No.

IN THE UNITED STATES SUPREME COURT

LONNIE SNELLING, Petitioner.

MO

KEVIN T. SEGBERS, ET AL., Respondents.

On Petition for a Writ of Certiorari to the Missouri Court of Appeals, Eastern District

PETITION FOR WRIT OF CERTIORARI

APPENDIX

VOLUME 1

Lonnie Snelling 151879th Street St. Louis, Mo. 63130 (314) 341-4609 Petitioner-Pro se I q

1

TABLE OF CONTENTS

Page

Denial of transfer by Missouri Supreme Court-Appendix A la

Missouri Court of Appeals Eastern District Order dated March 27, 2018- Appendix B 3a

Memorandum Supplementing Order dated March 27, 2018- Appendix C Ga

Motion for rehearing, or in the alternative transfer dated April 10, 2018- Appendix D 37a 'upreme Court of jTiourt en banc SC97 146 ED 105773 May Session, 2018

Lonnie Snelling, Appellant,

vs. (TRANSFER)

Kevin Segbers, et al., Respondent.

Now at this day, on consideration of the Appellant's application to transfer the above- entitled cause from the Missouri Court of Appeals, Eastern District, it is ordered that the said application be, and the same is hereby denied.

STATE OF MISSOURI-Sct.

I, Betsy AuBuchon, Clerk of the Supreme Court of the State of Missouri, certify that the foregoing is a full, true and complete transcript of the judgment of said Supreme Court, entered of record at the May Session, 2018, and on the 3 rd day of Ju1y, 2018, in the above- entitled cause.

IN TESTIMONY WHEREOF, I have hereunto set my M. hand and the seal of said Court, at my office in the City of Jefferson, this 31 day of July, 2018.

CIO Clerk

&~-..*tA5Deputy Clerk Sq

In the '41t5couri (Court of ZIPPeat.5 (atru itrict DIVISION TWO

LONNIE SNELLING, ) No. ED105773 ) Appellant, ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) ) Honorable Barbara Peebles KEVIN SEGBERS, ET AL., ) ) Respondent. ) FILED: March 27, 2018

Before Lisa P. Page, P.J., Roy L. Richter, J., and Philip M. Hess, J. PER CURIAM

Lonnie Snelling ("Appellant") appeals from what appears to be a trial court's judgment in favor of Kevin Segbers ("Respondent") in Appellant's suit for negligent trespass, negligent interference with contract and business expectancy, creating a nuisance, property damages, conspiracy, negligent infliction of emotional distress and punitive damages.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed pursuant to Rule 84.16(b). 0

In the At'.55ourt' Court of Appeat,5 (ntcrn 'at'; .5trict DIVISION TWO

LONNIE SNELLING, No. ED 105773

Appellant, Appeal from the Circuit Court of the City of St. Louis vs. Honorable Barbara Peebles KEVIN SEGBERS, ET AL,

Respondent. FILED: March 27, 2018

Before Lisa P. Page, P.J., Roy L. Richter, J., and Philip M. Hess, J.

MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b)

This memorandum is for the information of the parties and sets forth the reasons for our order

affirming the judgment.

THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT.

IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR

OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER

COURT. IN THE EVENT OF THE FILING OF A MOTION IQ REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED

IQ ANY SUCH MOTION.

Lonnie Snelling ("Appellant') appeals from what appears to be a trial court's judgment in favor of Kevin Segbers ("Respondent") in Appellant's suit for negligent trespass, negligent interference with contract and business expectancy, creating a nuisance, property damages,

conspiracy, negligent infliction of emotional distress and punitive damages. The trial court

entered a judgment in favor of Respondent on his counterclaim for abuse of process, awarding

$7,500 in actual damages and $2,500 in punitive damages. Although this Court already issued

an opinion denying an appeal from the same trial court judgment, the Missouri Supreme Court

accepted transfer of that case, which nullified our former opinion, but Appellant dismissed the

appeal before the Missouri Supreme Court could issue its own opinion. We affirm the trial

court's decision.

I. Background'

The "protracted and convoluted," history of this story begins with an alleged stickball game at an elementary school more than a decade ago, in 2004. Appellant owned residential rental property at 2040-48 East Gano Avenue in the City of St. Louis, near an elementary school located at 2128 East Gano Avenue, where Respondent and others played stickball. Appellant filed a lawsuit against Kevin Segbers and his fellow stickball players on August 23, 2004, alleging that they trespassed onto the property when retrieving balls and caused damage to the property from balls entering the property's guttering system. Cause No. 22042-07946. On

January 22, 2009, Appellant filed a dismissal of certain named -defendants butnof Respondent.

