Missouri reversed the judgment and abolished the tort of alienation of affections in Helsel v. Noellsch, No. SC 85053 (Mo.banc 2003).

The original justification for the tort of alienation of affection lies in the antiquated concept that husbands had a proprietary interest in their wives. Although modern courts no longer justify this tort in those terms, the tort has remained fundamentally unchanged since its establishment in Missouri. Some still argue that the tort must be retained as a useful means of preserving marriages. While these are laudable goals, it is unlikely that suits for alienation of affection actually serve this purpose. To the contrary, the opposite is likely true. These suits are almost exclusively brought after the marriage is irretrievably broken; revenge, not reconciliation, is often the primary motive. The adversarial positions taken in this litigation over intensely personal and private matters does not serve as a useful means of preserving the marriage.

Thirty-four states have abolished the tort by statute and six have abolished it through the courts. This Court previously abolished the closely related common law tort of criminal conversion. When the reason for a rule of law disappears, so too should the rule. The tort of alienation of affection can no longer be adequately justified. As the tort of alienation of affection was created by the courts, it is within the province of the courts to abolish it.

Employee Has Implied Duty Not to Compete With Employer

Alice Pollock was an employee of Berlin-Wheeler, Inc., an employment agency. Under her employment contract, Pollock was required to devote full time to her employer and would be paid a salary, plus a percentage of commissions she generated. While working for Berlin-Wheeler, Pollock placed an employee and received a commission check, which she deposited into her personal account. Pollock did not notify Berlin-Wheeler of the placement, nor of her receipt of the commission check. When Berlin-Wheeler discovered this, it terminated Pollock without giving her the 30 days notice required under her employment agreement. Pollock filed suit against Berlin-Wheeler, seeking recovery of unpaid salary, commissions, and employment-related expenses. Berlin-Wheeler filed a counterclaim seeking recovery of the commission Pollock had received and punitive damages. The trial court awarded Pollock back pay, but awarded Berlin-Wheeler the commission Pollock had received, thus, entering a net judgment in favor of Berlin-Wheeler in the amount of $2,162. The Court of Appeals affirmed in Pollock v. Berlin-Wheeler, Inc., No. WD 60568 (Mo. App. W.D. 2003).

Although the employment contract did not prohibit Pollock from competing with her employer during the term of her employment, Pollock had a duty, under law, not to compete with her employer during her employment. An agent’s duty not to compete with its principal is implied in law; unless otherwise agreed, an agent is subject to a duty not to compete. An employee’s fiduciary duty has nothing to do with the parties’ agreement in fact; it is a constructive term of every employment contract, unless waived by the parties. An agent who competes with his or her principal must disgorge any benefits resulting from the competition unless the parties ratify to the competition or waive. Here, Pollock earned the commission check while competing against her employer. The trial court’s judgment awarding the commission check to Pollock’s employer is warranted by her breach of duty of loyalty to her employer.

Colorado Default Judgment Entitled to Full Faith and Credit in Missouri Courts

George and April Gibbens entered into a vacuum cleaner distributorship with L&L Wholesale, a Colorado company. Prior to opening the distributorship, George went to Colorado for three weeks of training provided by L&L. After George and April began operating the business, Brian Lamke, president of L&L came to Springfield and presented the distributorship agreement to the Gibbenses. No additional terms were negotiated and the Gibbenses were directed to sign the documents. The distributorship agreement contained a forum selection clause, designating Colorado as the forum, and also a choice of law provisions stipulating that Colorado law would govern any disputes. Approximately 10 months later, L&L filed suit against the Gibbenses in Colorado, alleging that the Gibbenses failed to make payments owed to L&L. The Gibbenses were served with the Colorado lawsuit in Springfield, Missouri. They contacted a Colorado attorney but determined they could not afford to pay the attorney’s fees. They then filed a pro se motion to dismiss, arguing that the Colorado court lacked jurisdiction. The Colorado court denied the Gibbenses’ motion, finding that the distributorship agreement contained a binding forum selection clause. The Colorado court then entered a default judgment against the Gibbenses on all claims. L&L filed suit in Greene County, Missouri to enforce the judgment. The trial court sustained the motion to vacate the judgment filed by the Gibbenses, but the Court of Appeals reversed with directions to the trial court to enter a judgment on the Colorado judgment in L&L Wholesale, Inc. v. Gibbens, No. 24989 (Mo. App. S.D. 2003).

