SUPREME COURT OF MISSOURI

en banc

ALL STAR AWARDS & ) 

AD SPECIALTIES, INC., ) 

 ) 

Appellant-Respondent, ) 

 ) 

v. ) No. SC99007 

 ) 

HALO BRANDED SOLUTIONS, ) 

INC., ) 

 ) 

Respondent-Appellant. ) 

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY

The Honorable John M. Torrence, Judge 

All Star Awards & Ad Specialties Inc. appeals the reduction of a jury’s punitive 

damages award against HALO Branded Solutions, Inc. The jury awarded All Star 

$25,541.88 in actual damages after finding All Star’s employee, Doug Ford, breached his

duty of loyalty to All Star and HALO conspired with Ford to breach this duty of loyalty. 

The jury also found Ford and HALO tortiously interfered with All Star’s business and 

awarded All Star $500,000 in actual damages.

1

 Finally, the jury assessed $5.5 million in 

punitive damages against HALO. The circuit court thereafter reduced the punitive 

1

 Ford is not a party to this appeal or cross-appeal. 

Opinion issued April 5, 2022
2

damages award to $2,627,709.40 pursuant to section 510.265.

2

 All Star contends the 

application of the statutory punitive damages cap found in section 510.265 violated its right 

to a jury trial. 

HALO cross-appeals. In three multifarious points relied on, HALO contests the

circuit court’s rulings: (1) overruling HALO’s motion for directed verdict and partially 

overruling its motion for judgment notwithstanding the verdict (“JNOV”) as to the tortious 

interference claim; (2) allowing All Star to submit the issue of future damages to the jury

as to the tortious interference claim; (3) permitting All Star to introduce an exhibit as 

evidence of lost profits; (4) refusing to strike testimony regarding that exhibit and regarding 

lost profits; (5) overruling HALO’s motions for directed verdict and JNOV because

punitive damages were not submissible; (6) overruling, in part, HALO’s motion to reduce 

punitive damages because All Star failed to make a submissible case for punitive damages; 

and (7) overruling, in part, HALO’s motion to reduce punitive damages because even the 

reduced punitive damages award violated due process.

Despite All Star and HALO’s various challenges, the circuit court’s application of

the punitive damages cap in section 510.265 did not violate All Star’s right to a jury trial,

and the reduced award did not violate HALO’s due process rights. This Court declines to 

review the remaining arguments HALO raises on appeal, as they fail to comply with Rule 

84.04. The circuit court’s judgment is affirmed. 

 2 All statutory references are to RSMo 2016 unless otherwise indicated.
3

Factual and Procedural History3

Both HALO and All Star sell branded promotional products and offer other 

branding services to their clients. HALO is a large, full-service promotional products 

distributor employing about 2,000 people. HALO is an expanding company; its expansion 

comes, in part, from hiring other promotional companies’ account executives who have

preexisting clients. All Star is a small, family-operated business that employs about 20 

people. All Star employees build client relationships, but those clients belong to All Star 

and not individual employees. 

All Star hired Doug Ford in 1994. In early 2018, Ford informed All Star he intended 

to take a sales position with HALO. But, unbeknownst to All Star, Ford had begun working 

for HALO before the end of 2017 and had surreptitiously engaged in several activities 

intended to benefit HALO. At HALO’s request, Ford sent HALO confidential information 

about All Star customers. Ford also informed his All Star clients of his impending move 

to HALO; transferred customer orders to HALO; acquired promotional artwork and files 

from All Star for HALO; and induced All Star employees to prepare material, such as 

customer reports, that Ford intended to share with HALO.4 Ford did these things in 

coordination with HALO’s management and staff. All Star, then unaware of Ford’s 

 3 The facts are presented in the light most favorable to the jury’s verdict, giving All Star 

the benefit of all reasonable inferences and disregarding any evidence and inferences that 

conflict with the verdict. Est. of Overbey v. Chad Franklin Nat’l Auto Sales N., LLC, 361 

S.W.3d 364, 371 (Mo. banc 2012).

4 While Ford was employed at All Star, HALO processed orders from All Star clients, 

including several who no longer do business or have reduced their annual promotional 

orders with All Star. Ford promised HALO he could transfer $450,000 in sales from All 

Star, and a HALO regional vice president increased this expectation to $550,000. 
4

activities, agreed to allow Ford to stay on until he officially started working for HALO. 

