Dennis Owens

Dennis Owens, Attorney
Fellow, American Academy of Appellate Lawyers
Some Significant Cases

Mid-Missouri Waste Systems, LLC v. Lafarge North America, Inc., Case No. 09-3485 (8th Cir. filed 2009). In 1996, the owner of three tracts of property near Sedalia, Missouri, entered into a thirty-year mineral lease granting Lafarge, a multinational mining corporation, the right to operate a limestone quarry on one of the lots. In 2001, the landowner sold all three lots to Mid-Missouri, subject to the lease with Lafarge. Mid-Missouri planned to construct and operate a landfill on one of the lots. As a condition of its right to mine, Lafarge agreed to keep an old quarry pit free of water. Lafarge did not do this. After five years of back-and-forth wrangling, Lafarge was still not performing. Mid-Missouri declared Lafarge to be in default of the lease and brought a breach of contract lawsuit against it in federal district court. Lafarge refused to settle. After a three-day bench trial, the court adopted Lafarge’s proposed findings of fact verbatim, but failed to make any conclusions of law. Mid-Missouri retained us to appeal to the United States Court of Appeals for the Eighth Circuit. Although we tried to use the appellate court’s mediation process, Lafarge still refused to settle. After Lafarge’s attorneys received our brief, however, it promptly entered into a settlement in which it agreed to drain the water from the land so that Mid-Missouri could construct its landfill, to waive some of its lease rights, and to pay our client very substantial damages. This result was remarkable after the complete loss on all issues in the trial court. Our client’s analysis was that we had devised a case on appeal that Lafarge realized it could not overcome.

Bell v. Bell, Case No. WD70576 (Mo. App. W.D. slip op. Sept. 15, 2009). A farmer died, leaving his entire estate – mostly his 350-acre farm – to his wife. When she died, in her will she left the estate to a testamentary trust for her adopted grandson, who would receive the trust proceeds when he turned thirty. The value of the trust was approximately $750,000, and it was to be administered by collateral relatives until it vested in the grandson. Those relatives, however, used portions of the trust property for themselves. The grandson brought a discovery of assets action against the relatives, seeking an accounting and constructive trusts over the missing property. The probate court appointed a lawyer as the estate’s personal representative. Shortly before the trial was to begin, the personal representative proposed a compromise settlement of $385,000. At the hearing on this proposal, however, the personal representative introduced no evidence and called no witnesses. Over the grandson’s objection, the court reasoned that the personal representative did not need to be sworn in as a witness because he was a lawyer and, thus, an “officer of the court.” The court treated his unsworn oral argument and subjective opinions as evidence. It approved the settlement. The grandson appealed and retained us to handle the appeal. The Missouri Court of Appeals, Western District, held that regardless of whether the personal representative was a lawyer, he did have to be sworn in order to offer evidence sufficient to prove that his settlement proposal was in the best interests of the estate. It held that the probate court had erred in treating his oral argument as evidence, especially as the grandson was allowed no opportunity to cross-examine him. The Court reversed the probate court’s judgment and remanded the case for a full, proper evidentiary hearing. The Missouri Lawyers Weekly included this decision in its January 2010 feature on “Major Opinions From the Second Half of 2009.” This was a difficult case with many challenges, but a highly satisfactory outcome.

Phan v. State of Missouri, Case No. 0816-CV36955 (Mo. 16th Cir. 2009). In Missouri, a Juvenile Court has exclusive jurisdiction in cases of crimes committed by persons under the age of 17. In 1995, Mr. Phan, a Vietnamese immigrant, was indicted for allegedly robbing someone at gunpoint that April. Although he was under 17 at the time of the alleged crime, having been born in August of 1978, federal immigration records incorrectly recorded his birthdate as March of 1978. Both the police and the prosecutor used the immigration authorities’ birthdate and prosecuted him as an adult in the Circuit Court, rather than the Juvenile Court. He was convicted and was sentenced to thirteen years’ imprisonment. Instead of surrendering to the Department of Corrections, however, he fled the state. In 2008, he was found in Kansas and transferred to Missouri. We were retained to pursue a postconviction remedy in Missouri state court. We obtained a certified copy of his Vietnamese birth certificate and had it translated and further certified by the Vietnamese Embassy in Washington, D.C. The birth certificate conclusively showed that Mr. Phan was 16 years old at the time of his alleged offense. The prosecution could not refute our evidence. Because the Circuit Court had lacked jurisdiction to convict and sentence Mr. Phan, we moved it to vacate his conviction and sentence. After a trial, the court agreed: the birth certificate was prima facie evidence that our client was under 17 at the time of the alleged crime. The court vacated the judgment of conviction and sentence, and discharged our client.

Shirkey v. Guarantee Trust Life Insurance Co., 141 S.W.3d 62 (Mo. App. 2004); 196 S.W.3d 43 (Mo. App. 2005); 258 S.W.3d 885 (Mo. App. 2008). Mr. Shirkey obtained disability credit insurance when he purchased a car in 1996. When his health deteriorated, he attempted to collect the insurance but was denied in 1997. He sued. The trial court ruled in favor of the insurance company after a trial in 2003. We handled the appeal with Mr. Shirkey’s father, a lawyer and good friend. We argued that Mr. Shirkey had answered all the questions on the insurance application in good faith. The insurance carrier contended that the answers were materially wrong and his state of mind was irrelevant. The Missouri Court of Appeals, Western District, held that although the statements on the application may have proved later to be wrong, the applicant had not intended to deceive. The evidence was that Mr. Shirkey had answered to “the best of his knowledge and belief.” The Court reversed and ordered that judgment be entered in favor of Mr. Shirkey and that we be allowed to pursue an award of damages and attorneys’ fees because of the insurance company’s vexatious refusal to pay on its policy. The trial court promptly entered judgment for Mr. Shirkey on the policy claim, but then denied him summary judgment on the vexatious refusal claim. When he sought a trial, the court announced that its judgment (of four months prior) had adversely disposed of his vexatious refusal claim, too. We obtained a “special order” which allowed us to appeal that judgment later than normal. The insurance company petitioned the Supreme Court for its writ prohibiting the intermediate court from allowing the late appeal. We opposed the petition, which the Court then denied. State of Missouri ex rel. Guarantee Trust & Life Ins. Co. v. Smith, Case No. SC86853 (Mo. banc 2005). We then proceeded with our appeal, arguing that the trial court had never addressed and disposed of the vexatious refusal claim. The Missouri Court of Appeals, Western District, agreed with us and remanded the case for a trial on that remaining claim. The trial court granted us summary judgment on liability and awarded us the statutory penalty and attorneys’ fees. The insurance company appealed. The Missouri Court of Appeals, Western District, reversed the judgment because the trial court used summary judgment instead of judgment as a matter of law under a different Supreme Court Rule. Upon remand, we proceeded to seek relief under the different rule in the trial court. That action is currently back in the Court of Appeals for a fourth time.

Kinnaman-Carson v. Westport Insurance Corp., 283 S.W.3d 761 (Mo. banc 2009). A drunk driver crossed the highway median and struck Mrs. Kinnaman-Carson’s car head-on. The drunk driver and her companion were killed instantly. Mrs. Kinnaman-Carson was severely injured. The car driven by the drunk driver recently had been stolen from the ABC tow lot where her companion had worked. Mrs. Kinnaman-Carson’s trial lawyer, Joseph Backer, discovered that the tow lot lacked any meaningful security system. Mrs. Kinnaman-Carson sued ABC for negligence in failing to maintain adequate security. ABC’s commercial liability insurer, Westport Insurance Corporation, initially denied coverage completely. Then, Westport agreed to defend ABC under a reservation of rights, meaning that it would hire a lawyer for ABC, but would not pay if ABC were found liable. ABC rejected the reservation of rights. In the meantime, Mrs. Kinnaman-Carson and ABC entered into an agreement that (1) there would be a trial by judge, rather than a jury trial, (2) if the judge found ABC liable, the damages could not exceed $1.7 million, and (3) any award of damages could not be collected from ABC, but only from Westport, if Westport would extend coverage or if a court held it liable. After a trial, the Court granted judgment for the plaintiffs, awarding Mrs. Kinnaman-Carson $1.1 million, and her husband $300,000 for loss of consortium. Shortly after the judgment was entered, but before it became final, Westport informed ABC that it was withdrawing its reservation of rights and would defend and indemnify ABC in full. Westport failed to file a motion for a new trial. Westport did not appeal. It did not seek a special order from the Missouri Court of Appeals to file a late appeal. When Mrs. Kinnaman-Carson sought payment of the damages from Westport, it refused. She filed an equitable garnishment action against Westport to obtain a court order for it to pay. Westport admitted that it had withdrawn its reservation of rights, but argued that its policy did not cover the damages because of a clause that excluded coverage for any injury “arising out of” the use or ownership of an automobile. The trial court agreed and would not allow her to collect. She appealed. Mr. Backer hired me to handle the appeal, and I enlisted Jonathan Sternberg, Attorney, and Linus Baker, Attorney, to assist me. We argued to the Missouri Court of Appeals, Western District, that under a line of cases from the Court’s Eastern District, the injury arose out of negligent security, not out of the ownership or use of an automobile. We also argued that Westport could not agree to coverage in our case against ABC and afterwards deny coverage in the garnishment case. The Western District disagreed with our arguments, holding that its own precedent was opposite of the Eastern District. We persuaded the Supreme Court of Missouri to transfer the appeal. In a unanimous opinion authored by the Chief Justice, the Supreme Court held that because Westport withdrew its reservation of rights and then did nothing to defend ABC, it could not disclaim coverage in the equitable garnishment case – period. By that point, with interest after three years of litigation, the original 2006 judgment for $1.4 million was worth nearly $1.8 million. The Missouri Lawyers Weekly deemed this decision to be worthy of front-page coverage, and later included it in its July 2009 feature on “Important Opinions of 2009.” This was a difficult case with many challenges, but a highly satisfactory result.