Appellant filed a second suit on January 22, 2010, exactly a year later, again naming

Respondent as defendant. Cause No. 1022-CC00199. The second suit was dismissed without prejudice on December 2, 2010, because Respondent was still named in the first lawsuit. On

1 Our prior decision set forth much of the same background, but because the Missouri Supreme Court accepted transfer of that case, our decision was nullified. We freely set forth text from our prior unreported opinion without attribution. 2 November 10, 2011, service of process in the first suit was quashed because the original service

upon Respondent's mother was insufficient, as Respondent did not live at his mother's address.

On January 4, 2012, the first suit was dismissed without prejudice for failure to prosecute. Appellant re-filed his lawsuit on January 2, 2013. Cause No. 1322-AC00042. On

August 22, 2013, service of process was quashed again because service upon Respondent's father was insufficient, as Respondent did not live at his father's address. On October 3, 2013,

Appellant's suit was again dismissed without prejudice for failure to prosecute. He appealed. In

December 2014, this Court dismissed the appeal for lack of an appealable judgment. Snelling v.

Segbers, et al., 450 S.W.3d 493 (Mo. App. E.D. 2014).

On February 5, 2015, Appellant re-filed a four-count petition against Respondent and other defendants, and that suit is the subject of this appeal. Cause No. 1522-AC01719.

Appellant's 2015 petition is titled, "Petition for Negligent Trespass by Objects/Common Law

Trespass/Negligent Interference with Contract and Business Expectancy/Creating a

Nuisance/Property Damages/Conspiracy/Negligent Infliction of Emotional Distress/Punitive

Damages." Count I is a claim for negligent trespass by objects, common law trespass, and property damages arising from Respondent's and other defendants' stickball activities. Count II is also a claim for trespass byobjécts and common law trespass as well as creating a nuisance, property damages, and negligent interference with contract, again arising from Respondent's stickball activities. Count III alleges fraud upon the court, fraudulent procurement of order and judgment, conspiracy by Respondent and other defendants to trespass and cause damage to

Appellant's property. Lastly, Count IV is a claim for negligent infliction of emotional distress.

Respondent received service on February 14, 2015. On March 17, Respondent filed his answer asserting an affirmative defense based on the statute of limitations and a counterclaim for abuse of process and seeking $25,000 in actual damages and $50,000 in punitive damages. On

April 16, Appellant filed a motion for leave to amend a request for document production, a motion for continuance, and a notice of hearing for his motions to be called up on April 23. On

April 23, the trial court granted Appellant until May 4 to respond to Respondent's counterclaim and set the next hearing for that date. On April 28, Respondent filed a motion to dismiss for failure to state a claim and untimeliness. Respondent's motion to dismiss was mailed to

Appellant on April 29. That same day, April 29, Respondent filed a motion for default judgment on his counterclaim. Respondent's motion for default judgment was mailed to Appellant on

April 30. Appellant went to the courthouse on May 4 to file his response to Respondent's counterclaim, but Appellant failed to appear at the hearing that same day. Consequently, the trial court issued orders granting both of Respondent's motions. Specifically, the court dismissed

Appellant's petition and all counts with prejudice, entered default judgment in Respondent's favor on his counterclaim, and set a hearing on damages for May 27, 2015. On May 27, the trial court held the hearing on damages and entered judgment in favor of Respondent on his counterclaim, awarding $7,500 in actual damages and $2,500 in punitive damages.

In his latest (and last) appeal, Appellant raises six points. We note that this Court previously filed an Opinion denying Snelling's. claims. The Missouri Supreme Court accepted transfer of the case, which nullifies our former Opinion. The Missouri Supreme Court entered a

Show Cause Order on November 1, 2016, Ordering Appellant to show cause why the appeal should not be dismissed for lack of a final appealable judgment. Appellant subsequently dismissed the appeal. The points raised in this appeal do not coincide with the points raised in his first appeal of the trial court's rulings.

Appellant maintains there is no final judgment in his case, yet continues to file appeals. U. Discussion

Standard of Review

In a court-tried case, the standard of review is governed by Murphy v. Canon, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court will be sustained unless there is no

substantial evidence to support it, it is against the weight of the evidence, it erroneously declares

the law, or it erroneously applies the law. Id. at 32.