About a week after Ford gave his notice, All Star discovered evidence of Ford’s activities 

and terminated him. All Star demanded HALO cease processing orders from All Star 

clients, but HALO refused. Instead, HALO processed orders only from All Star customers 

with whom Ford had a longstanding prior relationship. 

In March 2018, All Star sued Ford and HALO. A jury found HALO tortiously 

interfered with All Star’s business expectancy. The jury also found Ford breached his duty 

of loyalty to All Star and HALO conspired with Ford to breach this duty of loyalty.5

 The 

jury awarded All Star $525,541.88 in actual damages for both claims. All Star further 

alleged HALO acted with an evil motive or reckless indifference and sought punitive 

damages. In a bifurcated proceeding, the jury assessed $5.5 million in punitive damages

against HALO.

6

 The circuit court subsequently accepted the jury’s verdicts and award of 

actual and punitive damages against HALO and entered judgment for All Star. Following 

HALO’s motion for JNOV, new trial, and remittitur, the circuit court applied section 

510.265 and capped the punitive damages award at five times All Star’s actual damages, 

or $2,627,709.40, but otherwise overruled HALO’s motions and entered final judgment in 

accordance with the jury’s verdicts. All Star appealed; HALO cross-appealed. After an 

opinion by the court of appeals, this Court transferred the case pursuant to article V, section 

10 of the Missouri Constitution. 

 5 The jury found in All Star’s favor on Ford’s counter-claim for unpaid commissions. 

6 The jury also assessed $12,000 in punitive damages against Ford. 
5

Analysis

I. All Star’s Claims

All Star raises four points on appeal, all challenging the circuit court’s reduction of 

the $5.5 million punitive damages award. This Court need only consider All Star’s first 

two arguments related to the application of the punitive damages cap in section 510.265, 

as they are dispositive.7

a. The Right to Trial by Jury and Punitive Damages Caps

Article I, section 22(a) of the Missouri Constitution states “the right of trial by jury 

as heretofore enjoyed shall remain inviolate.” This provision endows litigants pursuing

legal claims today with the right to a jury trial if they would have enjoyed such right at 

common law when the Missouri Constitution was first adopted in 1820. Dodson v. 

Ferrara, 491 S.W.3d 542, 553 (Mo. banc 2016). The phrase “as heretofore enjoyed” as 

used in article I, section 22(a), however, limits the modern scope of the right to trial by 

jury. Watts v. Lester E. Cox Med. Ctrs., 376 S.W.3d 633, 638 (Mo. banc 2012). “The 

phrase heretofore enjoyed means that the constitution protects the right as it existed when 

the constitution was adopted and does not provide a jury trial for proceedings subsequently 

created.” Dodson, 491 S.W.3d at 553 (internal quotation omitted). The right applies only 

 7 In its third and fourth points relied on, All Star argues the circuit court erred by reducing 

the $5.5 million punitive damages award based on HALO’s due process and remittitur 

arguments. Because the circuit court was justified in relying on section 510.265 to reduce 

the award, this Court declines to address All Star’s challenges related to due process and 

remittitur. While the circuit court’s order stated it reduced punitive damages based on both 

section 510.265 and due process, this Court is primarily concerned with the correctness of 

the circuit court’s result, not the route taken to reach that result. See Bus. Men’s Assur. Co. 

of Am. v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999). 
6

to causes of action that would have been tried by a jury when the Missouri Constitution 

was adopted in 1820.8 Id. In 1820, juries were authorized to assess punitive damages for 

common law tort claims, and statutory caps on punitive damages did not exist. Lewellen

v. Franklin, 441 S.W.3d 136, 143 (Mo. banc 2014) (noting “imposing punitive damages 

was a peculiar function of the jury”); see also Day v. Woodworth, 54 U.S. 363, 371, 13 

(1851) (observing assessing damages by way of punishment “has been always left to the 

discretion of the jury”).

In 2005, the Missouri legislature enacted section 510.265, which caps the amount 

of punitive damages litigants can recover.9 Statutory caps on punitive damages violate the 

right to a trial by jury as provided by article I, section 22(a) if the litigant’s common law 

cause of action existed in 1820 and the claim would have supported a finding of punitive 

damages in 1820. Lewellen, 441 S.W.3d at 143; Dodson, 491 S.W.3d at 557; Overbey, 

361 S.W.3d at 375. Statutory caps on punitive damages also violate the right to a trial by 

jury as provided by article I, section 22(a) if the litigant’s common law cause of action is 

“analogous” to a claim that existed in 1820 and the claim would have supported a finding 

of punitive damages in 1820. Dodson, 491 S.W.3d at 553. But, if the particular legal cause

of action did not exist or if the modern common law claim is not sufficiently “analogous” 

 8 “Missouri’s common law is based on the common law of England as of 1607,” so litigants

may support their right to jury trial claim with authority either from this state or from 

seventeenth-century England. Watts, 376 S.W.3d at 638; see also § 1.010.

