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Case Summary for January 13, 2016


Attached to the following docketed cases are electronic copies of briefs filed by the parties. These electronic briefs have been converted to PDF to accommodate various word processors. If you do not already have Acrobat reader, which is necessary to open the PDFs, you may obtain it free at the Adobe website. (A set of free tools that allow visually disabled users to read documents in Adobe PDF format is available from These briefs do not reflect any opinion of the Court about the appropriateness of the format of the briefs or the merits of the case, nor are they official court records. Copies of all briefs filed with the Court are available at the Supreme Court Building in the court en banc division.

The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit


9 a.m. Wednesday, January 13, 2016

Brittany Hunter v. Charles Moore Sr.
St. Louis City
Whether a settlement agreement under section 537.065, RSMo, may be reformed by subsequent court action
Listen to the oral argument: SC95083.mp3SC95083.mp3
Moore was represented during arguments by Susan Ford Robertson of The Robertson Law Group LLC in Kansas City; Hunter was represented by Mike Manners of Langdon & Emison in Lexington.

Brittany Hunter filed a lawsuit in Franklin County for personal injuries she alleges she sustained as a result of negligence on the part of Delta Motel LLC and its manager, Charles Moore Sr. American Family Mutual Insurance Company, which issued a policy for the motel, apparently filed an action to declare that Moore and the motel were not covered under the policy. Moore and Hunter subsequently signed a settlement agreement pursuant to section 537.065, RSMo, which permits certain claimants and tortfeasors to contract to limit the recovery to specified assets or the limits of an insurance contract. The agreement stated in part that Hunter wished to settle her claim against Moore within the limits of the American Family policy, would seek satisfaction of any judgment in her personal injury case against the American Family policy and would not seek satisfaction against Moore’s personal assets unless his net income exceeded $50,000 in any calendar year. Hunter subsequently sued Moore in St. Louis for breach of contract, seeking specific performance and reformation of the section 537.065 agreement. Both parties’ attorneys testified at a January 2014 evidentiary hearing that the terms Hunter wanted the court to enforce were not included in the agreement – that Moore would agree to an uncontested hearing in the personal injury action and that American Family could not defend him in that action. Hunter’s attorney testified he did not include those specific terms in the agreement because he believed it was understood that this was included within the purpose of a section 537.065 agreement. Moore’s attorney testified he believed the settlement agreement did not preclude a trial regarding liability and damages. Ultimately, the St. Louis circuit court entered judgment in favor of Hunter, reforming the terms of the agreement. In doing so, the court required Moore to prohibit American Family from defending him against Hunter’s personal injury action in Franklin County as well as to enter into a consent judgment with Hunter or, alternatively, to not contest liability and damages. Moore appeals.

This appeal presents one primary issue for the Court – whether the section 537.065 agreement, either by its own terms or through interpretation of such agreements, could be used to require Moore to agree to a consent judgment or uncontested hearing regarding liability and damages and to prohibit the insurance company from defending him against Hunter’s personal injury case. Related questions involve whether substantial evidence was presented to support reforming the settlement agreement and whether there was a mutual mistake as to whether Moore would cooperate in the Franklin County case or whether the parties orally agreed that he would do so.


Avery Contracting LLC v. Richard Niehaus, Lisa J. Niehaus, Alicia Niehaus, Creekstone Homeowners Association and Missouri Highways and Transportation Commission
Jefferson County
Challenge to dismissal of suit to establish private road
Listen to the oral argument: SC95064.mp3SC95064.mp3
Avery Contracting was represented during arguments by Phillip K. Gebhardt of Gebhardt Real Estate & Legal Services LLC in DeSoto; the Niehaus family and homeowners association were represented by Jeffrey B. Hunt of Doster Ullom & Boyle LLC in Chesterfield; and the commission was represented by Regional Counsel John W. Koenig Jr. of the commission in Chesterfield.

In a mid-1990s action by the Missouri Highways and Transportation Commission to condemn certain property interests in Jefferson County to relocate Highway M, a commissioner’s report stated that all abutter’s rights of access from a tract of land, approximately 50 acres in size, was “prohibited or limited,” leaving that tract with no recorded access to a public road. A subdivision known as Creekstone lies between the tract of land and Moss Hollow Road. By early 2003, the commission conveyed to Richard Niehaus certain land it owned within the subdivision, which the Niehaus family later platted in a lot consolidation. In 2003, the 50-acre tract – zoned for residential purposes – was conveyed to Mullins Custom Homes Inc., which later conveyed the tract to Avery Contracting LLC. Avery has no recorded legal right of access from any part of its tract to a public road. In February 2014, Avery filed a two-count petition against the Niehauses, the Creekstone Homeowners Association and the commission seeking to establish a private road from Avery’s tract over part of the consolidation plat to Creekstone Drive (part of which runs on land the commission still owns), which then connects to Moss Hollow Road. The commission filed a motion to dismiss, as did the Niehauses and the homeowners association. In May 2014, the circuit court granted both motions to dismiss. Avery Contracting appeals.