Point I -No Statute of Limitations Violation

In his first point, Appellant claims the trial court erred in dismissing his lawsuit on the

basis of violation of the statute of limitation. The trial court found against Appellant on this

point.

"Due process requires that a party be informed of any proceeding which is to be accorded

finality either by actual notice or by notice reasonably calculated, under all the circumstances, to

apprise interested parties of the pendency of the action and afford them an opportunity to present

their objections." Cody v. Old Republic Title Co., 156 S.W.3d 782, 784 (Mo. App. E.D. 2004).

The record refutes Snelling's claim that he had no notice of the May 4, 2015 hearing.

Finding no error in the trial court's ruling, Point I is denied.

Point II— Dismissal for Failure to State a Claim

Having found that dismissal was proper on statute of limitations grounds, we need not address Appellant's second point, which claims error for dismissal on the grounds of failure to state a claim. A petition will be dismissed on the affirmative defense of the statute of limitations when it is absolutely clear from the face of the petition that it is time barred.' Doyle v. Crane,

200 S.W.3d 581, 585 (Mo. App. W.D. 2006). The trial court did not err in dismissing

Appellant's petition. Point denied.

5 D. Point III— Chapter 517 does not Apply Here

In his third point, Appellant asserts the counterclaim filed by Respondent was not timely

and cites Chapter 517 regarding the pleading requirements for affirmative defenses. The

counterclaim exceeded the threshold for application of Chapter 517, and that chapter does not

apply. Under Section 517.011.1(1), the provisions of Chapter 517 shall apply to cases when the

sum demanded is less than $25,000. When an amount in controversy exceeds the jurisdictional

limit, the case becomes a circuit division case for the remainder of the proccedings and does not

retain its character as a case that originated before an associate judge. Manor Square, Inc. v.

Heartthrob of Kansas City, Inc., 854 S.W.2d 38, 42 (Mo. App. W.D. 1993). When a case is pending in the circuit division, it is governed by Rules 41 through 101 of the Missouri Rules of

Civil Procedure, including the pleading requirements of Rule 55. Id. Under Rule 55.25(b), if a counterclaim is filed against a party, the party shall file an answer thereto within 30 days after the same is filed.

Here, Respondent was served on Saturday, February 14, 2015. The counterclaim was timely filed on March 17, 2015, seeking damages of $75,000. Therefore, the Rules of Procedure in Chapter 517 of the Revised Statutes of Missouri did not apply. Under Rule 55.25(b),

Appellant should have filed a reply to Respondent's counterclaim by April 16, 2015; Appellant was given additional time and ordered by the trial court to file a reply to Respondent's counterclaim by May 4, 2015.

The trial court had subject matter jurisdiction and did not err in granting Respondent's motion for default judgment. Point denied.

rel E. Point IfV -Appellant had Notice and Defaulted

In his fourth point, Appellant claims a lack of notice of the judgment on the counterclaim.

The record is clear that Appellant was aware of the May 4, 2015 court date. He failed to appear and defaulted. Appellant once again cites Chapter 517, which does not apply to this case, as discussed in Point III, supra.

Moreover, Appellant's point is difficult to understand. This is a violation of Rule

84.04(d), "which mandates that each point relied on shall '(A) identify the trial court ruling or action that the appellant challenges; (B) state concisely the legal reasons for the appellant's claim of reversible 'error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Won Ii Kim v. Shelton, 485 S.W.3d 377,

378 (Mo. App. W.D. 2016). In cases where "we are generally able to understand the nature of the claim presented," and the opposing party is "clearly able to understand and effectively address the claim in its responsive brief," we sometimes "exercise our discretion to review

[inadequately briefed] claims ex gratia." Woods v. Mo. Bd. of Prob. & Parole, 481 S.W.3d 57,

59 n.2 (Mo. App. W.D. 2015). But where Appellant's "brief is so defective as to require the appellate court and opposing counsel to hypothesize about the appellant's argument and precedential support for it, the merits cannot be reached." Kim- v. Kim, 443 S.W.3d 29,31 (Mo.

App. W.D. 2014) (quoting Lattimer v. Clark, 412 S.W.3d 420,423 (Mo. App. W.D. 2014)). To address the merits of this appeal, this Court would have to become an advocate for Appellant by searching the record for the relevant facts of the case, speculating about the possible claims of error, and crafting a legal argument on his behalf. j4 This we cannot do.