9 Section 510.265.1 limits the award of punitive damages to the greater of:

(1) Five hundred thousand dollars; or 

(2) Five times the net amount of the judgment awarded to the plaintiff against 

the defendant.
7

to a claim existing in 1820, then article I, section 22(a) does not guarantee litigants the right 

to have a jury make an unlimited determination of damages, and the legislature may enact 

statutory limits on punitive damages. Watts, 376 S.W.3d at 638. Finally, if the legal claim 

or analogous legal claim was cognizable in 1820 but did not support the assessment of 

punitive damages in 1820, then article I, section 22(a) does not ensure a modern litigant 

the right to a jury’s determination of unlimited damages on that claim and the legislature 

may enact statutory limits on punitive damages. See Dodson, 491 S.W.3d at 558 (“The 

phrase heretofore enjoyed means that the constitution protects the right as it existed when 

the constitution was adopted.” (internal quotation omitted)).

In its appeal, All Star contends the circuit court violated its right to trial by jury as 

guaranteed by Missouri’s Constitution because it reduced the jury’s punitive damage award 

pursuant to the statutory cap on punitive damages found in section 510.265. All Star asserts

that, in applying the statutory punitive damages cap, the circuit court misapplied this 

Court’s prior precedent. All Star maintains “the applicable analysis is not whether the 

plaintiff’s claims are ‘common law claims,’ and is instead whether ... civil conspiracy to 

breach the duty of loyalty and tortious interference with business expectancy [ ] are civil 

actions for damages involving a fact issue” for which a jury would have had limitless power 

to decide punitive damages in 1820 when Missouri’s Constitution was first adopted. 

All Star contends its legal claims against HALO are not subject to the statutory 

punitive damages cap in section 510.265 because the factual “nature” of both claims 

support causes of action for which juries determined damages before 1820. Specifically, 

All Star claims its civil conspiracy to breach the duty of loyalty and tortious interference 
8

with business expectancy claims against HALO are, in essence, actions for trespass or fraud

encompassing a variety of claims for wrongs to person and property tried without limitation 

to juries in 1820. All Star’s arguments lack merit and contravene the precedent to which 

it cites. Utilizing the analysis dictated by our cases, the relevant inquiry examines the cause 

of action, not the facts supporting the cause of action, as All Star contends. See Dodson, 

491 S.W.3d at 557 (finding a statutory limit on punitive damages constitutional as applied 

to the modern statutory wrongful death claim because such claim is not analogous to a 

common law loss of services claim). Having articulated the correct framework to analyze 

the issue, this Court assesses the modern, common law causes of action brought in this 

case—civil conspiracy to breach the duty of loyalty and tortious interference with business 

expectancy—to determine if these claims existed or are sufficiently analogous to common 

law legal claims existing in 1820 and would have supported a punitive damage award in 

1820. See Dodson, 491 S.W.3d at 555.

“This Court reviews constitutional challenges de novo.” Lewellen, 441 S.W.3d at 

143. This Court presumes a statute is valid and declares it unconstitutional only when the 

statute’s challenger demonstrates a clear violation of the constitution. Id. 

b. Conspiracy to Breach Ford’s Duty of Loyalty

All Star’s civil conspiracy to breach the duty of loyalty claim is rooted in the law of 

contracts and would not have supported a punitive damages award in 1820. Civil 

conspiracy is a common law tort. Oak Bluff Partners, Inc. v. Meyer, 3 S.W.3d 777, 781 

(Mo. banc 1999). Even assuming civil conspiracy as it exists today is largely the same as 

its seventeenth-century English counterpart and nineteenth-century Missouri counterpart, 
9

a civil conspiracy does not exist independent of an underlying claim. Id. (“In Missouri, if 

tortious acts alleged as elements of a civil conspiracy claim fail to state a cause of action, 

then the conspiracy claim fails as well.”). This Court, therefore, must determine how 

Missouri courts would have characterized the duty of loyalty claim in 1820.

