McCullough v. Commerce Bank
349 S.W.3d 389
Mo. Ct. App.2011Background
- McCullough and Cranston, in the Recovery Department, faced termination following an investigation into four unauthorized account transfers.
- Nesemeyer prohibited changing collector codes without management approval to prevent self-serving reassignments.
- On April 4, 2006, McCullough had an account reallocated to his portfolio after Cranston changed the collector code at McCullough's request.
- Wright reported the issue to Turnbow, who notified Dunn; Cranston admitted the code change and disclosed past similar changes.
- Both appellants were terminated; they received Right to Sue Letters from the Missouri Commission on Human Rights and sued alleging MHRA discrimination.
- The jury returned a verdict for Commerce Bank; the trial court denied the motion for a new trial after an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard for new-trial due to withheld discovery | McCullough argues Rule 74.06(b)(2) applies to inadvertent withholding. | Commerce Bank contends the Carthen/M.E.S. standard for new evidence governs, not Rule 74.06(b)(2). | Trial court did not abuse discretion; Carthen/M.E.S. standard applied. |
| Non-MAI pretext instructions required | McCullough contends four non-MAI pretext instructions should have been given. | Commerce Bank argues MAI 31.24 already states the law; non-MAI instructions were unnecessary. | No abuse; refusal to give non-MAI instructions affirmed. |
Key Cases Cited
- Carthen v. Jewish Hospital of St. Louis, 694 S.W.2d 787 (Mo.App. E.D.1985) (standard for new-trial based on new evidence with due diligence and materiality)
- M.E.S. v. Daughters of Charity Services of St. Louis, 975 S.W.2d 477 (Mo.App. E.D.1998) (newly discovered evidence left to trial court’s discretion; must be material)
- Executive Jet M'gmt and Pilot Service, Inc. v. Scott, 629 S.W.2d 598 (Mo.App. W.D.1981) (six-factor test for new evidence (ancillary to Carthen))
- McBryde v. Ritenour School Dist., 207 S.W.3d 162 (Mo.App. E.D.2006) (MAI controls; non-MAI only if MAI misstates the law)
- Daugherty v. City of Maryland Heights, 231 S.W.3d 814 (Mo.banc 2007) (post-MAI interpretation; Missouri moved away from McDonnell Douglas framework)
- Willey Enters., Inc. v. City of Kansas City, 848 S.W.2d 14 (Mo.App. W.D.1992) (fraud/misrepresentation standard for Rule 74.06(b)(2))
- Murphy v. Mo. Dept. of Corr., 506 F.3d 1111 (8th Cir.2007) (federal analog: clear and convincing evidence required for fraud/misrepresentation)