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Brewer v. Cosgrove

Court of Appeals of Missouri, Eastern District, Third Division

August 2, 2016

RICHARD BREWER, Appellant,
v.
DAVID B. COSGROVE and COSGROVE LAW GROUP, LLC, Respondents/Appellants,
v.
DENISE LUNSFORD, Respondent/Cross-Appellant.

         Appeal from the Circuit Court of St. Louis County 14SL-CC00522 Honorable Michael T. Jamison

          OPINION

          James M. Dowd, Judge.

         In 2013, Denise Lunsford sued David B. Cosgrove in the circuit court of St. Louis County. In November 2013, that lawsuit was resolved upon the execution of a confidential settlement agreement by Lunsford, Cosgrove, Cosgrove Law Group, LLC ("Cosgrove Law"), and Richard Brewer, Lunsford's boyfriend. Then, in February 2014, Brewer sued Cosgrove and Cosgrove Law for breach of contract claiming that Cosgrove and Cosgrove Law had breached the terms of the settlement agreement. Lunsford did not join in Brewer's suit. In July 2014, Cosgrove and Cosgrove Law filed a counterclaim against Lunsford also alleging the breach of the settlement agreement.

         Lunsford filed a motion to dismiss Cosgrove and Cosgrove Law's counterclaim, asserting that the court lacked personal jurisdiction over her. The court agreed and granted Lunsford's motion to dismiss and awarded Lunsford $25, 000 in attorney's fees jointly and severally against Cosgrove and Cosgrove Law pursuant to the provision in the settlement agreement that allowed for such an award to the prevailing party in a lawsuit arising out of the breach of the settlement agreement.

         For its part, Cosgrove Law filed a motion to dismiss Brewer's breach of contract claim against Cosgrove Law for the failure to state a claim, asserting that while Cosgrove may have agreed to refrain from the conduct alleged to be in breach of the settlement agreement, Cosgrove Law had not. The court agreed and dismissed Brewer's claim against Cosgrove Law and awarded Cosgrove Law $25, 000 in attorney's fees against Brewer. Since only Brewer's claim against Cosgrove remained pending, the court entered its finding that there was no just reason to delay the entry of judgment, and pursuant to Rule 74.01(b), [1] entered its judgment in accordance with the aforementioned rulings.

         Brewer has appealed the dismissal of Cosgrove Law and the attorney's fees award against him. We reverse that judgment and remand for further proceedings consistent with this opinion because we find that Brewer has stated a cause of action against Cosgrove Law.

         Cosgrove and Cosgrove Law have filed a cross-appeal of the dismissal of Lunsford and the attorney's fees award in her favor. Lunsford cross-appeals as to the amount of attorney's fees she was awarded. We also reverse and remand the judgment in Lunsford's favor because we find that the court has personal jurisdiction over Lunsford.

         Standard of Review

         We review the trial court's decision to grant a motion to dismiss de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo.banc 2008). While we generally review an award of attorney's fees for an abuse of discretion, if a contract provides for the payment of attorney's fees to the prevailing party, the trial court must award those fees. Brown v. Brown-Thill, 437 S.W.3d 344, 348 (Mo.App.W.D. 2014). Contract interpretation and questions of contractual ambiguity are issues of law subject to de novo review. Monsanto Co. v. Syngenta Seeds, Inc., 226 S.W.3d 227, 230 (Mo.App.E.D. 2007). Whether a trial court may exercise personal jurisdiction over a party is a question of law that is reviewed de novo. Bryant v. Smith Interior Design Grp., Inc., 310 S.W.3d 227, 231 (Mo.banc 2010).

         Missouri Law Governing the Sealing of Court Files

         This lawsuit has been litigated under seal at trial and thus far on appeal, but we find no compelling justification for this entire case to have been litigated in secret or for this opinion to be filed under seal. See In re Transit Cas. Co. ex rel. Pulitzer Publ'g Co. v. Transit Cas. Co. ex rel. Intervening Emps., 43 S.W.3d 293 (Mo.banc 2001). There is a presumption in favor of court records being open to the public because justice is best served when it is done within full view of those to whom all courts are ultimately responsible: the public. Id. at 301. Indeed, Article I, section 14 of the Missouri Constitution states that the courts of justice shall be open to every person, section 476.170[2] provides that the sitting of every court shall be public and every person may freely attend the same, and section 510.200 states that all trials upon the merits shall be conducted in open court. This authority further demonstrates the presumption in favor of public court proceedings and records.

         The presumption in favor of openness is recognized by Supreme Court Operating Rule 2, which provides exceptions to the general rule of openness, including as is relevant here an exception for records that are confidential pursuant to court order. In re Transit Cas. Co. ex rel. Pulitzer Publ'g Co., 43 S.W.3d at 301. Moreover, Supreme Court Operating Rule 4.24 sets forth what records are deemed confidential, and a number of exceptions to the presumption of open records have been set forth by the legislature and in the decisions of our courts. Id. at 301-02. But the presumption of openness cannot be overcome absent a compelling justification that the records should be closed. Id. at 301. And while there may be justification for sealing part or all of a file, to do so a court must identify specific and tangible threats to important values in order to override the importance of the public right of access. Id. at 302.

         We acknowledge that the parties here may consider the matters giving rise to this litigation to be embarrassing, but parties are not entitled to litigate in private even if both agree with the request to do so. Nevertheless, our courts have long been adept at handling sensitive matters such as trade secrets, the identity of juvenile crime victims or certain juvenile perpetrators, illicit photographs, and medical records of non-parties. See Rule 4.24; In re Transit Cas. Co. ex rel. Pulitzer Publ'g Co., 43 S.W.3d at 302 (recognizing a number of exceptions to the presumption of open records, including, among others, trade or business secrets, certain juvenile records, victim's names, scandalous material, and certain medical records of non-parties). Trade secrets are routinely kept from the public eye through protective orders. See Rule 56.01(c); § 417.459. Yet, the entire case is not sealed or even all of the company's sensitive information if it does not rise to the level of being confidential, and courts can issue protective orders that limit the dissemination of confidential information to only those persons involved in the litigation. In re Marriage of Mangus, 227 S.W.3d 510, 513 (Mo.App.S.D. 2007).

         The balance courts must strike between the public's compelling interest in open courts with a party's request to seal materials is limited to sealing that and only that material which the litigant has demonstrated through compelling proof should be closed to the public eye. In re Transit Cas. Co. ex rel. Pulitzer Publ'g Co., 43 S.W.3d at 304. Therefore, upon remand, we direct the trial court to reconsider its wholesale sealing of the file in accordance with the aforementioned principles and to make a record setting forth the specific ...


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