10 

All Star attempts to position its duty of loyalty claim as arising under either trespass 

or fraud, and notes, under common law, a master could bring an action in damages against 

a servant in the master’s employ for an employee’s disclosure of the master’s secrets 

learned in the course of employment. The master’s cause of action to which All Star refers, 

however, did not arise from fraud, trespass, or any other kind of tort:

With us in England the several units, or remedial instruments of justice, are

... distinguished into three kinds: actions personal, real, and mixed.

Personal actions are such whereby a man claims a debt, or personal 

duty, or damages in lieu thereof; and, likewise, whereby a man claims 

satisfaction in damages for some injury done to his person or property. The 

former are said to be founded on contracts, the latter upon torts or wrongs

.... Of the former nature are all actions upon debt or promises[.]

Blackstone, William, Commentaries on the Laws of England, Book the Third 1113

(Lewis’s ed. 1900) (emphasis in original) (footnote omitted). In 1820, an employee’s 

common law duty of loyalty was conceptualized as an implied contract or promise, the 

breach of which was ordinarily remedied by an action of “assumpsit” or any other action 

to enforce a contractual right: 

A second class of implied contracts are such as do not arise from the express 

determination of any court, or the positive direction of any statute; but from 

natural reason, and the just construction of law. Which class extends to all 

 10 To do otherwise would permit litigants to use civil conspiracy as a Trojan horse, masking 

any common law claim created or substantially altered after 1820 to evade section 

510.265’s damages cap. 
10

presumptive undertakings or assumpsits; which though never perhaps 

actually made, yet constantly arise from the general implication and 

intendment of the courts of judicature, that every man hath engaged to 

perform what his duty or justice requires.

....

... The last class of contracts, implied by reason and construction of law, 

arises upon this supposition, that every one [sic] who undertakes any ... 

employment, trust, or duty, contracts with those who employ or intrust [sic] 

him, to perform it with integrity, diligence, and skill.

Id. at 1154, 1156 (second emphasis added).11 All Star does not assert any authority 

suggesting litigants could demand punitive damages for breaches of contractual causes of 

 11 All Star relies on a different portion of Blackstone’s commentaries:

Also if any person do hire or retain my servant, being in my service, for 

which the servant departeth from me and goeth to serve the other, I may have 

an action for damages against both the new master and the servant, or either 

of them: but if the new master did not know that he is my servant, no action 

lies; unless he afterwards refuse to restore him upon information and deman

[d]. The reason and foundation upon which all this doctrine is built, seem to 

be the property that every man has in the service of his domestics; acquired 

by the contract of hiring, and purchased by giving them wages.

Blackstone, William, Commentaries on the Laws of England, Book the First 417 (2009). 

But this provision does not support All Star’s argument. The modern duty of loyalty claim 

under which All Star sues does not encompass the right enumerated above for two reasons.

First, this provision of Blackstone’s Commentaries is not relevant to facts of the 

present case. The right of a master to sue a fellow master who had poached the first 

master’s servant was based in contract, and the fellow master’s interference with that 

contract. But here, All Star did not sue HALO for poaching Ford. In other words, All Star 

did not sue HALO for interfering with the labor contract between Ford and All Star. 

Neither party suggests harm resulted from the mere fact that Ford left All Star’s employ. 

All Star sued Ford and HALO because Ford was disloyal while he was still in All Star’s 

employ and because HALO encouraged, enabled, and profited from that disloyalty. 

Second, an employee’s duty to faithfully serve a master was originally understood 

as contractual in nature, while the modern duty of loyalty claim for which All Star demands 

unlimited punitive damages is framed within the concept of a tort. 

Neither does this passage support All Star’s tortious interference claim, as that claim 

was predicated not on HALO’s interference with Ford’s employment and the 

corresponding labor contract but rather on HALO’s interference with All Star’s poached 

clients and the contractual relationship between All Star and those clients. 
11

action before 1820.12 Regardless, All Star attempts to leverage its claim for civil 

conspiracy to breach Ford’s duty of loyalty as a tort to avoid the punitive damage cap, 

despite the fact that, at common law, the duty of loyalty was contractual in nature. All Star 

offers no authority suggesting that, prior to 1820, an employee’s breach of the implied 

promise to perform work with integrity would have enabled the employer to sue the 

 12 Punitive damages were first recognized in 1763 in England. See Huckle v. Money, 2 

Wils. 205 (K.B. 1763) (permitting “exemplary damages” for a tort action filed after the 

authorization of a generalized, “nameless warrant” used against the plaintiffs); see also 

Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C.P.1763), (validating exemplary, or punitive 

damages as compensation, punishment, and deterrence on an action for trespass); see also 

David G. Owen, Punitive Damages in Products Liability Litigation, 74 Mich. L. Rev. 1257, 

1262-63 (1976). Punitive damages were recognized in America shortly thereafter. Pac. 

Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15 (1991) (“Among the first reported American 

cases [allowing punitive damages] are Genay v. Norris, (1 Bay 6 S.C. 1784), and Coryell 

v. Colbaugh, 1 N.J.L. 77 (1791).”); The Amiable Nancy, 16 U.S. 546, 553 (1818) (“Actual 

wrongdoers in a marine trespass are responsible for exemplary damages ....”). All Star 

advances no authority suggesting a Missouri court—or any court for that matter—

adjudicating an action for assumpsit or any other action to enforce a contract sanctioned 

the use of the then-new remedy of punitive damages outside a claim for trespass or other 

common law tort. What relevant authority this Court did locate suggests awarding punitive 

damages as a remedy for a contractual breach has long been disfavored. In Trammell v. 

Vaughan, 59 S.W. 79, 82 (1900), after rejecting a claim of punitive damages on a claim for 

the breach of a contract to marry, this Court observed:

The statements of the defendant to many persons after he returned from 

Hartsburg to the effect that he never had intended marrying the plaintiff, and 

had only taken the matter as far as he had to show Alfred Longley, Bill Gibbs, 

and Mr. Reynolds that he could marry her if he wanted to, were unmanly, 

cruel, and depraved, and were properly admitted in evidence to aggravate 

plaintiff's damages. But they do not constitute a separate cause of action, 

nor can exemplary or punitive damages, as such, be recovered for a 

breach of a contract of marriage. The law punishes the defendant for the 

breach of his contract by making him compensate the plaintiff, whether 

his intentions when he entered into the contract were sincere or sinister. 

(Emphasis added). Of course, punitive damages are not presently recoverable in contract 

actions under Missouri law. Peterson v. Cont’l Boiler Works, Inc., 783 S.W.2d 896, 902 

(Mo. banc 1990). But Trammell advises Missouri law never allowed such damages for 

breaches of contractual obligations, even when bad faith motivated the breach. 
12

breaching employee and a third party outside the realm of contract law and seek punitive 

damages. 

This Court addressed a similar situation in Dodson, 491 S.W.3d 542. In Dodson, 

this Court affirmed the application of a statutory punitive damages cap for a wrongful death 

action in part because it found wrongful death, a statutorily created cause of action enabling 

a claimant to recover damages resulting from another’s death, was not “analogous to” a 

common law action for loss of services. Id. at 557. This Court explained the common law 

action for loss of services “rests on the theory that the relationship between [claimant and 

decedent] is akin to the contractual relationship of master and servant.” Id. (internal 

quotation omitted). Therefore, the recovery for this common law action “flowed from the 

impairment of ... property rights under [a] quasi-contractual relationship” which “sounds 

in contract, [and] is not analogous to a modem [sic] wrongful death claim, which sounds 

in tort. They may both be civil actions for monetary damages, but they arise from 

completely different principles of law.” Id. Dodson persuasively compels the same 

conclusion here. While All Star attempts to frame its cause of action as a common law 

trespass or fraud claim warranting unlimited punitive damages, the breach of the duty of 

loyalty claim was nothing more than a breach of contract claim under common law for 

which punitive damages were not available in 1820, even if its current iteration sounds in 

tort. All Star has, therefore, not demonstrated civil conspiracy to breach the duty of loyalty

was a claim entitling it to punitive damages at common law in 1820, and the circuit court 

did not err in applying the cap in section 510.265 to the punitive damages arising from the 

modern claim. 
13

c. Tortious Interference with Business Expectancy

Turning to the tortious interference with a business expectancy claim, All Star’s

attempts to evade the punitive damage cap in section 510.265 meet a similar fate. Tortious 

interference with a business contract was not a claim available to Missouri litigants before 

1820. See Glencoe Sand & Gravel Co. v. Hudson Bros. Comm’n Co., 40 S.W. 93, 94 

(1897), overruled by Downey v. United Weatherproofing, 253 S.W.2d 976 (1953)). In 

Glencoe, this Court refused to permit a claim of contractual interference after the defendant 

induced a railway company to breach its contract with the plaintiff to transport the 

plaintiff’s gravel and sand. Id. This Court stated, “[m]erely to induce or procure a free 

contracting party to break his covenant, whether done maliciously or not ... is not 

actionable .... An action cannot, in general, be maintained for inducing a third person to 

break his contract with the plaintiff.” Id. at 95. 