The trial court’s decision that the Colorado judgment should not be registered in Missouri as a foreign judgment is a legal conclusion, which is not binding on appeal. Missouri is obligated to give a judgment of a sister state full faith and credit unless that judgment is void for lack of personal or subject matter jurisdiction or the judgment is obtained by fraud. Missouri may also refuse full faith and credit if the judgment creditor failed to give due notice to the judgment debtor. With respect to a judgment rendered by a court of general jurisdiction of another state, Missouri courts will presume not only that the court had both personal and subject matter jurisdiction, but that the court followed its laws and entered a valid judgment in accordance with the issues in the case. A party asserting the invalidity of such a judgment has the burden of overcoming the presumption of validity unless the proceedings show that the judgment is not entitled to that presumption. According to the Colorado court, its jurisdiction over Gibbenses was based on the forum selection clause contained in the distributorship agreement. Missouri courts recognize the validity of these clauses unless they are shown to be unfair or unreasonable.

It was not necessary for the Gibbenses to raise issues of personal and subject matter jurisdiction in the Colorado court; they could have waited to raise the issues when the Colorado judgment was filed in Missouri. Missouri law states that if the issues of personal or subject matter jurisdiction were not litigated during the previous proceedings in the sister state, a party may raise them when the foreign judgment is filed in Missouri. Where the decision of a sister state on personal jurisdiction is adverse, and no appeal is taken, the question of personal jurisdiction cannot be re-litigated in the forum state. Here, rather than ignore the Colorado proceedings, as was their prerogative to do, the Gibbenses raised the issues of personal and subject matter jurisdiction in their motion to dismiss. The Gibbenses were provided with the opportunity to fully and fairly litigate those issues in the Colorado court. They also chose not to follow the avenue of direct appeal in Colorado, which was their option. The end result is that, under the circumstances of this case, the Colorado court’s determination on both personal jurisdiction and subject matter jurisdiction must be accepted; it is entitled to full faith and credit in Missouri.

Courts Have No Jurisdiction Over Religious Issues

Scott and Connie Brady were members of the White River Valley Community Church. Concerned about the conduct of the Bradys, the pastors of the church sent them a letter expressing their desire to resolve the disputes and reach harmony. When letters and meetings were unsuccessful, the pastors sent a letter to the church membership stating that the Bradys had created dissension and discord in the church. The Bradys filed a suit for libel against the pastors and were awarded both actual and punitive damages. The trial court, however, set aside the judgment and the Court of Appeals affirmed in Brady v. Pace, No. 25121 (Mo. App. S.D. 2003).

The trial court had no subject matter jurisdiction over the claims of the Bradys. Here, the claims of libelous remarks are clearly related to the belief of the church pastors that Scott Brady’s conduct within the church required he be disciplined. The comments were made during the time of the controversy concerning Mr. Brady’s removal from membership and the remarks were made to people associated with the church as part of the pastors’ report to the church family about Brady’s impending removal from the church membership. As such, they fall within the scope of First Amendment protection. This involves termination of Brady's membership in the church for alleged grounds (whether true or false) that related to the appropriateness of his continued membership there. Civil courts lack jurisdiction over disputes that are either essentially religious in nature or are sufficiently intertwined with church polity as to constitute a threat of entanglement with religious doctrine or practice. The First Amendment precludes civil court intervention in matters involving church discipline, including the discipline of a member of the congregation. Thus, the trial court lacked subject matter jurisdiction. (The dissent argued that the plaintiff’s claim was based on defamatory remarks made by a pastor and, therefore, does not conflict with church government, or become entangled in religious doctrine.)