Drach v. Kansas, 136 P.3d 390 (2006), cert. denied, 549 U.S. 1278 (2007); Drach v. Bruce, 305 Fed.Appx. 514 (10th Cir. 2008), cert. denied, 129 S. Ct. 2065 (2009). This is the case of an innocent man who was wrongfully convicted of murder. Roger and Deanne Drach of Garden City, Kansas, were happily married for over thirty years. After the Drachs’ son and Mrs. Drach’s mother both died of cancer within a six-month period, Mrs. Drach became despondent and depressed, turning to alcohol for solace and attempting suicide. She then entered alcohol rehabilitation. On the evening immediately after her return home, she wrote a suicide note, gave it to her husband, and shot herself in her chest at contact range. The authorities ruled her death a suicide and considered the matter closed. Several of Mrs. Drach’s family members, hoping to prevent Mr. Drach from administering her estate, filed a wrongful death suit against Mr. Drach. One of the attorneys Mr. Drach had hired to represent another family member in the civil proceeding quit his private practice and joined the Finney County Attorney’s office. Soon thereafter, Mr. Drach was charged with his wife’s murder. He pleaded not guilty. During his two week trial, the trial court prohibited a forensic psychiatrist from testifying about the suicide note, admitted hearsay under the now invalid res gestae hearsay exception, and allowed the testimony of an undisclosed surprise witness. Mr. Drach’s attorneys prevented him from testifying on his own behalf. The jury convicted Mr. Drach of first-degree murder, and he was sentenced to imprisonment of twenty-five years to life. At the time, Mr. Drach was 62 years old. The Supreme Court of Kansas affirmed his conviction on direct appeal, holding that although admitting the hearsay under a res gestae exception was error, the hearsay still was admissible under Kansas’s unique “marital discord” exception. Mr. Drach then hired me to seek state and federal habeas corpus relief. In state court, we attacked the trial lawyers’ refusal to allow Mr. Drach to testify, as well as the Constitutionality of the “marital discord” hearsay exception. We argued that Crawford v. Washington, 541 U.S. 36 (2004), should be applied retroactively (an issue of first impression in Kansas). The trial court denied him habeas relief. We appealed to the Kansas Court of Appeals, but the Supreme Court of Kansas took the case on its own motion. It affirmed the denial of habeas relief. We petitioned for a writ of certiorari in the Supreme Court of the United States, arguing that the Kansas court’s decision contravened the U.S. Supreme Court’s interpretation of the Sixth Amendment. Although the Supreme Court ordered the Kansas Attorney General to respond to our petition, it ultimately denied certiorari. We believe that this was because, in the meantime, the Supreme Court of Kansas had invalidated its “marital discord” hearsay exception. We sought a recall of the Kansas Supreme Court’s mandate in Mr. Drach’s direct appeal, to no avail. Then, we pursued a writ of habeas corpus in the United States District Court for the District of Kansas. A 1996 federal law, hastily passed in response to the Oklahoma City bombing, set a one-year statute of limitations on all federal habeas actions. That same law also mandated that a judge give special permission to appeal any federal court’s decision denying habeas corpus, called a “certificate of appealability.” We argued to the federal district court that the statute of limitations violated the Founding Fathers’ express language in the Constitution of the United States that “the writ of habeas corpus shall not be suspended” unless the country is experiencing such rebellion or foreign invasion that courts cannot function. We also argued that it violated basic American principles of Due Process, because it prevents a wrongfully convicted man from having any meaningful review of the grossly unconstitutional procedures that resulted in his conviction. The federal district court disagreed and denied us a certificate of appealability. We appealed to the Tenth Circuit, which affirmed, denying a certificate of appealability. We then filed a petition for writ of certiorari in the Supreme Court of the United States, which was denied.

Carlson v. Carlson, 275 S.W.3d 356 (Mo. App. 2008). During a bitter divorce case involving questions of child custody, the husband made harsh allegations against his wife of substance abuse and child neglect. The wife argued that those allegations were untrue and, as a penalty, that the trial court should sanction the husband monetarily. The court originally scheduled a special hearing over the wife’s request for sanctions, but later passed the issue to the trial. At trial, there was no mention of sanctions other than the wife testifying to the amount of her outstanding bill to her attorney. In its judgment, the trial court sanctioned the husband by ordering him to pay nearly all of the wife’s $18,000 in attorney fees and the guardian ad litem’s fees of $21,000. The court placed an attorney’s lien on the husband’s potential interest in a corporation which was not a party to the case. Separately, the court ordered the husband to pay one-half the costs of his young children’s eventual college education, but did not specify what those costs were. The husband hired us to handle his appeal. The Missouri Court of Appeals, Western District, held that the sanctions themselves were proper, because some other evidence at trial concerning the husband’s conduct was relevant to the wife’s reasons that he should be sanctioned. Still, the Court reversed the attorney’s lien on the corporate property because the guardian ad litem was not acting as the husband’s lawyer, and therefore the trial court had no authority to order the lien. The Court also reversed the order to pay the college costs, because the trial court had not specified what those “costs” were, or what the effect of scholarships or living at home would be on his obligation. This was a partial win, but my client was very pleased with the outcome.

Skaggs v. City of Kansas City, 264 S.W.3d 694 (Mo. App. 2008). The City of Kansas City, Missouri, uses a city manager-council form of government. Its mayor and its city council are the legislature, and its city manager is its chief administrator. The City Charter specified that the city manager “serves at the pleasure of the mayor and council.” In 2007, the citizens of Kansas City elected a new mayor. He disagreed politically with the existing city manager, who had been appointed by the previous mayor. The city manager’s contract was set to terminate in April, 2008. In December, 2007, the new mayor informed the city council that he would not approve a renewal of the city manager’s contract when it expired. Instead, he stated that a search for a new city manager should begin. A majority of the city council disagreed. They went over the mayor’s head and passed an ordinance re-approving the city manager’s contract for another four years. A member of the city council minority, who had sided with the mayor, hired us to seek a declaratory judgment against the City of Kansas City to declare the ordinance in violation of the City Charter and, vicariously, the Constitution of Missouri, because the renewal of the city manager’s contract was not effected by both “the mayor and council,” as the City Charter seemingly required. We brought a declaratory action in the Circuit Court of Jackson County. The City Attorney had advised the members of the City Council before it acted that our legal position was correct. As a result, the City had to retain outside counsel to defend this lawsuit. Because no facts were at issue, and thus a trial was unnecessary, the court directed both parties to file motions for summary judgment (judgment without a trial). The court sided with the city council, and my client asked us to appeal. The Missouri Court of Appeals, Western District, decided that the language “mayor and council” was ambiguous and did not preclude the contract renewal, largely based on past performance of the renewal of a city manager’s contract, which had been done in much the same way. Although our efforts were not successful, the Court of Appeals’ opinion in this case peacefully resolved a crisis for Kansas City’s half-million citizens which previously had caused them great consternation.

Mathers v. Allstate Insurance Co., 265 S.W.3d 387 (Mo. App. 2008). A homeowner’s residence was damaged in an accidental fire. She had a homeowner’s insurance policy with the Allstate Insurance Company. She promptly filed a claim with Allstate, but Allstate denied coverage. The homeowner then filed a lawsuit against Allstate, seeking the trial court to declare that Allstate had to cover her claim. Allstate was properly served with process, but failed to respond. The trial court found Allstate in default and awarded the woman more than $100,000.00 under her policy. More than a year later, Allstate asked the court to set aside the default judgment against it. In Missouri, a party found to be in default may have the default judgment against it set aside after one year only when there was both (1) extrinsic fraud, accident, or mistake occurred, and (2) the defaulted party’s actions (or inactions) were unmixed with neglect or inattention. Although Allstate acknowledged that it itself had committed “inadvertence and mistake,” and no extrinsic fraud had occurred, the trial court nonetheless set aside the default judgment and set the case for trial. The homeowner hired us to appeal. Because Allstate had contacted me about possibly representing it in another case, I asked my partner, Linus Baker, to handle the appeal as lead counsel. He did so with great success. The Missouri Court of Appeals, Western District, readily recognized that Allstate did not qualify for the setting aside of a default judgment against it so long after it was entered. The Court reversed the trial court and reinstated the $100,000.00 award to the homeowner. Thanks to our efforts, the homeowner received what was due to her.

