State ex rel. Hawley v. Robinson
577 S.W.3d 823
| Mo. Ct. App. | 2019Background
- The Missouri Attorney General sued James Robinson and others under the Missouri Merchandising Practices Act (MMPA), alleging Robinson, as an affiliated bankruptcy attorney, made false promises, misrepresented services, and performed little or no legal work for clients obtained through Critique Services LLC.
- Robinson repeatedly invoked his Fifth Amendment right in pleadings, discovery responses, and his deposition.
- The trial court granted partial summary judgment for the State on false promises and fraud counts, enjoined Robinson from providing bankruptcy services in Missouri, and left damages (restitution and civil penalties) for trial.
- Co-defendants Diltz and Critique entered a consent judgment admitting liability for over $100,000; Robinson moved to dismiss, claiming mootness, which the trial court denied.
- At trial three former clients testified to false or misleading statements by Robinson; the jury awarded restitution ($17,187) to two victims and $5,000 in civil penalties under the MMPA.
- On appeal, the State moved to dismiss Robinson’s brief for widespread noncompliance with Rule 84.04; the court dismissed 13 of 15 points for noncompliance but reviewed points 1 and 2 ex gratia and affirmed the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Compliance with Rule 84.04 (briefing) | N/A (State sought dismissal) | Robinson argued merits despite briefing defects | Court found Robinson’s brief violated Rule 84.04(c)-(e); dismissed points 3–15 but exercised discretion to review points 1–2 ex gratia |
| Effect of co-defendants' consent judgment (mootness/dismissal) | Robinson: consent judgment releasing co-defendants disposed of claims against him | State: consent judgment named only Diltz and Critique and did not resolve claims against Robinson | Court rejected Robinson’s reliance on Ellis; consent judgment did not release or satisfy claims against Robinson; denial of dismissal affirmed |
| Summary judgment on false promises/fraud and use of Fifth Amendment silence | Robinson: State failed to make prima facie MMPA case; court improperly relied on negative inferences from his Fifth Amendment silence | State: affidavits from victims established prima facie MMPA violations; negative inferences could supplement but not substitute for prima facie proof | Court held State met prima facie MMPA case via victims’ affidavits; adverse inferences permitted but judgment was not based solely on silence; summary judgment proper as to liability for false promises and fraud |
| Damages and trial verdict (restitution and civil penalties) | N/A on appeal (issues largely noncompliant) | Robinson contested various trial matters in noncompliant points | Because noncompliant points were dismissed, the court affirmed the jury award and penalties as to the reviewed issues |
Key Cases Cited
- Brown v. Brown, 530 S.W.3d 35 (Mo. Ct. App. 2017) (Rule 84.04 noncompliance can justify dismissal but appellate court may review ex gratia)
- Rothschild v. Roloff Trucking, 238 S.W.3d 700 (Mo. Ct. App. 2007) (statement of facts must be fair, complete, and cite record)
- ITT Commercial Fin. Corp. v. Mid-Amer. Marine Supply Corp., 854 S.W.2d 371 (Mo. banc 1993) (summary judgment standards and de novo review)
- Allen v. Bryers, 512 S.W.3d 17 (Mo. banc 2016) (plaintiff must present prima facie case; judgment cannot rest solely on adverse Fifth Amendment inference)
- Johnson v. Mo. Bd. of Nursing Adm'rs, 130 S.W.3d 619 (Mo. Ct. App. 2004) (adverse inferences from Fifth Amendment silence are permitted but plaintiff must make affirmative showing)
- Ellis v. Reisenbichler, 712 S.W.2d 468 (Mo. Ct. App. 1986) (general release that expressly includes "any other person" can extinguish claims against non-signatories)
- Kimble v. Muth, 221 S.W.3d 419 (Mo. Ct. App. 2006) (points lacking legal authority may be considered abandoned)