Civil Practice and Procedure

Editor:
John S. Sandberg, Esquire

Only adverse parties are bound by summary judgment rulings. Jefferson v. Lyon Sheet Metal Works, et al , No. 96338 (Mo. App. E.D., May 9, 2012), Crane, P.J.

Defendant Lyon was found liable in a jury verdict for damages to the plaintiff when he was hit by a Lyon trailer that detached from a Lyon truck as a result of the truck driver’s negligence. The truck was driven by an employee of a company called Chilimack’s and both Lyon and Chilimack’s were sued. Chilimack’s filed a motion for summary judgment on the basis that it was not the employer of the driver and the motion was granted. At trial, plaintiff filed two motions in limine that prevented Lyon from arguing that Chilimack’s was responsible or that the driver was anything other than the employee of Lyon. Both motions were granted before trial. Lyon appealed from a jury verdict of $900,000.

Held: Reversed.
The appellate court noted that a motion in limine is about barring the jury from hearing evidence, and it should not be employed to choke off a claim or defense. Furthermore, Lyon was neither an adverse party to Chilimack’s at the time Chilimack’s motion for summary judgment was granted nor was it aggrieved by the summary judgment in favor of Chilimack’s. Accordingly it was not bound by the Chilimack’s judgment and it was not prohibited from arguing Chilimack’s liability as a matter of law. (The author was counsel for Lyon.)


Res judicata applies to the party who was counsel in an earlier case which was lost. Kinsky v. 154 Land Company, LLC, No. 96854 (Mo. App. E.D., May 15, 2012), Gaertner, Jr., P. J.

The underlying dispute involved a dispute amongst property owners of a development as to who could vote. Kinsky, as counsel for a property owner, sued the developer and homeowners association questioning whether there were sufficient votes for approval and Kinsky and his client lost. Thereafter Kinsky bought a lot in the development and filed a pro se petition against the homeowners association again contesting the question of who could vote. The homeowners’ association filed a motion for summary judgment and the court ruled in favor of the homeowners’ association.

Held: Affirmed.
One of the grounds of summary judgment was on the basis of res judicata because Kinsky as counsel had control over the litigation and was therefore a party bound by the earlier loss. The court pointed out that the issues in the two cases were identical and the only question was whether Kinsky as counsel for the earlier plaintiff was in privity for the purposes of collateral estoppel. The court held that as a non-party attorney Kinsky was bound by the earlier judgment since he had sufficient control over his client’s case.


Absent some evidence of intent of the legislature, a criminal statute does not create civil liability. Otte, et al. v. Edwards, Sr., et al., No. 97404 (Mo. App. E.D., May 22, 2012), Sullivan, J.

Appellants alleged that respondents served alcoholic beverages to their son while at respondent’s home. While intoxicated he was struck by a motor vehicle and died. The respondent’s moved to dismiss on the basis of failure to state a cause of action.

Held: Affirmed.
Section 311.310, RSMo, created a new criminal statute providing that serving a minor intoxicating liquor was a misdemeanor. The statute did not establish civil liability.


Knowingly filing in wrong venue leads to abuse of process award. Lambert, et al. v. Warner, et al. No. 96445 (Mo. App. E.D., July 3, 2012), Odenwald, C.J.

This case arose over the city’s attempt to remove unsafe buildings from Appellant’s property that was damaged in the flood of 1993. The property owner was held liable for abuse of process in that he had twice filed TRO actions in St. Louis County in attempts to stop the demolition actions even though his property was in the City of Portage des Sioux in St. Charles County.

Held: Affirmed.Filing actions twice in an improper venue is contrary to Missouri Rules of Civil Procedure and where the intent of the filings was to hold the city’s “feet to the fire,” the property owner had an improper purpose and he was liable for the abuse of process.


Supreme Court clarifies rules for purchases at tax sales. Sneil, LLC, v. Tybe Learning Center, Inc., et al, No. 92390 (Mo banc, July 3, 2012), Fischer, J.

Sneil was the successful bidder for real property owned by Tybe and mortgaged by Regions Bank. Sneil’s attorney sent a letter to Tybe and the bank 364 days after purchase telling them that they were the successful bidder and they could redeem their interest in the property and obtain more information by contacting the county department of revenue. The notice did not include the time they had to redeem. After Sneil obtained the deed it filed an action to quiet title to the property. The trial court held that Sneil had lost its interest in the property because it did not advise the owner and the bank of the amount of time it had to redeem the property. Sneil appealed.

Held: Affirmed.
The Supreme Court clarified what a notice under § 140.405 must contain to comply with the provisions to the statute. First of all the court held that the land owner has one year from the date of the tax sale to redeem the real property. Secondly, the court clarified that Sneil was not required by the statute to tell the owner and the bank what remedial procedures were available to them. Finally the court ruled that the purchaser must send notice at least 90 days before the one year anniversary of the tax sale pursuant to § 140.405. Sneil did not comply with this last requirement and therefore it lost all interest in the property.


If an ordinance is the basis of a claim, it must be admitted into evidence. Metropolitan St. Louis Sewer District, v. St. Ann Plaza, Inc., et al., No. 96512 (Mo. App. E.D., April 17, 2012), Cohen, J.

MSD sued the defendants on account for wastewater services. They were awarded both wastewater services and attorney’s fees of 15% based on the MSD ordinance allowing same. On appeal as to the attorney’s fees the action was reversed because MSD did not enter the ordinance into evidence and the ordinance was the basis of the attorney’s fee claim.