Doe v. Merritt, 261 S.W.3d 672 (Mo. App. 2008); Doe v. Phillips, 261 S.W.3d 611 (Mo. App. W.D. 2008). The Supreme Court of Missouri ruled in Doe v. Phillips, 194 S.W.3d 837 (Mo. banc 2006), that a person convicted of a registrable offense cannot be required to register as a sexual offender if his conviction took place before the 1995 passage of Missouri’s Sexual Offender Registration Act, because that requirement would be a retrospective application of a statute in violation of the Missouri Bill of Rights. A psychologist in Springfield, Missouri, pleaded guilty to the misdemeanor of possession of child pornography two years before that charge was added as a registrable offense. A youth minister in California, Missouri, pleaded guilty to endangering the welfare of a child six months before that charge became a registrable offense. In both cases, there was serious doubt as to any wrongdoing, but the clients were advised to plead to end the matter. When their offenses became registrable, to their surprise both were told by Sheriff’s offices that they would have to register as sexual offenders every ninety days. Each hired us to address this requirement. With Doe v. Phillips as our precedent, we brought separate actions, one in Greene County and one in Jackson County, against the county sheriffs, the county prosecutors, and the Missouri State Highway Patrol. We sought a declaratory judgment in each case that it was a violation of the Missouri Bill of Rights to require our clients to register as sexual offenders. We also asked the courts for permanent injunctions preventing the defendants from publishing any of the clients’ information in their sexual offender registries. In both cases, the trial courts agreed, declared that the registration of our clients violated the Missouri Bill of Rights, and permanently enjoined the defendants from publishing their registration information. The Highway Patrol appealed both cases to the Southern and Western Districts of the Missouri Court of Appeals, respectively. In both cases, the Court of Appeals affirmed the injunctions.

State ex rel. Allstate Insurance Co. v. Manners, Case No. WD68786 (Mo. App. 2007), Case No. SC88811 (Mo. banc 2007); and Case No. WD69550 (Mo. App. 2008). An insured alleged that his insurer, the Allstate Insurance Company, had failed to defend him in a personal injury action. Over a six month period, Allstate’s trial lawyer failed to respond to any of the insured man’s seventeen discovery demands. The discovery included requests for privileged material and millions of pages of other documents. For instance, it sought documents from McKinsey & Company advising Allstate on its adjustment strategy in general and the quarterly performance reviews, for the last ten years, of all 16,000 of Allstate’s adjustors. By the time the trial lawyer informed Allstate of his failures, the trial court had found Allstate in contempt and fined it $10,000 per day for each day that the discovery remained unanswered, including the privileged material. All of this was unknown to Allstate’s general counsel in Chicago and its litigators in San Diego. Allstate fired the trial lawyer and sought to remedy his failures. Allstate offered to disclose the privileged material under a protective order. The trial court refused any relief and increased the fine to $25,000 per day. Allstate then retained us to seek a writ of prohibition directing the trial court to set aside its orders to compel discovery, to allow for the assertion of privilege, to grant a protective order, and to vacate the fine. Working with Allstate’s team of attorneys from San Diego, we filed a petition for Writ of Prohibition in the Missouri Court of Appeals, Western District. Although the Court initially ordered the trial court not to enforce its orders, it ultimately denied our petition. We then filed a petition for Writ of Prohibition in the Supreme Court of Missouri. After several months of consideration of arguments and counterarguments, the Supreme Court denied our petition, holding that while Allstate’s claims may have merit, the question was not ripe for adjudication, as the insured never had attempted to execute on the contempt sanctions. We later sought a direct appeal from orders enforcing the contempt orders. The Court of Appeals did not allow us to proceed. The fine reached seven million dollars. Allstate settled this case on confidential terms.

Coffman v. Coffman, 216 S.W.3d 309 (Mo. App. 2007). In a divorce judgment, a trial court designated the disabled husband’s income from his General Motors disability pension as marital and included it in the property division. That income was his only substantial income, and the wife was not disabled. The husband hired us to handle his appeal. We were successful. The Missouri Court of Appeals, Western District, reversed and remanded, holding that while income from a general retirement pension accrued during a marriage is marital, income from a disability pension accrued before the pensioner reaches retirement age must be set aside to him as non-marital.

Jeffers v. Directors of Revenue, 206 S.W.3d 412 (Mo. App. 2006). Police in Raytown, Missouri, were dispatched to the scene of an accident one evening. They found two cars parked parallel to the curb in front of a residence. The cars were in contact. Department of Revenue records indicated that one car was owned by Mr. Jeffers, who lived in the house off the curb. Two police officers enticed Mr. Jeffers out of his home. He was intoxicated. He told the police that he did not realize his car had been in an accident and that he had been at home drinking since he had gotten home from work. The officers arrested him for driving under the influence of alcohol. Although the charges against him were dismissed, the Department of Revenue revoked his driver’s license because he had refused to submit to a breathalyzer test after his arrest. He retained former Judge Michael Hanna to challenge this revocation. The Circuit Court of Jackson County found in Mr. Jeffers’s favor, holding that the police did not have probable cause to arrest him for driving while intoxicated. There was no evidence of when the accident occurred or how the accident occurred. The Director of Revenue appealed the denial of its revocation to the Missouri Court of Appeals, Western District. Judge Hanna engaged us to handle the appeal. In a per curiam opinion, the Court of Appeals affirmed the trial court’s judgment, finding that although the officers had probable cause to believe Mr. Jeffers had been driving earlier and that he was intoxicated when arrested, they had no probable cause to believe that he was driving while intoxicated because there was no evidence of when the accident actually had occurred.

Hoecker v. Hoecker, 188 S.W.3d 497 (Mo. App. 2006). This case involved the dissolution of a marriage and the division of marital property. When the trial court divided the parties’ very extensive marital property, it failed to determine the value of several of their most significant assets. The trial court awarded stock held in various accounts based on the number of shares, not on the value of those stocks. Another asset in dispute was the husband’s retirement entitlement from the Lathrop & Gage law firm. We handled the husband’s appeal, arguing that because the trial court did not find values for certain property and that any evidence of the values the court did find were not in the record, the Court of Appeals was precluded from meaningful review of the trial court’s division of property. The Court of Appeals agreed, reversing the judgment and remanding the case with orders for the trial court to hear evidence regarding the value of certain marital assets, to determine those values, and to divide all the assets again.

Byrd v. Frank B. Wilson Trust, 182 S.W.3d 701 (Mo. App. 2006). This appeal was purely legal in nature. The trustee decided to sell the late Mr. Wilson’s farm residence. The trustee contracted with Mr. Byrd, an auctioneer, to sell the real estate for a four percent commission. Mr. Byrd conducted the auction and obtained a high bid of $575,000.00. The winning bidder delivered a check to the trust for ten percent of the bid. Five days later, a fire destroyed the residence. The winning bidder stopped payment on his check and refused to close on the sale. The trust refused to pay Mr. Byrd his four percent commission. Both parties sought summary judgment, agreeing that there were no disputed facts. The trial court granted summary judgment to the trust, holding that Mr. Byrd was not entitled to his commission. Mr. Byrd then retained us to appeal. Our sole point on appeal was that Mr. Byrd had earned his fee but could not get paid. We argued for the application of the rule that a real estate agent is entitled to his commission when he produces a buyer ready, willing, and able to purchase the real estate on terms agreeable to the seller, unless there is a provision to the contrary in their agreement. The trust argued that Mr. Byrd’s auctioneer’s commission would not be earned until the sale of the farm was fully consummated at a “closing” because the contract contained the word “sale” in numerous places. That is, because it defined “sale” as a “closing” and because no closing occurred, Mr. Byrd was not entitled to his commission. The Missouri Court of Appeals, Western District, disagreed, finding that there was no contractual intent to make Mr. Byrd’s commission contingent upon a closing. Mr. Byrd had produced a buyer ready, willing, and able to purchase the real estate on terms acceptable to the trust. The Court held that Mr. Byrd had earned his four percent commission on the sale of the farm.