Trial Court Properly Dissolved Corporation Where Equal Shareholders Were Deadlocked on Continuance of Business

Larry and Cora Cupp formed a corporation, Caraco, to operate a golf course in Moberly. After they were unable to secure financing, Mr. Cupp sought financial help from his aunt, Mable McCormick. McCormick became a shareholder, owning one-half of the stock, with the Cupps owning the remaining half. McCormick advanced more than $500,000 to the company and the Cupps contributed "sweat equity" in addition to monetary contributions. No loan documents were ever prepared for any of the monetary advances and no corporate minutes described how the advances would be treated. McCormick and the Cupps could not agree on the continued operation of the golf course and McCormick filed suit to dissolve the corporation under § 351.467, RSMo. The trial court dissolved the corporation, ordered third-party creditors paid from the sale of its assets, and ordered the remaining proceeds divided equally between McCormick and the Cupps. McCormick appealed, claiming that her advances should be treated as corporate loans, not capital contributions. The Cupps appealed, claiming they were entitled to be paid for their "sweat equity" before the remaining assets were divided. The Court of Appeals rejected both claims, however, in McCormick v. Cupp, No. W.D. 60508 and W.D. 60509 (Mo. App. W.D. 2003).

Traditionally, shareholders could not force the dissolution of a corporation without proving fault on the part of the directors. Under § 351.467, RSMo, however, where a corporation has only two shareholders, each of which is a 50% owner, and the shareholders are unable to agree upon the desirability of continuing the business, either shareholder may have the corporation dissolved. A dissolved corporation is a legal entity with only one goal – to wind up its affairs. This involves a liquidation of its assets and payment of its creditors. The remaining assets of the corporation are distributed to the shareholders according to their interests, i.e. their percentage ownership. Unless there is an agreement to the contrary, after all creditors are paid, the shareholders are entitled to a pro rata distribution based upon their percentage of stock ownership. The Cupps failed to prove both the value of their labor and that there was an agreement to compensate them for their sweat equity. They also failed to cite anything from the by-laws or the articles of incorporation or any statutory authority entitling them to recover their capital contributions before liquidation dividends were issued. McCormick also failed to prove any action was taken by the board of directors acknowledging any loans she made to the corporation. Thus, the judgment of the trial court disposing of remaining assets on the basis of stock ownership is affirmed.

Outbound Forum Selection Clause Was Not Unfair

Theodore Burke signed a purchase order issued by Americard Dispensing Corporation, a Florida corporation. Shevin Goodman was the president and sole shareholder of ADC. In the purchase order issued to Burke by ADC, there was a forum selection clause stating that the exclusive venue for the resolution of disputes was Dade County, Florida. Burke filed a lawsuit in St.Louis County against Goodman, alleging fraudulent acts on the part of Goodman that induced Burke to enter into the purchase order. Goodman filed a motion to dismiss, contending that Dade County, Florida was the exclusive venue for the resolution of all disputes. The trial court granted Burke’s motion and the Court of Appeals affirmed in Burke v. Goodman, No. ED 81814 (Mo. App. E.D. 2003).

In his lawsuit, Burke alleged that Goodman was the alter-ego of ADC. Thus, the forum selection clause in the purchase order issued by ADC was applicable. The Missouri Supreme Court has held that an outbound forum selection clause should be enforced unless it is unfair or unreasonable to do so. The party resisting enforcement of the forum selection clause bears a heavy burden in convincing the court that he or she should not be held to the bargain. In determining the fairness of the forum selection clause, the court considers whether or not the contract was an adhesive contract. Here, the purchase order was not an adhesive contract. Although the forum selection clause provided a specific venue where all litigation must be brought, this one factor is not controlling in determining fairness. Enforcement of the outbound forum selection clause in the purchase order was not unfair.

Further, a forum selection clause may be unreasonable if it results in undue hardship, such as a necessity to travel or transport witnesses such a distance that expenses would render access to the courts impractical. Although Burke states that trial in Florida is a very unattractive proposition, he did not show that trial in Florida would be so greatly difficult and burdensome that he would be deprived of his day in court. The record does not indicate that Burke supplied the trial court with the names of witnesses he would call, where they live and their significance to their case, showing of what Burke's expenses would be to bring the case to Florida or that these expenses would create an undue hardship. Thus, Burke did not meet his heavy burden to convince the court that he should not be held to his bargain by showing that enforcement of the outbound forum selection clause was unreasonable.

