Selected Cases
The following are some examples of our appeals and related matters, with links to decisions, our appellate briefs and oral arguments, and media coverage.
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Tort: reversed the dismissal of a widow’s FELA case against a railroad for her husband’s wrongful death
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That the widow was not named personal representative of her husband’s estate until after an amendment deadline did not allow the court to dismiss her case. Instead, she still had to be allowed to amend her petition.
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Bankruptcy: reinstated law firm’s registration of $160,000 bankruptcy attorney fee order that lower court vacated
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Arguing that an out-of-state order is unenforceable is a defense to registration and is waived if not made within 30 days
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Family: affirmed finding in divorce that $349,000 increase in value of the husband’s business was marital property
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Protected the wife’s entitlement to a substantial equalization payment from the husband
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Family: obtained writ prohibiting determining contested temporary custody of child during divorce without a hearing
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Supreme Court issued published opinion on our writ petition alone, dispensing with further briefing or argument
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Intellectual property: affirmed allowing dismissal of trademark infringement claims “without prejudice”
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A district court is not bound to require a plaintiff dismissing those claims to pay the defendant’s attorney fees
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Commercial: reversed judgment that had struck subcontractor’s bona fide $400,000 mechanic’s lien as “fraudulent”
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Statute intended to remedy legally unknown clouds on title did not apply to challenge the validity of a mechanic’s lien
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Criminal: reversed felony DWI conviction and sentence and obtained re-sentencing as first-time misdemeanor
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Illinois “zero-tolerance” offense conviction not requiring impairment could not enhance DWI charge in Missouri
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The Weitz Company v. UMB Bank, N.A., No. 18-3447 (U.S. Court of Appeals, 8th Circuit 2019)
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Commercial: our appeal led to a favorable settlement after client’s multimillion-dollar claims had been dismissed
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Family: reversed order legally separating couple after the wife died, and for husband to pay the wife’s share to her son
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There cannot be a posthumous legal separation case, and instead it simply had to be dismissed once the wife died
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Civil procedure: questioned whether a court could compel release of information years after case without hearing
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Majority held settlement language allowed this; three-judge dissent would have held it required a contempt proceeding
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Class actions: defeated defendants’ requests to appeal class-action certification in Wiretap Act case
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State v. Fitzpatrick, No. 14BS-CR01104 (Circuit Court of Bates County, Mo. 2018)
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Criminal: after hearing, obtained new trial on all charges in felony sexual offense case without having to appeal
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Lawyer who represented defendant at trial had unconstitutional conflict of interest that deprived her of a fair trial
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Family: reversed long-distance custody schedule and increase in child support for father who lived in Wisconsin
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Custody schedule failed to account for schoolyear holidays and child support order was insufficiently explained
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Medical malpractice: upheld $900,000 wrongful-death verdict after physician failed to diagnose impending stroke
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Both appellate courts unanimously held that none of the defendant physician’s many claims of error had any merit
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Juvenile/Family: reversed outright the termination of our client’s parental rights over his three children
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There was no evidence of any abuse, neglect, or inability to parent legally justifying a termination
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2018, 1st half” (July 9, 2018)
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Commercial: upheld $150,000 award of prejudgment interest on balance due under construction contract
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Language that the parties struck from their final contract could not create ambiguity as to the right to interest
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2018, 1st half” (July 9, 2018)
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Family: vacated all proceedings in divorce modification case and obtained new proceedings before different judge
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That the judge was designated after the divorce but before the modification did not undo the right to a change of judge
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Constitutional: reversing trial court, obtained writ commanding county collector to allow clients to bid at tax sales
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Clients had a statutory right to be bidders and the county collector lacked power to ban anyone from the sales
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Criminal/Municipal: reversed dismissal of city’s prosecution of defendant for disorderly conduct in inciting fight
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Claim of defense of property could not be granted summarily, and city’s ordinance was constitutional
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Civil Rights: reversed summary judgment dismissing race-discrimination claim against entertainment district
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Plaintiff’s failure to list his claim in Chapter 7 bankruptcy did not judicially estop him from bringing it
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There was sufficient evidence that plaintiff was victim of developer’s scheme to exclude African-Americans