Huber v. Huber, 174 S.W.3d 712 (Mo. App. 2005). The mother sought sole custody of her daughter after the daughter had disclosed that her father had sexually abused her. The trial court granted the mother sole custody and granted the father supervised visitation in a temporary order. At the trial, the court became increasingly hostile to the mother, even accusing her of “coaching” her daughter. The court gave the parents joint custody of the child. Faced with the possibility that her daughter would again be abused, the mother retained us. On appeal, we argued that the award of joint custody must be reversed because the trial court failed to make the required statutory findings. Missouri law requires courts to make specific findings of fact to show that the custody arrangement best protects a child from abuse. The trial court failed to make any findings of fact in its judgment. Accordingly, the Missouri Court of Appeals, Western District, reversed the judgment of joint custody and remanded the case. Since the trial judge was then out of the case due to his inappropriate personal relationship with the guardian ad litem, our client was presented with an opportunity to pursue a new trial.

C.A.A. v. E.A., a minor child, and R.S.J., 178 S.W.3d 565 (Mo. App. 2005). Our client, an unmarried woman, had a child and reared the child herself. She sought to involve the father in their child’s life, which he sometimes wanted and, at other times, definitely did not want. The mother then married another man. The father sued and, surprisingly, sought custody. After a long trial, the trial court gave him sole custody of their three-year old boy and barred the mother from visiting with the child without incredibly heavy supervision. The mother then retained us to appeal. The father informed the mother that unless she dropped her appeal he would have the little boy circumcised. (The father had rejected his family’s Jewish heritage and was entirely secular.) We petitioned the Missouri Court of Appeals and then the Supreme Court of Missouri for its writ prohibiting the trial judge from denying the little boy protection from this threat. We presented evidence that the child would be traumatized, given his body awareness and the fact that anesthesia is not used in the religious ceremony (which is usually limited to newborn infants). Before the high court could rule, the father announced that he had had a doctor perform the circumcision. This rendered our writ case moot. Azar v. Judge Christine Sill-Rogers, Case No. SC 86114 (Mo. 2005). We pursued our direct appeal. We argued that the trial court inappropriately had put the mother’s religious and medical beliefs on trial and had ignored both the father’s manipulative tactics and the sporadic nature of his interest in his son’s life. We also argued that the judgment was a change of custody from the mother and not an initial determination of custody. Sadly, the Missouri Court of Appeals, Western District, accepted the trial court’s approach and result and denied us any relief. The Supreme Court denied transfer, ending our battle. This was a particularly difficult, hard-fought case, and the outcome was heart-wrenching both for the mother and us.

Executive Board of the Missouri Baptist Convention v. Blunt, 170 S.W.3d 437 (Mo. App. 2005). The newspaper, a camp, a college, a home for the aged, and the endowment of the Missouri Baptist Convention each had a separate board of directors named by the convention. Conservative Southern Baptists have been in the majority of the convention in recent years. More liberal Baptists concocted a plan to wrest control of the convention’s three hundred million dollars worth of assets. The boards of these various ministries each declared that they would name their own membership and ignore the convention’s election of their directors. The convention sued to prevent this. A trial judge ruled the churches which make up the convention could not sue in the name of the unincorporated convention, nor could its incorporated executive board, nor the delegates to the convention called “messengers.” The convention then appealed. It retained us to present its special oral argument. This assignment involved mastery of an extensive body of law. There were no fewer than six briefs filed. Only forty days after oral argument, the Missouri Court of Appeals, Western District, reversed and remanded, holding that someone could represent the convention in a legal action and that someone is its executive board. This case involved issues of standing, church-state relations, the civil rules, corporate governance, and the control of very large assets. The decision was cited as one of “The Most Important Opinions” of the year by Missouri Lawyers Weekly (July 11, 2005).

Angell v. Missouri Highway & Transportation Commission, 161 S.W.3d 847 (Mo. App. 2005). Mr. Angell was badly hurt in an automobile accident. He was a passenger in a car driven by the president of the bank where he worked. Mr. Angell was not wearing his seat belt when the car rolled over, and he was paralyzed. He sued the driver who had hit their car (who only had twenty-five thousand dollars of insurance) and the highway commission which had a crew inspecting a bridge on that interstate highway. Since the state government’s liability is limited to one-hundred thousand dollars, Mr. Angell also sued a highway commission employee, Mr. Raithel, who had placed lane closing signs and a flashing arrow board by the road. Mr. Angell’s plan was to obtain a very large judgment against Mr. Raithel (whose personal liability would not be limited) with the expectation that the state of Missouri would pay that judgment against its employee. The trial judge dismissed the claim against Mr. Raithel because the law says that a state employee owes his duty to be careful to the public at large and not to any particular member of the public. A jury awarded Mr. Angell a verdict of twenty-five million dollars each against the other driver and the highway commission. Mr. Angell appealed, attacking the Constitutionality of the limitation of the state’s liability and the dismissal of the claim against its employee. The highway commission retained us to handle its case in the appellate courts. We worked with its in-house counsel. The Missouri Court of Appeals, Western District, affirmed the dismissal of the employee as a personally-liable defendant and affirmed the Constitutionality of the statutory limitation of liability. The Missouri Supreme Court refused to order transfer. The case involved the issues of sovereign immunity, official immunity, the public duty doctrine, and the Constitutional issues of access to the courts, separation of powers, and suspect classification. Mr. Angell was very ably represented by Edward Robertson, former Chief Justice of the Supreme Court of Missouri.

Greiner v. Greiner, 146 S.W.3d 442 (Mo. App. 2004). This was a divorce appeal. Dr. Greiner left his wife of 30 years. She had put him through medical school and then stayed at home as a mother. The trial court divided their property roughly evenly and awarded her very substantial maintenance and attorney’s fees. He appealed. She then retained us. There were numerous issues on appeal including the designation of certain property as marital or separate, the valuation of assets, her expenses, her ability to earn income after being out of the workforce for so long, and the amount of attorney’s fees awarded. The trial record was extensive. The Missouri Court of Appeals, Western District, affirmed the judgment. It concluded that one of her assets, the dividends on an investment she had made with her mother before the marriage, should have been labeled marital, but the redesignation only made the overall property division more equal. Therefore, it would not disturb the trial court’s decree. We won on all other points.

In re Marriage of Loftis, 148 S.W.3d 315 (Mo. App. 2004). After their divorce, the parents had joint legal custody of their daughter but agreed that only one should have sole physical custody when their daughter entered school. The mother moved to another state with their child. Both sought modification. The trial court awarded the mother, now remarried, primary physical custody, but only if she moved back to the father’s home area. The court found that her move to Illinois had been in good faith but not in the child’s best interest. Both parents appealed. The mother retained us to represent her in the appellate court. She soon decided to move back to Missouri and dismiss her own appeal. Our job was then to respond to the father’s appeal and hold on to the custody award. The father sought to have primary physical custody assigned to him, and he attacked the finding of “good faith” for her move. The Missouri Court of Appeals, Southern District, affirmed the circuit court decision in the mother’s favor on all points. On the good faith point, we argued that the father was not aggrieved, and the appellate court agreed. We established that there was more than sufficient evidence to support the award of primary custody to the mother and that the law was correctly applied to the facts by the trial court. The Court of Appeals decided that this was correct and upheld the award of custody to our client.

Petties v. Petties, 129 S.W.3d 901 (Mo. App. 2004). The parties divorced after fifteen years and one child. The trial court entered a default judgment, set it aside, and, three years later, entered a final judgment dividing extensive property and burdening the husband with $130,000.00 in debt while the wife was allocated $275.00 in debt. The husband retained us for his appeal. The issues in the appellate court included the award of past streams of income, the marital nature of his worker’s compensation proceeds, the valuation and award of martial property including several rental homes and stock investments, and, of course, the debt. The Missouri Court of Appeals, Western District, reversed the judgment on all six points of our appeal, remanding the case for further hearings and entry of a judgment more favorable to our client. This was a complex and challenging case.

Weems et uxor v. Montgomery, 126 S.W.3d 479 (Mo. App. 2004). Mr. and Mrs. Weems made a claim for fraud against a woman who sold them their home. The seller had not told them that a heating oil tank was buried in the backyard. The trial court dismissed their suit with prejudice. The Weemses appealed. Mr. Weems, a lawyer, wrote their brief. They retained us to present their oral argument. We won: the Missouri Court of Appeals, Western District, reversed and reinstated their claims. The case turned on the distinction between dismissal, which focuses on the pleadings, and summary judgment, which may involve evidence beyond the plaintiffs’ petition. The appellate court agreed with our presentation that the trial court erred by depending on the defendant’s offering of evidence when the issue was dismissal. The Court of Appeals found that causes of action had been pleaded against the defendant both as a conservator and as administrator of the decedent’s estate. This case involved issues which were both subtle and highly technical.