Appellant again argues that Chapter 517 somehow helps his cause, but Chapter 517 is not applicable. Point denied.

7 Point V -Abuse of Process Cause of Action is Stated

In his fifth point, Appellant claims that Respondent failed to state a cause of action

against Appellant in his counterclaim for abuse of process because "[n]o cause of action [for

abuse of process] arises where the process is employed to perform a function intended by law.

There must be a use which is beyond the scope of the process and therefore improper." Barnard

v. Barnard, 568 S.W.2d 567, 571 (Mo. App. 1978). Appellant again claims that his due process

rights were violated because he did not receive notice of the May 4,. 2 ,0,1.5 hearing where his petition was dismissed. He argues that the judgment in favor of Respondent and against

Appellant on May 27, 2015, must be reversed and remanded.

The gist of an action for abuse of process is the improper use of process after it has been

issued. Wells v. Orthwein, 670 S.W.2d 529, 532 (Mo. App. E.D. 1984). A claim for abuse of process must set forth ultimate facts that demonstrate an illegal and improper use of such process that is not warranted or authorized, an ulterior motive in exercising such process, and damages.

Respondent clearly pled each element of a cause of action for abuse of process against

Appellant in his counterclaim and therefore, did state a claim upon which relief may be granted.

The trial court heard evidence and found on May 27, 2015, in favor of Respondent and against Appellant in the amount of $7,500 and $2,500 for punitive damages for a total of$ 10,000 plus court costs. Appellant's fifth point is denied.

Point VT -No Due Process Violation

Appellant's sixth point refers to rulings made on April 4, 2017. That order denied all of

Appellant's pending motions and enjoined him from continuing to file motions seeking to re- open the case.

E;1 The trial court ruled that its judgment was upheld by the Eastern District of the Missouri

Court of Appeals, and then dismissed by the Missouri Supreme Court at the Appellant's own

request. Appellant argues now that, as required by the Fourteenth Amendment Due Process

Clause, he was not afforded the opportunity to be heard, notice, or a meaningful hearing when he

was enjoined from filing any pleadings. To establish a violation of an individual's substantive

due process rights, the "plaintiff must demonstrate both that the official's conduct was

conscience-shocking, and-that the official violated one or more fundamental rights that are

deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty,

such that neither liberty nor justice would exist if they were sacrificed." Bromwell v. Nixon, 361

S.W.3d 393,400 (Mo. bane 2012). We disagree.

Appellant's appeal to the Missouri Supreme Court in his first appeal was dismissed at his

own request. Ultimately, the judgments entered in the trial court terminated Appellant's lawsuit

based on the statute of limitations affirmative defense. The statute of limitation "will not be held

unconstitutional as denying due process unless the time allowed for commencement of the action

and the date fixed when the statute commences to run are clearly and plainly unreasonable."

Ross v. Kansas City Gen. Hosp. & Med. Ctr., 608 S.W.2d 397, 400 (Mo. bane 1980). That is not the case here, nor doôs Appellant argue as much. The judgment is affirmed. The judgment assessing actual and punitive damages on the counterclaim is also affirmed, as Appellant defaulted.

H. Damages Reguest

Respondent requests this Court order Appellant to pay Respondent damages of $5,000 for filing a frivolous appeal, pursuant to Rule 84.19. The purpose of Rule 84.19 is to prevent congestion of appellate dockets with unmeritorious cases and to compensate respondents for the time and cost of responding to a futile appeal. Blackstock v. Farm & Home Say. & Ass'n, 792

S.W.2d 9, 11 (Mo. App. W.D. 1990). While no hard and fast rule as to what constitutes a

frivolous appeal has been advanced and the issue must be considered on a case-by-case basis, the

test generally used is whether the appeal presents any justiciable question and whether it is so

readily recognizable as devoid of merit on the face of the record that there is little prospect of

success. Id. (internal citations omitted). The issues presented on appeal must be at least fairly debatable in order to avoid assessment of damages for frivolous appeals. Ld. Damages for frivolous appeals should' be awarded with great caution, as the appellate court must not chill appeals of even slight or colorable merit, and even slight merit is evidence of good faith on the part of the appellant. Id. Based on these principles, Respondent's prayer for damages is granted in the amount of $5,000. Appellant's Motion for Sanctions is denied.

III. Conclusion

The judgment of the trial court is affirmed pursuant to Rule 84.16(b).

PER CURIAM.

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