Error in Jury Instruction Must Be Prejudicial to Warrant Reversal

Marjorie Hepler went to the Caruthersville Supermarket on the evening of December 5, 1999 to purchase a poinsettia. She exited her car and was walking toward the front of the building in an area considered a sidewalk, delineated by yellow painted lines on the parking lot in front of the store. Christmas trees were displayed near the sidewalk; the trees protruded into the sidewalk area and needles from the trees covered the sidewalk. Hepler slipped on the pine needles and was injured when she fell. The jury found the supermarket 100% at fault and awarded Hepler $27,000 in damages. The supermarket appealed, contending that the jury instruction gave the jury a roving commission. The Court of Appeals affirmed the verdict, however, in Hepler v. Caruthersville Supermarket, No. 24869 (Mo. App. S.D. 2003).

Instructional error must be prejudicial to a party to warrant reversal. The presence or absence of prejudice in the giving of instructions is a question of law and is to be judicially determined. Reversal is required where an instruction misdirected, misled or confused a jury, or where the merits of the case were affected by the submission of the flawed instruction. There must be substantial evidence supporting an issue before that issue may be presented to a jury by the giving of an instruction; submitting the instruction despite the lack of such evidence constitutes reversible error. Prejudicial and reversible error occurs when an instruction is proffered to a jury that gives the jury a roving commission. A roving commission occurs when an instruction assumes a disputed fact or submits an abstract legal question that allows the jury to roam freely through the evidence and choose any facts suiting its fancy or its perception of logic to impose liability. Here, the phrase in the jury instruction referring to the sidewalk as not reasonably safe did not misdirect the jury. In considering the propriety of a proffered verdict director, a court must not read portions thereof in isolation from the remainder of the instruction. Read fairly and in its entirety, the instruction conformed to the evidence and did not give the jury a roving commission. The plaintiff based her case on a dangerous sidewalk condition, she submitted substantial evidence in support of her theory, and the verdict directing instruction submitted to the jury was consistent with that theory.

Retaining Wall Subject to Implied Warranty of Fitness for New Home

Joseph Herschewe purchased a new home constructed by Edward Perkins. The property had five retaining walls constructed on the premises, which were all built by Perkins during the construction of the home. After Herschewe moved in, one of the retaining walls collapsed and he filed suit against Perkins for breach of the implied warranty of quality and fitness. At trial, an expert for Herschewe testified that the retaining walls were defective and that the cost of repairing them would be approximately $30,000. The trial court entered judgment in favor of Herschewe, and the Court of Appeals affirmed in Herschewe v. Perkins, No. WD 61650 (Mo. App. W.D. 2003).

The Supreme Court of Missouri established the "Old Warson" doctrine by which the implied warranty of quality and fitness protects the first purchaser of a newly-constructed home. This implied warranty does not apply to an improvement outside the house which is not an integral part of the structure or immediately surrounding it. Under Old Warson, the structure at issue must either be a part of the residential structure, provide direct support to the residential structure, or be integral to its use. Here, the retaining walls have a functional purpose. While the walls may not provide physical support to keep the house standing, it cannot reasonably be disputed that they play an integral role in the enjoyment of the home. It is not necessary to show that the house is unusable in order to fall within the protection of the warranty. Whether it is a porch, driveway, or a retaining wall, the implied warranty of quality and fitness covers those items surrounding the home that are critical to its function and viability. Finally, damages need not be established with absolute certainty, but reasonable certainty is required as to both existence and amount and the evidence must not leave the matter to speculation. Here, there was sufficient evidence to support the award of damages.

Appeal Dismissed for Deficient Brief

Esther Hardin appealed from the trial court order granting summary judgment to Doyal Lemay on his petition to quiet title to real estate. Lemay filed a motion to dismiss the appeal for the failure of Hardin’s brief to comply with Supreme Court Rule 84.04. The Court of Appeals found the brief to be deficient and dismissed the appeal in Lemay v. Hardin, No. W.D. 60957 (Mo. App. W.D. 2003).

