Kinsky v. 154 Land Co.
371 S.W.3d 108
Mo. Ct. App.2012Background
- Areaco created the Grayhawk governing agreement in 1966 for 20 years with 20-year extensions; amendments require a instrument signed by the Corporation and two-thirds of then-owners.
- In 1986 the agreement was extended; in 2005 Areaco sold its Grayhawk interest to 154, and the POA's interests were transferred to the 154 Homeowners’ Association.
- At expiry in 2006, 154 circulated an Amended Agreement with votes showing 2,632 favorable votes by 154-owned lots and additional favorable votes from other owners; many abstained or voted against.
- In 2005-2005, Kinsky represented Jackson and Manion in earlier related suits challenging the Amended Agreement; Jackson suit sought voiding the transfer and voting scheme.
- Jackson trial court granted partial summary judgment upholding the Amended Agreement; Jackson, represented by Kinsky, appealed and the appellate court affirmed in 2009.
- In 2009, Kinsky, now owning a Grayhawk lot, sued 154 for declaratory judgment arguing the Amended Agreement was void; 154 moved for summary judgment on merits and on res judicata/collateral estoppel; trial court granted in favor of 154; Kinsky appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether collateral estoppel bars Kinsky’s claim due to privity via control | Kinsky contends no privity via control over Jackson; he did not have day in court. | 154 argues Kinsky’s control over Jackson creates privity, binding him. | Yes; privity via control established, collateral estoppel applies. |
| Whether res judicata also bars the claim | Kinsky asserts a different objective or not barred by prior judgment. | 154 contends same claims and facts were litigated; preclusion applies. | Collateral estoppel supports preclusion; res judicata also applicable to bar relitigation. |
Key Cases Cited
- Allen v. McCurry, 449 U.S. 90 (U.S. 1980) (preclusion applies to final judgments on the merits)
- Kesterson v. State Farm Fire & Cas. Co., 242 S.W.3d 712 (Mo. banc 2008) (cite for collateral estoppel standards)
- Creative Walking, Inc. v. Am. States Ins. Co., 25 S.W.3d 682 (Mo. App. E.D.2000) (collateral estoppel/Res judicata discussion)
- Taylor v. Sturgell, 553 U.S. 880 (U.S. 2008) (preclusion principles; privity through control recognized)
- Montana v. United States, 440 U.S. 147 (U.S. 1979) (non-parties controlling earlier litigation may be bound under collateral estoppel)
- Shahan v. Shahan, 988 S.W.2d 529 (Mo. banc 1999) (elements of collateral estoppel in Missouri)
- Smith v. Jenkins, 562 A.2d 610 (D.C. App. 1989) (lead attorney privity through control over litigation)
- Phelps v. Hamilton, 122 F.3d 1309 (10th Cir. 1997) (attorney control establishes privity for collateral estoppel)
- Rucker v. Schmidt, 794 N.W.2d 114 (Minn. 2011) (discusses per se vs. control-based privity rule)
- Wendt v. Gen. Accident Ins. Co., 895 S.W.2d 210 (Mo. App. E.D.1995) ( Missouri prior rejection of Restatement § 39 approach (distinguishable))