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004). This is the famous “Pledge of Allegiance” case in which a panel of the United States Court of Appeals for the Ninth Circuit declared that the phrase “under God” in the Pledge was unconstitutional. 292 F.3d 597 (9th Cir. 2002). We represented the National Lawyers Association Foundation in its Friend of the Court brief. We argued that the Ninth Circuit en banc should rehear the case and consider the entire organic law of our nation: the Declaration of Independence and the Constitution as a whole. The Declaration states that all men are “endowed by their creator with certain unalienable Rights,” refers to “the laws of nature and nature’s God,” and invokes “the protection of Divine Providence.” The Ninth Circuit refused to rehear the case en banc. 328 F.3d 466 (9th cir. 2003). The Supreme Court of the United States granted certiorari, 540 U.S. 945 (2003). We filed a new amicus curiae brief in the Supreme Court. The Supreme Court held that Newdow lacked standing and dismissed his case. 542 U.S. 1 (2004). The result was that the Pledge stands intact.

Helsel v. Noellsch, 107 S.W.3d 231 (Mo. banc 2003). A lawsuit that began as a peculiar anachronism of the law ended as a landmark case of Missouri law. After he separated from his wife and had filed for divorce, David Helsel began to court Sivi Noellsch. When David later married Sivi, his ex-wife sued Sivi for “stealing” David’s love. The cause of action, once recognized throughout the country, is called alienation of affection. In this instance, a jury awarded the former wife a verdict of seventy-five thousand dollars against the new wife. Sivi then retained us for an appeal. We asked the Supreme Court of Missouri to transfer the case before any decision in the Missouri Court of Appeals. Such transfers are exceedingly rare; the Supreme Court had not granted one in the previous nine years. Nevertheless, it did order the transfer of this case. We urged the Supreme Court to abolish this tort claim because it is premised on the antiquated Anglo-Saxon concept that your spouse is your property which can be stolen by another. By obtaining a judgment for damages, the former spouse can obtain a forced sale of her husband’s or his wife’s affection. These claims are not brought to preserve marriages or reconcile couples; they are prompted by revenge. Courts can otherwise punish marital misconduct by disproportionate divisions of property in a divorce. Most states have abolished this claim in the last two decades. Only nine states still recognized it. The Supreme Court reversed the judgment and abolished the tort of alienation of affection in Missouri. Its decision was the subject of front page newspaper coverage throughout the state. The case turned on issues of public policy, consistency with precedents, and bringing the law into line with modem notions of human autonomy and dignity. The Court decided the case on the basis of our public policy analysis. At year’s end, the Missouri Lawyers Weekly described this as one of the ten “Most Important Opinions of 2003” and named me “Lawyer of the Year” for winning it.

Alumbaugh v. Union Pacific Railroad Co., 322 F.3d 520 (8th Cir. 2003). Mr. Alumbaugh lost control of his motorcycle when crossing the Union Pacific railroad tracks in Kansas City, Kansas. He was severely injured. Mr. Alumbaugh’s expert witness testified that this railroad crossing equipment was in a dangerous condition for a substantial period of time before the accident. However, the trial court refused to consider the expert’s opinion. It held that the expert testimony “invaded the province of the jury.” Eyewitness testimony and photographic evidence established that the crossing was in gross disrepair when Mr. Alumbaugh was injured. Union Pacific admitted that it inspected these tracks regularly, but it kept few records of its inspections and insisted that it did not know of this defect in the crossing. Despite the fact that a jury could believe that Union Pacific did inspect the crossing yet failed to discover or ignored the dangerous condition, the trial court ruled that there was “no evidence” that Union Pacific knew or should have known of the defective condition that caused Mr. Alumbaugh’s injuries. Summary judgment was granted in favor of Union Pacific. We were retained to represent Mr. Alumbaugh on appeal. The United States Court of Appeals for the Eighth Circuit reversed. The Eighth Circuit agreed that there was no evidence that Union Pacific had actual knowledge of the dangerous condition of the crossing. However, the Court found that the trial court erred in excluding the expert testimony and held that an “expert . . . may express his opinion on the ultimate jury question.” The Eighth Circuit found that the expert testimony, together with the eyewitness testimony offered by Mr. Alumbaugh, could allow a reasonable jury to find that the crossing had been in a dangerous condition for so long that Union Pacific should have known of the condition. As a result, Mr. Alumbaugh’s cause of action was restored to him, and he obtained a substantial settlement.

A.B. v. Liberty United Methodist Church, Case No. SC85168 (Mo. banc 2003). This sad case came to us only after the claimant had won a $650,000.00 jury verdict, had it taken away by the trial judge, and had already lost on appeal. A.B. was a fourteen year old girl who was sexually exploited by the youth minister of her church. When she was still thirteen, the youth minister was caught in a compromising situation with her. The next day, he sought to resign “before he hurt anyone else.” The pastor and a church elder refused his resignation and tried to hush up the incident. For the next three months, this youth minister had sexual intercourse with the young girl at the church. Her parents finally discovered the misconduct. A jury returned a verdict against the church for its intentional failure to supervise. The verdict was set aside by the trial judge on the theory that the state cannot inquire into the church’s supervision of its clergy since this would require involvement in questions of church doctrine as to the relationship of a church and its clergy in violation of the First Amendment. The Court of Appeals affirmed this decision. The plaintiff’s counsel then retained us to seek transfer to the Supreme Court of Missouri. Only about ten percent of such applications are granted. We pointed out that the youth minister was not an ordained clergyman, but only a part-time worker, and that the intermediate appellate court’s decision was deeply flawed in its interpretation of precedent. Upon reviewing our application, the insurance company offered to settle for its policy limits of $300,000.00 if we would agree to settle before the Supreme Court had decided on the transfer request. A.B.’s family chose to settle. The next day, the Supreme Court announced that it had accepted the case. This case demonstrated strength of persuasive writing and depth of legal analysis.

In re the Marriage of Knight, Case No. WD62614 (Mo. App. 2003). We were was retained after the trial court had entered a rather one-sided decree of divorce that burdened the husband, my client, with maintenance, child support, much of the debt, and little of the property. We sought to invoke the Soldiers’ and Sailors’ Relief Act in the motion for new trial since my client had been called up by the Army Reserves during Operation Enduring Freedom, but the motion was denied. We appealed. At the pre-submission settlement conference, we argued that the trial court erred by its unfair division of property and debt and by ignoring our client’s inability to appear in court due to his active duty status. With assistance of the settlement conference judge, we were able to obtain very major concessions and to fashion a new division which was acceptable to our client. The settlement was made possible only because we were able to convince the wife and her attorney that we were very likely to prevail on appeal.

In the Interest of D.M.S. and S.A.M.I., 96 S.W.3d 167 (Mo. App. 2003). An unmarried couple had two children. The mother had primary custody. The trial court changed this custody. The mother appealed. The father then retained us. The mother had had the benefit of strong presumptions in Missouri law that the custodial parent is suitable and, generally, children should not be shifted from home to home. She argued that there was not a substantial change in circumstances, only some unfortunate incidents. We responded that each incident demonstrated serious deficiencies in the mother’s care for the children. These incidents included the children suffering cigarette burns and whippings by her boyfriends, her not using the children’s car seats, and her exposing one of the children to a drunken brawl in which she threw a beer bottle and her friends brandished knives and a baseball bat. She kept one child out of school excessively, saying that the child disliked his teacher. One subtle issue was whether the appealed order really changed custody or just shifted visitation since the original arrangement was joint legal custody with the mother as the primary physical custodian. On the basis of our analysis, the Missouri Court of Appeals, Southern District, affirmed the judgment, agreeing that the change of primary custody was in the best interest of the two children.

Potter v. Potter, 90 S.W.3d 517 (Mo. App. 2002). The father moved the trial court to reduce his child support payment for their gifted child, claiming that he had had a decrease in income that constituted a substantial and continuing change in circumstances. After the divorce, there was a period of time when he earned quite a bit less income. The trial court reduced the amount of the father’s child support. The mother retained us to represent her on appeal. We argued that the father had not met his burden of proof to demonstrate that there was a substantial and continuing change in the child’s or his circumstances so as to justify a modification of child support. The evidence had been that the father had closed his professional office after the divorce, but now had an even better job. The record did not contain evidence of his current income exactly. The Court of Appeals noted that the only thing in the record regarding the father’s income was that he now made more money than when the parents made their settlement agreement. Therefore, the father had not met his burden of proof. The Missouri Court of Appeals, Southern District, reversed the judgment and remanded the case to the trial court with instructions to “proceed in a manner not inconsistent with this opinion.”

