Section 9.11 Bad Faith

• Library: App Ct Prac 2015 Supp

C. (§9.11) Bad Faith

In many early cases, the courts stated that sanctions could only be awarded upon a showing of “bad faith or lack of sincerity” in bringing the appeal, even if there was no merit. See Means v. Sears, Roebuck & Co., 550 S.W.2d 780, 789 (Mo. banc 1977). This appears to be an extension of the old vexatious appeal law that interpreted § 512.160, now RSMo 2000. Several cases have even denied an award of sanctions because of a lack of “bad faith” by the appellant. See, e.g., Southard Constr. Co. v. Structural Sys., Inc., 715 S.W.2d 560, 563 (Mo. App. E.D. 1986); Meiners Co. v. Clayton Greens Nursing Ctr., Inc., 645 S.W.2d 722, 724 (Mo. App. E.D. 1982); Hall v. Farm Bureau Town & Country Ins. Co. of Mo., 634 S.W.2d 215, 216 (Mo. App. E.D. 1982).

Today, bad faith is no longer a specific requirement for an award of sanctions, and the courts focus more on the merit of the appeal. The courts do, however, consider evidence of bad faith in assessing whether the appeal is frivolous. In addition, the courts consider bad faith, or dilatory tactics, in determining the appropriate amount of sanctions to assess. See United States Fire Ins. Co. v. Madesco Inv. Corp., 573 S.W.2d 442, 444 (Mo. App. E.D. 1978).

In Property Exchange & Sales, Inc. v. Garrett, 924 S.W.2d 30, 32 (Mo. App. E.D. 1996), the Eastern District assessed sanctions of $1,000 against an appellant with a long history of litigation in the present case. The appellant had brought suit against the defendant three prior times, each time seeking recovery of a $520 security deposit. Id. at 31. In the first case, the appellant’s case had been dismissed for failure to have an attorney present to represent the plaintiff corporation. Id. The second case was dismissed on res judicata grounds, while the third was dismissed on statute of limitations grounds. Id. The appellant then filed the instant suit, which was dismissed for impermissibly splitting a cause of action. Id. After affirming, the Eastern District assessed sanctions, stating that the appellant “has been litigating variant theories of its $520.00 security deposit claim for the past eight years. . . . The matter has already been surely and finally decided.” Id. at 32.

The Western District also assessed damages after reporting a long history of litigation by the appellant in Mullen v. G.M.A.C., 919 S.W.2d 7 (Mo. App. W.D. 1996). The court began its opinion by stating that “[t]his case marks the forty-first appeal presented in this court by...