Tag Archives: fiduciary

Are Fiduciary Relationships Necessarily Excluded from the MMPA? Someone Claims So. McFarland v. Trame.

Are legal services within the M.M.P.A.?  McFarland v. Trame, No. ED99669, 2013 WL 6169474 (Mo. Ct. App., E.D. 2013), is a brief that argues so:

Appellant’s Count VI in her First Amended Petition, alleging violation of the Missouri Merchandising Practices Act, was dismissed on or about November 23, 2010. See L.F. 4. This ruling was proper and should not be disturbed because Missouri courts have not applied the MMPA to fiduciary causes of action such as the present case (i.e., cases against attorneys), and instead have only applied the MMPA to its intended types of cases, such as consumer transactions such as claims brought by automobile purchasers against automobile dealerships, and customers against roof repair and air conditioning companies. See, e.g., Schuchmann v. Air. Serv. Heating & Air. Cond., Inc., 199 S.W.3d 228 (Mo. App. S.D. 2006); Morehouse v. Behlmann Pontiac-GMC Truck Serv., Inc., 31 S.W.3d 55 (Mo. App. E.D. 2000); Viene v. Concours Auto Sales, Inc., 787 S.W.2d 814 (Mo. App. 1990); State ex rel. Webster v. Milbourn, 759 S.W.2d 862 (Mo. App. E.D. 1988).

That’s interesting.  What about real estate brokers?  Categorization of that relationship has changed in various jurisdictions over time.  What was the characterization in, let’s say, 1984, in a case discussing the relationship of H.S.C., as the real estate broker, to American, its principal and the seller?

More after the break …

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Executive Board of the Missouri Baptist Convention v. Windermere Baptist Conference Center, 2013 WL 5775055 (Mo. Ct. App., So. Dist.)

Here we have some interesting allegations.  The alleged facts include the following, in brief (summarized by your author):

The governing documents of the Missouri Baptist Convention (MBC) provide that all charters for its agencies will include various provisions giving MBC retained control.

Windermere Baptist Conference Center, an agency of MBC, was formed in 2000.  However, MBC alleges that MBC’s executive director, while acting in that capacity, arranged for charter amendments for the newly-formed agency that did not include provisions that could have been created to effect to the required retained control.  (An interesting provision in the nonprofit corporation law, Mo. Stat. 355.606, allows articles to provide a third party with a veto any articles or bylaw amendment.) It is further alleged that the then executive director was not fully candid in communicating as to the circumstances.

The brief’s quite long.  This is only a summary of a part of the pertinent allegations.

This particular claim was evidently disposed-of, against the plaintiffs, on the basis of the statute of limitations and a purported release.  The alleged circumstances don’t sound so good.  If the matter ultimately gets to a determination on the merits, it may provide some helpful guidance on pertinent Missouri principles.