Leo Journagan Construction Co., Inc. v. Board of Public Utilities of Springfield, 116 S.W.3d 711 (Mo. App. 2003). The lawyer for City Utilities called us from the courthouse in Springfield the day the jury returned the verdict of nearly five million dollars against his client. We were retained to appeal the judgment. But first, we worked with the trial lawyer to draft a motion for remittitur, a motion for a new trial, and a motion for judgment notwithstanding the verdict with the trial court for the defendant. The trial judge granted the j.n.o.v. on some counts and granted us a new trial on the remaining claim. This set aside the entire verdict. (To our surprise, the opposing lawyer then called us to enlist our help in appealing for his client, the construction company. We explained that, although our name had not appeared on those motions, we were already representing the board of public utilities, so we could not talk to him about the case.) The issues on appeal were whether the trial was rendered unfair by the inappropriate argument of the construction company’s trial attorney, as the trial judge held when he granted our motions. We cross-appealed. Our issues included whether the court erred in allowing the construction company to claim extra compensation for work that was clearly covered by the contract or for which there was no evidence, and whether the trial court erred in admitting testimony that violates the Statute of Frauds and the Missouri Constitution. Numerous claims were presented at trial, and many issues were raised. The trial lasted three weeks and produced a transcript that exceeds 3,372 pages. The legal file is over 2,000 pages long. The Missouri Court of Appeals, Southern District, affirmed the two directed verdicts in our favor. It also affirmed the granting of new trials in our favor on the remaining claims.

Norsten et uxor v. Patel et alia, Case No. CV100-268CC (Circuit Court of Jackson County, Missouri 2002). Mrs. Norsten was leaving the Belton EconoLodge when a car hopped the sidewalk curb and pinned her against a wall. The car was driven by a motel employee who did not have a driver’s license. She lost part of her leg. The employee fled the area a few days later. The Norstens sued the motel owner. The trial took place not long after the terrorist attacks of September 11, 2001. The motel owner was a foreigner. The jury returned a verdict of six million dollars, the largest ever obtained in Cass County. The insurance company then retained us for its appeal. We studied the case and advised the insurer not to appeal since any new trial that we could obtain on appeal would result in another huge verdict. Although there was trial court error, the defense was stuck with an untruthful and unsympathetic owner as the defendant. We entered our appearance and then negotiated with the plaintiffs’ lawyers to reach a settlement at a significant reduction. In this case, we assisted the client by advising against an appeal. The defense’s retention of us signaled to the plaintiffs that we intended to appeal. This prompted them to settle so as to avoid the risks, cost, and delay of the appellate process.

Service Vending Co. v. Wal-Mart Stores, Inc., 93 S.W.3d 764 (Mo. App. 2002). Service Vending Company owned vending machines which stood in the entries to 444 Wal-Mart stores in 13 states. When Wal-Mart was informed of patterns of theft by Service Vending, it conducted tests which confirmed that theft was taking place regularly. Wal-Mart cancelled its arrangement with Service Vending and told Service Vending to remove its machines. Their contract required them to remove the machines within ten days. Wal-Mart gave them six weeks; when asked for more time, Wal-Mart extended the time another 30 days. Service Vending then asked for permission to sell its machines in-place. At first, Wal-Mart refused, but then later relented. The sale did not go through. The prospective buyer did not want to buy the old machines in-place. Service Vending sued for tortious interference with its expectancy of selling its machines. The trial took place in Mount Vernon, Missouri. A jury returned a verdict of one and one-half million dollars in actual damages and fifty million dollars in punitive damages. Wal-Mart then retained us on appeal. It also later retained Ann Covington, the retired Chief Justice of the Supreme Court of Missouri, to work with us on the appeal. Wal-Mart posted a bond of $54,976,250.00. We argued that Wal-Mart had legal justification for its actions under its contract, that Wal-Mart had not acted with evil motive, that Service Vending had been required by its contract to file any suit only in Arkansas, and that the punitive damages were entirely excessive. The Missouri Court of Appeals, Southern District, reversed the judgment in its entirety and remanded the case so that judgment could be entered in favor of Wal-Mart. The Court of Appeals was persuaded by our lead argument that Wal-Mart had not interfered with any real expectancy of the plaintiff. The Supreme Court of Missouri denied transfer. The Missouri Lawyers Weekly covered this appellate decision with a front page story.

United States v. Ferguson, 37 Fed.Appx. 498 (11th Cir. 2002). Mr. Kelly, Mr. Pope, and Mr. Kaemmerling were indicted for conspiracy, together with three others. They were represented by two former U.S. Attorneys serving as private defense counsel. After a twelve day jury trial in Pensacola, Florida, they were all convicted. They then retained us. We represented them at their sentencing with Jim Wyrsch, another Kansas City attorney. We were able to persuade the judge to sentence them to terms much shorter than urged by the government, but they were given, nevertheless, sentences of nine, eight, and ten years, respectively. Our clients had been offering investments. The man behind their investment program, a lawyer in New York with a major law firm, absconded from the country with over forty million dollars. He has never been caught. At the trial, the judge asked Mr. Pope, a lawyer, in front of the jury, if he didn’t agree that the principle of the investment offering was a “fallacy?” The prosecutor had served on the committee of the Florida Bar which had investigated Mr. Pope’s legal ethics in the transactions, but refused to disqualify himself. (Mr. Pope had been found not to have violated any ethics rules.) Our appeal pursued those two points, together with differences between the indictment and the evidence at trial. We also complained of a sleeping juror. We argued the case in Montgomery, Alabama. The United States Court of Appeals for the Eleventh Circuit ruled against us and affirmed their convictions and sentences. It held that although the trial was flawed, it was fair enough. This was a complex case with difficult, subtle issues and a voluminous record. The loss was particularly disappointing. We explored the possibility of seeking a writ of certiorari from the Supreme Court of the United States, but eventually concluded that we had no likelihood of success with that.

In re the Interest of A.M.R. (a Minor), D.J.S. and G.L.S. (Adoptive Parents) v. Z. T. (Natural Father) and H.D.R. (Natural Mother), 71 S.W.3d 261 (Mo. App. 2002). The grandparents sought to adopt their granddaughter, born out of wedlock. The natural father, who we referred to as “the sperm-donor,” first fought paternity, then objected to the adoption. The trial court terminated the father’s rights and approved the adoption. He appealed. The grandparents retained us on appeal. The issue was whether the trial court ignored evidence which favored the father. The Missouri Court of Appeals, Western District, affirmed the grandparents’ adoption of the little girl. It upheld the trial court’s choice of believing the natural mother when her testimony conflicted with the testimony of her one-time boyfriend.

Thomas et uxor v. City of Kansas City and City of Raytown, 92 S.W.3d 92 (Mo. App. 2002). Mr. and Mrs. Thomas lived in Kansas City, Missouri, right on the city boundary with Raytown. Their home was repeatedly flooded with sewage water which flowed from a ditch constructed by both cities. The Thomases and their grandchildren had health problems which they attributed to this flooding. They sued the cities. Their trial lawyer filed several amended petitions in response to the cities’ motions. The trial court dismissed their case for failure to state a cause of action and because the cities had sovereign immunity. We handled their appeal from this dismissal. The Missouri Court of Appeals, Western District, reversed. It ruled that the Thomases had indeed raised valid claims by the facts that they alleged, even though they did not properly identify those claims. The Court also agreed that the cities were not immune under these circumstances. The Supreme Court denied transfer. The Court of Appeals remanded the case so that Mr. and Mrs. Thomas could pursue claims in trial court.

Owasso Independent School District v. Falvo, 534 U.S. 426 (2002). Mrs. Falvo objected to the invasion of her children’s privacy by the school’s daily announcements in the classroom of the grades on their homework as a violation of the Family Education Rights and Privacy Act. The Tenth Circuit found for the family, but the Supreme Court of the United States granted its writ of certiorari. We filed an amici curiae Brief in that Court on behalf of the Council of Counseling Psychology Training Programs, fourteen professors at Stanford University, and many other professors, school teachers, counselors, and others who supported the family’s privacy rights. The Supreme Court of the United States ruled in favor of the school district, concluding that the calling out of grades by the students after they checked each other’s homework was not a violation of this federal law. Rather, the statute was held to apply only to records kept in the school’s permanent files.

Lemay v. Hardin, 48 S.W.3d 59 (Mo. App. 2001). Mr. Lemay bought a home in Kansas City. Ms. Hardin, a lady friend and a psychic, convinced him that putting her name on the title would somehow protect it from any claim of an ex-wife in Louisiana. After the closing, his relationship with Ms. Hardin soured. When she refused to give him a quit- claim deed, he sued for partition. He won 100% of the title with $3,875 awarded to her for helping him move in. She appealed. Mr. Lemay then retained us on appeal. The Missouri Court of Appeals, Western District, held that the wrong cause of action had been pleaded in the trial court and remanded for new pleading by both sides. The Supreme Court denied transfer. In the circuit court, we pursued a claim for quiet title which was granted. She counterclaimed for breach of promise to marry. We attacked her claim, and the trial court ruled against it as a matter of law, throwing it out. My client won a clear title, and Ms. Hardin executed a quit-claim deed to the property to him. She appealed, but the Court of Appeals affirmed, and the Supreme Court again denied transfer. 108 S.W.3d 705 (Mo. App. 2003).