Supreme Court Rule 84.04 requires that each point relied on in the appellant’s brief comply with the following: (1) identify the trial court’s ruling or action that the appellant is challenging on appeal, (2) state the legal reasons for the appellant’s claim of reversible error, and (3) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error. The function of this rule is to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review. It is well settled that a point relied on written contrary to the mandatory requirements of Rule 84.04(d), which cannot be comprehended without resorting to other portions of the brief, preserves nothing for appellate review. Here, the appellant’s points relied on are deficient in that they fail to sufficiently set forth the legal reasons for her claims of reversible error, and fail to explain why, in the context of the case, the legal reasons alleged in the points relied on support the appellant’s claims of reversible error. At best, the appellant’s points are nothing more than abstract statements of the law, which, standing alone, do not comply with Rule 84.04. Where, as here, the briefing deficiencies are so substantial that the appellate court, in order to conduct any review, would be forced to speculate not only as to the claims being raised but as to the facts and arguments being relied on in support of the same, the court no choice but to dismiss the appeal.

Restrictive Covenants on Property Are Strictly Construed

Benjamin and Carolyn Ortega owned a home in Barry Harbor. They regularly stored their boat on the driveway of their home. The declaration of protective covenants of Barry Harbor Subdivision stated that no truck, boat, trailer, camper or recreational vehicle shall be customarily or habitually parked, kept or stored on the streets or alleys, or in the yards of any building within Barry Harbor. The Barry Harbor Homes Association filed suit against the Ortegas seeking a permanent injunction against the Ortegas from storing their boat on their driveway. The trial court granted summary judgment to the Ortegas and the Court of Appeals affirmed in Barry Harbor Homes Association v. Ortega, No. W.D. 61435 (Mo. App. W.D. 2003).

In construing restrictive covenants, the following concepts apply: (1) the terms used will be given their ordinary and popular meaning and if the language is plain, no construction is necessary, (2) when the meaning of the terms is open to construction, they will be strictly construed, (3) the restrictions will not be extended by implication, and (4) any reasonable doubt will be resolved in favor of the free use of land. The word "driveway" does not appear in the restrictions. The plain and ordinary meaning of the word "yard" is a grassy area surrounding a house. The plain and ordinary meaning of the word "yard" does not include driveway. Restrictions are to be strictly construed, are not to be extended by implication, and are to be interpreted in favor of the free use of land. To strictly construe the covenant and in favor of the free use of land, the court must accept the definition of yard without including the word "driveway." The plain language of the covenant shows only an intent to prohibit boats in three specific areas— streets, alleys and yards. It is well established that courts should interpret covenants so as to give effect to the intent expressed by the plain language.

Inadequate Traffic Controls May Constitute Dangerous Condition of Public Property and be Exception to Sovereign Immunity

Walter Klammer was leaving a shopping center in Grandview, Missouri, in his car and attempting to cross Blue Ridge Blvd. As he crossed the street, his car was struck by a motorcycle and he was seriously injured. His estate filed suit against the City of Grandview, alleging that this location was dangerous due to limited visibility and inadequate traffic controls. The trial court granted summary judgment to the city, but the Court of Appeals reversed in United Missouri Bank v. City of Grandview, No. W.D. 61111 (Mo. App. W.D. 2003).

Public entities, such as the city, are generally immune from tort liability under the doctrine of sovereign immunity. This immunity is waived under § 537.600, RSMo, for conditions of property when the property is in a dangerous condition due to negligent or wrongful omission, a reasonably foreseeable injury directly results, and the public entity had actual or constructive knowledge of the problem and could have corrected it. Here, the plaintiff’s expert testified that this intersection did not have adequate site line distances. A dangerous condition of a public road can be pled by allegations of negligent, defective, or dangerous design. Signs and traffic controls can be a part of negligent, defective, or dangerous maintenance and design of state roads and highways. A dangerous condition of public property may arise from a general failure to post adequate signage or traffic controls. The trial court erred in granting summary judgment to the city.