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2017, 2nd half” (Jan. 8, 2018)
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Tort: upheld $100,000 attorney fee award that lower appellate court had overturned
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Clarified that a contingent-fee lawyer fired just before settlement still can be awarded a percentage of client’s recovery
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Tort: upheld $9 million judgment for mentally disabled woman who was raped by her caregiver’s husband
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Caregiver did not have official immunity, and none of the caregiver’s other seven issues on appeal had any merit
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2016, 2nd half” (Jan. 3, 2017)
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Criminal: obtained resentencing for client convicted and sentenced for possessing twice drug quantity he actually did
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Eighth Circuit appointed us to represent the client on appeal from denial of post-conviction relief
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State ex inf. White ex rel. Clements v. Cacioppo, No. 16CY-CV01441 (Cir. Ct. of Clay County, Mo. 2016)
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Municipal: defeated mayor’s and prosecutor’s attempt to obtain writ of quo warranto ousting city councilman
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Medical malpractice: obtained new trial for client paralyzed by air injected into his heart during routine procedure
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It was error to refuse to allow the plaintiff an expert to rebut the defense’s claim that the injury was from a device defect
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State ex rel. Sternberg v. Byrn, No. SC95610 (Supreme Court of Missouri 2016)
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Constitutional: questioned whether juvenile court could compel private lawyers to represent indigent parties for free
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When the Supreme Court issued a writ and agreed to hear the challenge, the juvenile court withdrew the lawyer
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Family: upheld restraining order protecting client from brother who had attacked and severely injured him
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Justification by defense of property was an affirmative defense that had to be proven, and brother had not proven it
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Worker’s compensation: upheld $100,000 award to injured worker that lower appellate court had overturned
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Overruled 20 years of case law limiting temporary total disability awards to set term that was not in statute
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2015, 2nd half” (Jan. 4, 2016)
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Employment: reversed $235,000 judgment against client for alleged breach of non-competition agreement
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Genuine material facts remained in dispute as to all issues, precluding summary judgment and requiring a trial
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2015, 2nd half” (Jan. 4, 2016)
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Bankruptcy: reversed denial of majority shareholder’s $3.8 million secured claim on corporation’s bankruptcy estate
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Client’s loans could not be recharacterized as equity infusions, and secured claim could not be subordinated
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Required bankruptcy court to allow the $3.8 million claim as the only secured claim in the bankruptcy
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View our brief and reply brief before the Tenth Circuit
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Insurance: questioned whether insurer was required to pay $1 million malpractice judgment against disbarred lawyer
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Court of Appeals held policy exclusion did not encompass loans conned from client, but Supreme Court disagreed
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Court of Appeals decision named one of Missouri Lawyers Weekly’s “Major Opinions of 2014, 1st half” (July 7, 2014)
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Supreme Court decision named one of Missouri Lawyers Weekly’s “Major Opinions of 2015, 1st half” (July 9, 2015)
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View our brief and reply brief before the Supreme Court
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Criminal: vacated felony DWI conviction and sentence and obtained re-sentencing as a first-time misdemeanor
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More lenient DWI law enacted shortly after defendant’s charge had to be applied retroactively to him
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Family: prevented wife’s former paramour from intervening in husband’s stepparent adoption to claim child custody
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2014, 2nd half” (Jan. 5, 2015)
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Commercial: questioned whether statutory mechanic’s liens are subject to equitable subrogation in Arizona
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Court of Appeals upheld $2.1 million summary judgment foreclosing on lien, but Supreme Court sent back for trial
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Medical malpractice: questioned constitutionality of statute requiring third-party affidavit to sue
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2014, 1st half” (July 7, 2014)
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Tort: restored grant of a new trial for a personal injury plaintiff that a lower appellate court had overturned
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The trial court appropriately found that the defendant’s expert witness committed perjury, warranting a new trial
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First time since 1958 that the Supreme Court of Missouri reviewed the grant of a new trial due to perjury
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2014, 1st half” (July 7, 2014)
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Family: clarified child custody rights of husband who unknowingly raised children born of wife’s extramarital affair
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Allowed husband to file independent lawsuit seeking children’s third-party custody, in which he prevailed
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2014, 1st half” (July 7, 2014)
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certiorari denied, 572 U.S. 1002 (U.S. Supreme Court 2014)