Lewis v. Department of Social Services, 61 S.W.3d 248 (Mo. App. 2001). My client, Mr. Lewis, appealed the modification by the Division of Child Support Enforcement of his child support obligation. In modifying Mr. Lewis’s child support payments, the Division did not consider a “special needs” trust that was established for Mr. Lewis’s incapacitated and disabled child, nor did the Division consider Social Security benefits that Mr. Lewis’s daughter was receiving or income that she earned from employment. Additionally, we argued that several Missouri statutes, which authorized the Division to modify child support payments, were unconstitutional. The Missouri Court of Appeals, Western District, reversed and remanded the case to the circuit court with directions to remand the case to the Division on the issue of Mr. Lewis’s daughter’s employment income. The Supreme Court denied transfer. This decision was featured on the front page of The Missouri Lawyers Weekly to illustrate what factors should be considered when determining the appropriate amount of child support.

Foster v. Wal-Mart Stores, Inc., Case No. 00-3371 (10th Cir. 2001). Mrs. Foster, a retired farmer’s wife, tripped on a concrete block in front of a Wal-Mart store and broke her nose. She tried her case for personal injury and loss of consortium in federal court in Kansas. The jury returned a verdict of $520,652.00. Wal-Mart then retained us to pursue an appeal to the United States Court of Appeals for the Tenth Circuit. We filed post-trial motions. The trial judge was persuaded to enter a judgment for only $275,020.66. We presented the merits of our appeal to the plaintiffs’ lawyer. Before we filed our brief, we were able to negotiate a settlement for only $200,000.00. This was a savings of sixty-one percent of the jury’s verdict.

The Baker Group v. Burlington Northern Santa Fe Railway, 228 F.3d 883 (8th Cir. 2000). This case involved breaches at the end of a ten year lease to the railroad of 700 grain hauling cars owned by my client. It suffered dismissal of its tort and equity claims and summary judgment of its contract claims in the trial court. The district judge harshly criticized the Baker Group’s trial lawyers on ethical grounds. (We represented those attorneys before both the Missouri Bar and the Kansas State Bar authorities, and they were exonerated.) The questions on appeal included issue preclusion, collateral estoppel, conditions precedent, and res judicata. The United States Court of Appeals for the Eighth Circuit reversed and remanded for trial.

Caldwell-Baker et alia v. Burlington Northern Santa Fe Railway, 4 P.3d 1191 (Kan. App. 2000). This related case involved earlier breaches of the same lease in The Baker Group case. The trial court entered partial summary judgment before trial and directed a verdict at the close of trial. We prepared two large briefs with fourteen issues for the multiple appellants. The Kansas Court of Appeals reversed on all issues and ordered a new trial. The issues included estoppel, contract interpretation, attorneys fees, breach of fiduciary duties, fair dealing, fraud, and conversion. The record for these two cases was massive, encompassing thousands of documents.

Mason v. Wal-Mart Stores, Inc., Case No. WD58543 (Mo. App. 2000). Mr. Mason’s parents bought two fans, made in Taiwan, from a store, but could not remember at which store. Years later, Mr. and Mrs. Mason left their young son asleep with the fan on him and retired to their basement for the night. The next morning, they discovered that the little boy had pulled a blanket across himself and tangled the blanket with the fan blades. The fan’s motor continued to try to turn the blades until a fire broke out. Smoke had caused the death of the boy. The parents sued the Taiwan fan maker, Place Stores, and Wal-Mart Stores. Wal-Mart retained one of Kansas City’s largest law firms to defend it. The Chinese manufacturer filed a strange answer but thereafter defaulted. There was no record of this model fan ever causing a fire. The plaintiffs sent requests for admissions to Taiwan, but there was no response. The plaintiffs then sent another set of requests for admissions, knowing that they would be ignored and, therefore, admissible as “true” at trial. At the trial, the plaintiffs displayed to the jury these so-called “admissions” that, in so many words, the Chinese maker knew that its fans had and would kill American kids but that it didn’t care. The plaintiffs asked the jury for two million dollars. The jury returned a verdict of $6,000,000.00 and assessed the parents as forty percent responsible. The trial court entered judgment for $3,600,000.00 against Wal-Mart on the theory that the retail seller is responsible for all of the defects of the products it sells. We were then retained for the appeal. I began negotiations for Wal-Mart. We were able to settle the case before we filed our brief at the Missouri Court of Appeals, Western District, at a significant savings.

Randolph v. Randolph, 8 S.W.3d 160 (Mo. App. 2000). This was an appeal by a father from the divorce decree involving an order to pay child support for a daughter who had left home and had a child by a boyfriend, then returned home to live with her mother, my client. The Missouri Court of Appeals, Western District, affirmed, holding that the father had driven the girl from the marital home, so he could not avoid paying child support for her. This made new law as to child emancipation and was the subject of another front page Missouri Lawyers Weekly story.

Demayo v. Demayo, 9 S.W.3d. 736 (Mo. App. 2000). On appeal, we represented the mother, a school teacher. When the trial court divided the parties’ property in the divorce, it included the value of her state teachers pension fund account. The law of Missouri on the consideration of that item was in flux. The Missouri Court of Appeals, Western District, reversed the judgment with instructions that the marital property be redivided without including her pension or either party’s expectation as to social security entitlements. This resulted in a huge shifting of the allocation of the shares of the marital estate to my client’s great advantage. This appellate decision was significant enough to receive front page coverage in the Missouri Lawyers Weekly.

In re Kopexa Realty Venture Co., 251 B.R. 441 (10th Cir. 2000). My clients, Mr. and Mrs. Kopp, were partners in a company that owned a shopping center in Lenexa, Kansas. The company filed bankruptcy when its mortgagee foreclosed. The partners appealed a court order to sell the center. Our argument as to why the Bankruptcy Appellate Panel of the Tenth Circuit should not dismiss their appeal was used as an example of good appellate writing by Bryan A. Garner in his book, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (Oxford University Press, 1999), Chapter 89 and Example E (pp. 348, 351). See the attached copy of a portion of that book. We eventually won the appeal, and the case was remanded for further evidence.

Anderson v. General Motors Corp., 176 F.3d 488 (10th Cir. 1999), certiorari denied, 528 U.S. 976 (1999). This was a pro bono case. Denise Anderson is a mentally retarded black woman who was laid off by G.M. and never recalled. She sued under the Americans with Disabilities Act, but lost on summary judgment. We volunteered to pursue her appeal. The United States Court of Appeals for the Tenth Circuit affirmed, holding that her trial lawyer had botched the pleadings in the district court. We petitioned the Supreme Court of the United States, but it denied certiorari. As a result of our efforts in this case, the Justice Campaign of America presented us with its first Human Rights Hero Award

Hemeyer v. KRCG-TV, 6 S.W.3d 880 (Mo. banc 1999). A sheriff in the capital city of Missouri arrested a prominent state representative for drunk driving. He videotaped the arrest and processing. A local television station sought to obtain a copy of this public record. The sheriff refused to turn a copy over. The trial court and the intermediate appellate court upheld the sheriff’s refusal to produce the tape. We entered the case for the television station for the purpose of obtaining a transfer to the Supreme Court of Missouri. Our application, based on First Amendment principles and textual analysis of the statute, was accepted. The Supreme Court took the case and reversed.

Capital Savings Bank and Mercantile Bank v. Snelson, 998 S.W.2d 862 (Mo. App. 1999). This was a complicated and heated dispute over the ownership of several large certificates of deposit transferred by a father to his son and daughter as joint tenants. The son died before the father. The son’s heirs claimed part ownership due to a series of events before his death. The trial court divided the proceeds between all of the claimants. The daughter retained us to represent her on appeal. The Missouri Court of Appeals, Western District, reversed and remanded with instructions that our client, the daughter, receive all of the proceeds. The issues turned on intricate aspects of banking law.

Shoemaker v. Houchen, 994 S.W.2d 40 (Mo. App.1999). A land boundary dispute involving two new subdivisions of homes resulted in this lawsuit. Miss Houchen lost. The trial court drew a new boundary line deep into her tract and awarded the other party large dollar damages because she cut down trees in the disputed area. We represented her on appeal. The record was complex, extensive, and incomplete. The issues included adverse possession. The Missouri Court of Appeals, Western District, reversed and remanded, with instructions that the line be redrawn much in our client’s favor.

