Changed Circumstances Support Relitigating Decided Issues

• Author: R'iele J. Sims
• Pages: 21-21

Published in Litigation News Volume 47, Number 2, Winter 2022. © 20 22 by the American Bar A ssociation. Repro duced with permissio n. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

Published in Litigation News Volume 47, Number 2, Winter 2022. © 20 22 by the American Bar A ssociation. Repro duced with permissio n. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

state supreme court has offered guidance on when

and how to bring new claims on issues that, at rst

glance, appear to be barred by binding precedent.

ABA Litigation Section leaders say the decision

helps clarify when a claim is frivolous and

when the facts and law have sufciently evolved to support

a new action.

The dispute in Mitchell v. J&M Securities, LLC, began

when the self-proclaimed “professional judgment enforce-

ment rm” J&M Securities, LLC—which is not a law rm—

led, without the assistance of an attorney, garnishment

applications and interrogatories with the court clerk against

three Missouri residents. In response, the garnishees led a

class action petition against J&M in the St. Louis County

Circuit Court. The garnishees asserted that J&M and its sole

principal had engaged in the unauthorized practice of law

by ling garnishment actions against them and hundreds of

other debtors in Missouri.

The trial court granted J&M’s motion to dismiss, holding

that “the lling out and ling of…forms was not the unau-

thorized practice of law.” It relied on a 1997 Missouri Court

of Appeals decision, Division of Employment Security v.

Westerhold, which held that seeking a garnishment is not the

practice of law.

J&M also requested attorney fees on the basis that the

garnishees’ claims against it and its owner were frivolous,

given the previous Missouri Court of Appeals opinion.

The trial court denied this request. The Missouri Court of

Appeals afrmed.

Missouri courts are authorized to grant attorney fees to

prevailing defendants, but only in “the extremely rare excep-

tion,” and “only when the defendant demonstrates the plain-

tiff pursued…frivolous claims that would warrant dismissal

of the claims and imposition of sanctions,” the Missouri

Supreme Court explained in overturning the Court of

Appeals. But unlike in some other jurisdictions, the frivolous

claim standard in Missouri does not require that the plaintiff

act in good faith or have a good faith basis for ling his or

her claim, the court noted.

According to the court, a case would be considered frivo-

lous for the purpose of a fee award if it “simply rehashed the

arguments that [past] decisions had already rejected.” The

garnishees’ case was not frivolous because the garnishment

process had changed since Westerhold. Moreover, Westerhold

did not address the ling of interrogatories.

Although the Missouri Court of Appeals had already

addressed the issue of whether ling garnishments consti-

tuted the unauthorized practice of law at the time the gar-

nishees initiated Mitchell, legally relevant factual distinctions

supported their case. This allowed the garnishees to raise new

arguments before the court, explains Tracy A. DiFillippo, Las

Vegas, NV, cochair of the Litigation Section’s Pretrial Practice

& Discovery Committee.

“You have to look at the individual facts and how they

apply to legal precedent,” DiFillippo advises. One such exam-

ple cited in the Mitchell opinion was technological advances,

which may lead to new arguments if their impact would

extend or modify decisions made under existing law.

Amendments to governing law could also provide a hook

for a new claim on a previously decided issue, counsels John

M. Barkett, Miami, FL, cochair of the Section’s Ethics &

Professionalism Committee. “Where a statute or regulation has

been amended since the earlier precedent, there is a good faith

basis for arguing for a change in the law,” Barkett concludes.

Section leaders advise that, in order to avoid ling a claim

that could be dismissed as frivolous, attorneys should make

sure that a new case has materially distinguishable facts from

prior precedent. If not, attorneys should make sure that there

is a reasonable basis for seeking a modication or extension

of precedent, or rejecting or refuting precedent, such as an

amendment to a governing statute, regulation, or policy.

RESOURCES

Mitchell v. J& M Sec., LLC, No. ED10743 (Mo . App. E.D.1d 2019).

Div. of Emp’t Se c. v. Westerhold, 950 S.W.2d 61 8 (1997).

Arcese v. Dan iel Schmitt & Co., 504 S .W.3d 772, 789–90 (M o. Ct.

App. E.D. 2 016).

Char les E. Harris II, “ Young Lawyers: The Dange r of Raising

Baseless A rguments to Evade Arbitra tion,” Alternative Dispute

Resolution (Mar. 26, 201 8).

Tyler D. Trew, “Are Changes C oming Soon to Rule 11 Sa nctions?,”

Prof’l Lia b. Litig. (July 12, 2017).

Digital versio ns of all Civil Procedur e stories, including lin ks to

resources an d authorities, are availab le at http://bit.ly/LN-civp ro.

Changed Circumstances Support

Relitigating Decided Issues

By R'iele J. Sims , Litigation News Contributing Editor

AMERICA N BAR ASSOCIATION WINTER 202 2 • VOL. 47 NO. 2 | 2 1