All Star attempts to avoid this Court’s holding in Glencoe by generally alleging

HALO’s actions were fraudulent and deceitful and, therefore, subject to an exception 

Glencoe carved out for third-party breaches resulting from “the fraud, deceit, or coercion 

of defendant.” Id. at 94. All Star’s tortious interference claim, however, does not rely on

or require a finding that HALO or Ford induced All Star’s clients to breach its relationship 

with All Star based on fraud, deceit, or coercion. The jury instruction for All Star’s tortious 

interference claim did not ask or direct the jury to determine if HALO or Ford acted with 

fraud, deceit, or coercion in interfering with All Star’s business expectancy. In fact, the 

instruction merely required the jury to find HALO and Ford “interfered” with a business 

expectancy “intentionally and without justification or excuse[.]” While All Star may have 
14

presented evidence of fraud, deceit, or coercion, these facts were unnecessary to establish 

All Star’s tortious interference claim. All Star’s claim, therefore, does not fall within the 

exception Glencoe enumerated, and, as Glencoe demonstrates, Missouri did not otherwise

recognize a cause of action for tortious interference with a business expectancy in 1820.13 

Attempting to evade the definitive guidance Glencoe provides, All Star insists the 

common law right to conduct one’s business without interference has been recognized at 

least since the seventeenth century without the need to independently allege fraud, deceit 

or coercion, citing Keeble v. Hickeringill, 103 Eng. Rep. 1127 (1707). In Keeble, the court 

permitted suit against a man who shot at ducks from the plaintiff’s pond for the purpose of 

scaring the ducks away and causing the plaintiff to lose profits. Id. But Keeble is easily 

distinguishable. That case arose from the fact that the defendant interrupted the plaintiff’s 

right to enjoy and build a livelihood upon the plaintiff’s real property. Id. at 1128 (“[E]very 

man that hath a property may employ it for his pleasure and profit, as for alluring and 

procuring decoy ducks to come to his pond.”). As Justice Holt stated, “in short, that which 

is the true reason is that this action is not brought to recover damage for the loss of the 

fowl, but for the disturbance.” Id. at 1129 (emphasis added). As was later clarified, Keeble 

was not an economic torts case but rather a nuisance case grounded in principles of property 

law. See Allen v. Flood, A. C. 1-181 (1898) (Keeble “was decided on the ground that the 

 13 While a tortious interference claim may have been recognized in some form under the 

common law of other states, in Glencoe this Court explained that a cause of action akin to 

the claim brought against HALO had never before been recognized in Missouri and refused 

to adopt the claim. It was not until 1953 that this Court reversed course, first recognizing 

this cause of action. See Downey, 253 S.W.2d 976.
15

act of the defendant was, a wilful [sic] disturbance of the enjoyment by the plaintiff of his 

own land for a lawful and profitable purpose, and what is called in law a nuisance.”); see 

also Simon Douglas & Ben McFarlane, Philosophical Foundations of Property Law 230 

(2013).

All Star is correct that Keeble generally states “damage to a man’s employment” is 

actionable when “a violent or malicious act is done to a man’s occupation, profession, or 

way of getting a livelihood[.]” 103 Eng. Rep. at 1128. In support of this proposition, the

court provided several hypothetical situations in which a business owner could sue another

who interrupted the owner’s business by violence or threats of violence.14 Id. All Star’s

tortious interference claim, however, is very different from an action to recover damages 

for harm suffered to one’s business as a result of violence or the threat of violence. To 

prevail in its tortious interference with a business expectancy claim, All Star was not 

required to establish or prove HALO and Ford acted violently or maliciously. As noted, 

the jury instruction for All Star’s tortious interference claim merely required the jury to 

find HALO and Ford “interfered” with a business expectancy “intentionally and without 

 14 Keeble explains:

[S]uppose Mr. Hickeringill should lie in the way with his guns, and fright the 

boys from going to school, and their parents would not let them go ... [the]

schoolmaster might have an action for the loss of his scholars. A man hath a 

market, to which he hath toll for his horses sold: a man is bringing his horse 

to market to sell: a stranger hinders and obstructs him from going thither to 

the market: an action lies, because it imports damage. Action upon the case 

lies against one that shall by threats fright away his tenants at will. Trespass 

was brought for beating his servant, whereby he was hindered from taking 

his toll; the obstruction is a damage, though not the loss of his service.