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Employment: questioned whether unauthorized aliens could sue for wages they could not lawfully have been paid
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2013, 2nd half” (Jan. 6, 2014)
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certiorari denied, 571 U.S. 1094 (U.S. Supreme Court 2013)
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Criminal: questioned whether FBI’s warrantless GPS tracking of defendant’s car violated Fourth Amendment
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Tax: questioned whether county could impose higher commercial property tax on vacant, residentially-zoned land
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Supreme Court majority held law allowed county to do this, two-judge dissent would have held it is unjust
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2013, 1st half” (July 8, 2013)
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View our brief and reply brief before the Supreme Court
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Criminal: overturned client’s felony theft conviction as a violation of his right against double jeopardy
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Employment: defended trial court’s ruling that non-compete covenants against client were invalidly overbroad
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Supreme Court limited some invalid covenants; better result for client than in lower appellate court
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2012, 2nd half” (Jan. 7, 2013)
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certiorari denied, 567 U.S. 517 (U.S. Supreme Court 2012)
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Commercial: questioned whether federal court may refuse to follow state supreme court decision on state law
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Obtained new opinion on rehearing petition in the Eighth Circuit
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Persuaded the Eighth Circuit to stay $5.5 million judgment pending U.S. Supreme Court review
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Tax: restored 149,000% reduction in agricultural landowner’s property tax that lower court had overturned
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Land use: restored judgment declaring road to be private easement, which lower appellate court had overturned
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The owner of land over which an easement runs cannot unilaterally destroy the easement
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Constitutional: questioned whether town could charge fixed subclass of residents 750% higher sewer connection fee
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Court of Appeals held disparity was “special law” in violation of state constitution, but Supreme Court disagreed
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Featured on front page of Missouri Lawyers Weekly (Apr. 12, 2010 and Dec. 13, 2010)
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Court of Appeals decision named one of Missouri Lawyers Weekly’s “Major Opinions of 2010, 1st half” (July 6, 2010)
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Supreme Court decision named one of Missouri Lawyers Weekly’s “Major Opinions of 2010, 2nd half” (Jan. 2011)
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View our brief and reply brief before the Supreme Court
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Insurance: restored policyholder’s $475,000 verdict against its insurer that a lower appellate court had overturned
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In an “occurence” policy, the date of the injury determines coverage, not the date the injury was discovered
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2010, 1st half” (July 6, 2010)
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Mid-Mo. Waste Systems v. Lafarge N. Am., No. 09-3485 (U.S. Court of Appeals, 8th Circuit 2010)
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Commercial: our brief for a plaintiff who had lost at trial led to a favorable settlement with a large company
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Estate: overturned $325,000 settlement forced on beneficiary of estate worth more than twice that amount
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An attorney’s arguments are not evidence, and attorneys testifying must be sworn and subject to cross-examination
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Named one of Missouri Lawyers Weekly’s “Major Opinions of 2009, 2nd half” (Jan. 4, 2010)
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Phan v. State, No. 0816-CV36955 (Circuit Court of Jackson County, Mo. 2009)
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Criminal: vacated decade-old felony conviction and 13-year prison sentence; prosecution did not appeal
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Vietnamese birth certificate showing client’s actual birthdate proved he was a juvenile at the time of alleged offense
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Municipal: questioned whether city could prohibit bars allowing smoking indoors when state permitted bars to do so
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Appeal was joined by world’s largest premium cigar manufacturer as amicus
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Named one of Missouri Lawyers Weekly’s “Important Opinions of 2009, 1st half” (July 7, 2009)
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Named the Kansas City Daily Record’s third “Top Story of 2009” (Dec. 29, 2009)
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Covered in the Wall Street Journal, the Kansas City Star, and the St. Louis Post-Dispatch
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Insurance: required insurance company to pay injured couple their $1.7 million judgment against its policyholder
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An insurer who agrees to defend its policyholder without reservation cannot later deny coverage
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Named one of Missouri Lawyers Weekly’s “Important Opinions of 2009, 1st half” (July 7, 2009)
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Criminal: questioned whether non-“sex offender” could be ordered to be treated like one as a condition of probation
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First time since 1977 that a Missouri appellate court reviewed a probation condition
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Constitutional: required state to delete person from its “sex offender” registry who it had added retroactively
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We handled the proceedings in both the trial court and the appellate court, succeeding at both levels
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View our brief