Stradford v. Caudillo, 972 S.W.2d 483 (Mo. App. 1998). Ms. Caudillo caused an accident. When Mr. Stradford later sued her, Caudillo no longer owned a car or had any insurance. Although Ms. Caudillo did not understand this, her insurance carrier was still responsible because she did have a policy at the time of the accident. Mr. Stradford’s trial lawyer contacted the carrier and worked with it to settle the case. The insurance company knew of the lawsuit and the court hearings because Mr. Stradford’s lawyer told it. Nevertheless, because Ms. Caudillo had not reported the suit herself the carrier refused to defend her and denied coverage when she suffered a three hundred thousand dollar judgment. At this stage, the insurance company entered the case and sought to set aside the judgment. The trial court denied this. The company then appealed. We represented the plaintiff on appeal. The question on appeal was whether the default judgment should have set have been set aside. The Missouri Court of Appeals, Western District, affirmed my client’s judgment, and the Supreme Court of Missouri denied transfer. (Eventually, the insurance company paid Stradford due to its bad faith denial of coverage to Ms. Caudillo.)

Jones v. Clinton, 161 F.3d 528 (8th Cir. 1998). This was a state employee’s sexual harassment case arising in Arkansas against the former governor. We were asked by the Rutherford Institute to draft the principal Brief of the Appellant on the merits, but we could not reach a satisfactory arrangement for my retention. Subsequently, we co-authored the amicus curiae Brief in the United States Court of Appeals for the Eighth Circuit, for the Dulles Area Chapter of the National Organization for Women in support of the appellant, Mrs. Paula Corbin Jones. The case was settled before opinion.

Knopke et alia v. Knopke et alia v. Knopke, 837 S.W. 2d 907 (Mo. App. 1992). This was a lawsuit in which many members of a family sued their uncle and cousins over the breakup of a family partnership and the shift in control of a family corporation, Contractors Supply Company. The defendants then sued their brother and uncle (the father of the plaintiffs) in a third-party claim. We represented that third-party defendant. After a three week trial before a special master, we won. The defendants appealed. The case presented the issue of a claim for indemnification against an innocent partner (our client) for the breach of fiduciary duties and fraud by another partner. The Missouri Court of Appeals, Western District, affirmed the trial court’s denial of this claim, and the Supreme Court of Missouri refused to review this. The plaintiffs recovered, and their father was protected. This case was so complicated that no judge wanted to try it. Consequently, it was in the courts for over twelve years.

Pfanenstiel Architects, Inc. v. Chouteau Petroleum Co., 978 F.2d 430 (8th Cir. 1992). This was an extraordinary case. We represented on appeal two architects who had defended themselves in federal court without a lawyer. The case involved a claim for the unknowing infringement of an architect’s plans for a quick oil change shop. The plans were unpublished and were copyrighted only after they had been innocently used by Mr. Smith and Mr. McCamis. Pfanenstiel won a big judgment against Chouteau and a modest judgment against our clients. Pfanenstiel appealed. Among the issues on appeal were the joint and several liability of Chouteau, which knew of the original creation of the plans, and my clients, who did not; allocation of fault; apportionment of damages; and the possible award of attorneys fees under the copyright statutes. The United States Court of Appeals for the Eighth Circuit ruled in our favor on all issues. This was our introduction to the substantive law of intellectual property.

United States v. Diaz-Albertini. This case began as direct appeal of a federal criminal conviction in New Mexico. The paramount issues were juror misconduct and a trial judge’s responsibility to inform counsel of this misconduct. The conviction was affirmed by the United States Court of Appeals for the Tenth Circuit. 772 F.2d 654 (l0th Cir. 1986). Strike one. We sought a rehearing, but, after a nineteen-month delay, this was denied. Strike two. The Supreme Court of the United States denied certiorari, 484 U.S. 822 (1987). Strike three. Back in the district court, we asked for a reduction in the ten year sentence; this was denied. Strike four. We still believed that our client, Mr. Diaz-Albertini, was not guilty and that he was convicted only because the trial was inherently unfair. Therefore, we pursued a post-conviction remedy. The issue now was the trial lawyer’s failure to report the juror misconduct when he learned of it instead of waiting until the client was convicted. We lost before the magistrate judge (strike five) and the district judge (strike six). We appealed to the United States Court of Appeals for the Tenth Circuit and lost (Case No. 89-2152). Strike seven. The Tenth Circuit denied a rehearing. Strike eight. We again petitioned the Supreme Court, but this time, the writ of certiorari was granted. The case was remanded. 498 U.S. 1061 (1991). Our client was freed and returned to his family. This case reaffirmed our idea that if you believe in your cause, never give up. In our experience, the Solicitor General’s office is supremely competent. It is reassuring to know that the citizens of this country are represented by what may be the best “law firm” in the country. It makes our victory in this case that much sweeter because it was prevailing against a most formidable adversary.

Hawkins v. Higgins, 898 F.2d 1365 (8th Cir. 1990). This was a successful appeal from a denial of a petition for habeas corpus. The petition had been denied on the grounds of failure of exhaustion of state remedies. We were appointed by the court to represent the petitioner. We convinced the United States Court of Appeals for the Eighth Circuit to find an exception where use of those remedies would have been futile for my client. This was a case of first impression.

Jenkins v. Missouri, 855 F.2d 1295 (8th Cir. 1988). This is the Kansas City, Missouri, school desegregation case. We filed in the United States Court of Appeals for the Eighth Circuit an amicus curiae brief on behalf of the taxpayers. The trial judge had raised state income tax rates and local property tax rates within the county to pay for his court-ordered improvements. We represented, pro bono, United States Senator Jack Danforth, the Washington Legal Foundation, State Representative Jean H. Mathews, and State Representative Roy F. Cagle. We were honored to be chosen by these parties to be their appellate advocate. The issue was whether a court can “levy taxes.” Subsequently, the Attorney General of Missouri filed our amicus brief in the Supreme Court of the United States, 490 U.S. 1034 (1989), where our position was accepted in part.

State v. Rahberger, 747 S.W.2d 724 (Mo. App. 1988). We were retained after the client had pleaded guilty and been sentenced to ten years imprisonment without parole. We attempted to withdraw the plea; that was denied without a hearing. The denial was reversed by the Missouri Court of Appeals, Western District, and a hearing was mandated. At the hearing, the conviction was set aside. Mr. Rahberger then pled guilty to another, lesser charge and received a sentence of time served. We established on appeal that the first guilty plea was made while the defendant was not aware of the weaknesses of the prosecution’s case.

Schlatter v. Mo-Comm Futures, 662 P.2d 553 (Kan. 1983). This case in the Supreme Court of Kansas raised extremely complex issues, such as pre-emption, federalism, personal jurisdiction, and the interpretation of several federal regulatory statutes. Summary judgment with very substantial damages against my clients was reversed, and the case against them was dismissed with prejudice by the Supreme Court. This was a particularly interesting case in which we represented on appeal two Missouri farmers who were the victims of a commodities trading fraud. Besides losing some of their money, they had agreed to allow themselves to be named directors of the corporation which was the vehicle of the fraud. After the perpetrators of the fraud were convicted in federal court, a civil suit in McPherson County, Kansas, was filed by a victimized man against the corporation, a limited partnership, and all directors and principals. Thus, one victim of the fraud was, in fact, suing the other victims. The Supreme Court of Kansas threw out the judgment, holding that mere membership upon the board o directors of a corporation doing business in Kansas did not subject the nonresident directors to in personam jurisdiction in Kansas. The Commissioner of Securities of Kansas filed an amicus curiae brief against my position.

Progressive Farmers Association case. The trial in the United States District Court for the Western District of Missouri was the longest trial in the history of Missouri, lasting 10 months and 23 days. This was a Racketeer-Influenced and Corrupt Organizations Act prosecution of 23 men. The case concluded with all five remaining defendants each convicted of six or more counts. The court appointed us to represent two of the defendants on appeal. In the United States Court of Appeals for the Eighth Circuit, those appeals were successful, with their convictions reversed and new trials ordered. (Other defendants had their convictions affirmed.) United States v. Bledsoe, 674 F.2d 647 (8^th Cir. 1982). The Department of Justice’s Criminal Division attacked these victories in its request that the Supreme Court take the case, but certiorari was denied, sub nom. Phillips v. United States, 459 U.S. 1040 (1982). To prepare the winning briefs, it was necessary to master a massive record and analyze that new, developing area of the law.

State v. Bruce, 564 S.W.2d. 898 (Mo. banc 1978). We were appointed appellate counsel for Mr. Bruce by the Missouri Supreme Court. This was an appeal from a felony conviction for cigarette smuggling. The Supreme Court of Missouri reversed the conviction, 7-0. Unanimous reversals of criminal convictions in this court are rather unusual. The appeal focused on the Constitutionality of a revenue statute as applied, the search warrant’s validity, and the jury instructions. The Court’s decision turned on the jury instructions. Only by doing so was the Constitutionality of the cigarette revenue statute upheld.