This appeal presents several issues for the Court. One is whether a party must plead that no public road passes through or alongside a landlocked parcel or whether the law permits, without such a pleading requirement, a private road to be established in favor of any owner of real property for which there is no access. Other issues involve whether Avery’s claims are barred – by the doctrine of res judicata (law of the case) if a prior owner of the tract waived any defenses in the condemnation case and accepted condemnation funds in exchange for prohibited or limited access from the property; by a 10-year statute of limitations; or because certain issues in Avery’s petition are not ripe (legally ready for judicial determination). Another issue involves whether Avery was required to exhaust administrative remedies by seeking access to the highway from the commission before bringing suit. Additional questions involve whether the commission is subject to provisions of chapter 228, RSMo, by virtue of article I, section 28 of the state constitution (governing the taking of private property) and whether an exemption in section 228.341 applies to any portion of the subdivision road, including the part the commission owns. Further issues involve whether the report in the condemnation case gives the commission ownership of all access rights from the tract, whether any constitutional or statutory provision authorizes a right of way by necessity to cross public land.


Timothy S. Pestka, et al. v. State of Missouri, et al.
Cole County
Constitutional validity of action overriding veto
Listen to the oral argument: SC95369.mp3SC95369.mp3
Pestka and Chavez were represented during arguments by Jim Faul of Hartnett Gladney Hetterman LLC in St. Louis; the state was represented by Deputy Solicitor General Jeremiah J. Morgan of the attorney general’s office in Jefferson City.

During its 2015 regular session, the legislature passed House Bill No. 150, making certain changes to the state’s employment security law. The governor vetoed the bill on May 5, returning it to the house of representatives. The house reconsidered HB 150 and overrode the governor’s veto on May 12; the senate adjourned without such a vote. The governor later vetoed an unrelated bill, resulting in the automatic convening of the legislature for a “veto session” in September 2015. During the veto session, the senate reconsidered HB 150 and overrode the governor’s veto. Timothy Pestka and Rudy Chavez subsequently sued the state, its division of employment security and the division’s acting director (collectively, the state), seeking a permanent injunction against HB 150. The circuit court determined the senate did not violate article III, section 32 of the Missouri Constitution when it reconsidered HB 150 during the fall veto session. Pestka and Chavez appeal.

This appeal raises one primary issue – whether the senate had constitutional authority to reconsider HB 150 during the veto session or whether article III, section 32 of the state constitution limits a veto session to consideration of only those bills vetoed within five days after the legislature’s regular session adjourns. Related questions involve the extent of the legislature’s plenary power under the constitution and the extent to which other constitutional provisions or historical evolution suggest article III, section 32 is intended to limit legislative power to reconsider vetoed bills.

Original briefs:

On February 1, 2016, the Court ordered supplemental briefing:

Supplemental briefs:

In re: Edward Lander
St. Louis County
Attorney discipline
Listen to the oral argument: SC95263.mp3SC95263.mp3
The chief disciplinary counsel, Alan D. Pratzel, represented his office, in Jefferson City; Lander was represented by Ira M. Berkowitz of the Law Office of Ira M. Berkowitz in St. Louis.

Since 2010, the chief disciplinary counsel’s office has received four separate overdraft notices concerning the trust account held by St. Louis attorney Edward Lander. Investigative audits of the first three overdrafts reflected inadvertent use of the trust account to pay personal expenses that did not result in any harm to clients. The chief disciplinary counsel admonished Lander and directed him to review 2013 amendments to the trust account rules (Rule 4-1.15, et seq.), to analyze the corresponding accounting manual for trust accounts, and to attend continuing legal education about the basics of trust accounting. Lander did not comply with these directives, and the chief disciplinary counsel’s office received an additional overdraft notice in May 2014 regarding Lander’s trust account. A subsequent investigation revealed that two checks totaling $13,600, payable to Lander’s clients, were deposited into Lander’s trust account but were returned because they were not endorsed, resulting in an overdraft. He subsequently made additional withdrawals on the trust account but could not provide records supporting reasons for the withdrawals. The parties dispute whether Lander also owed certain parties money from settlement proceeds that his trust account did not have sufficient funds to cover. A review of his bank statements revealed additional payments for personal expenses from the trust account. The chief disciplinary counsel began disciplinary proceedings against Lander. Following a June 2015 evidentiary hearing, a regional disciplinary hearing panel issued its decision concluding that Lander had violated Rule 4-1.15 by commingling personal funds in his trust account, withdrawing trust account funds improperly, failing to deliver funds from the trust account promptly to clients or third parties, failing to maintain complete records of his trust account, and being unable to explain certain transactions. The panel also determined Lander violated Rule 4-8.1 by failing to respond adequately to requests from the chief disciplinary counsel’s office. The panel recommended that Lander be suspended from the practice of law with no leave to apply for reinstatement for at least six months. Lander rejected the panel decision. The chief disciplinary counsel asks this Court to discipline Lander’s license.

This case presents related issues for the Court – whether Lander violated the rules of professional conduct and, if so, what discipline is appropriate.


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