103 Eng. Rep. at 1128.
16

justification or excuse[.]” For this reason, the modern tortious interference claim is much 

broader and can be distinguished from its predecessor, which limited suit only to situations

in which the claimant demonstrated the business interference resulted from violence, fraud, 

or defamation. As the Restatement (Second) of Torts observed:

Historically the liability for tortious interference with advantageous 

economic relations developed first in cases of intentional prevention of 

prospective dealings, by violence, fraud or defamation—conduct that was 

essentially tortious in its nature, either to the third party or to the injured party

In 1853, the decision in Lumley v. Gye ... began the development of 

inducement of breach of contract as a separate tort ....Subsequent cases 

extended the rule of Lumley v. Gye to contracts other than contracts of 

service and to interference with advantageous business relations even 

when they were not cemented by a contract. 

Restatement (Second) of Torts § 766 cmt. c (1979) (emphasis added) (citation omitted). It 

was not until the nineteenth century when Lumley v. Gye was decided that a claim for 

tortious interference was cognizable on the mere allegation that the interference was 

intentional and without justification. This Court in Glencoe, however, expressly refused 

to follow the Lumley majority view and instead adopted the reasoning from the Lumley

dissent that such an action was not recognized and was not cognizable under Missouri 

common law. 40 S.W. at 94. While English courts prior to 1820 may have adjudicated 

causes of action against business and contract disruptors who were violent or threatened 

violence, All Star has not advanced any case from Missouri in which a court entertained a 

cause of action against a disruptor who merely acted “intentionally and without 

justification or excuse” until after Downey was decided. 
17

All Star also broadly alleges tortious interference, like the duty of loyalty, is a claim 

a Missouri court could have adjudicated under common law trespass. Even assuming 

Glencoe is not controlling, All Star’s trespass argument misfires. While All Star may be 

correct that trespass actions generally encompassed harm to a person’s property, the 

Blackstone’s Commentaries - the authority All Star asserts supports this argument -

indicate the trespass actions a litigant could assert for damages to property contemplated

damage only to tangible property in the litigant’s personal possession. Personal property: 

consists in goods, money, and all other moveable chattels, and things 

thereunto incident .... 

[I]njuries that may be offered to the rights of personal property ... first the 

rights of personal property in possession, and those that are in action only. 

[ ] The rights of personal property in possession are liable to two species of 

injuries: the amotion or deprivation of that possession; and the abuse or 

damages of the chattels while the possession continues in the legal owner. 

The former, or deprivation of possession, is also divisible into two branches; 

the unjust and unlawful taking them away; and the unjust detaining them, 

though the original taking might be lawful. 

Blackstone, Commentaries, Book the Third 1140 (emphasis in original) (footnote omitted). 

Aside from damages, litigants could seek the remedies of replevin, detinue, trover, and 

conversion. Id. at 1139-47. The tortious interference with a business expectancy and the 

lost profits alleged here arose from harm to the contractual relationship between All Star 

and its customers, not from any interference with All Star’s chattels.15 Cmty. Title Co. v. 

 15 Admittedly, All Star did allege Ford stole tangible property from All Star, such as 

physical files, but this fact is irrelevant to the tortious interference claim, which litigants 

can only succeed on if they demonstrate the existence of the following elements: 

(1) a contract or a valid business expectancy; (2) defendant’s knowledge of 

the contract or relationship; (3) intentional interference by the defendant 

inducing or causing a breach of the contract or relationship; (4) absence of 

justification; and, (5) damages resulting from defendant’s conduct. 
18

Roosevelt Fed. Sav. & Loan Ass’n, 796 S.W.2d 369, 372 (Mo. banc 1990). This kind of

harm to a business relationship or contract is not analogous to a cause of action for 

damages due to harm or injury to tangible property or goods. Blackstone later discusses

harm to “franchises,” but such causes of action arose from an individual’s right to use real 

property as the individual wished. Blackstone, Commentaries, Book the Third 1218-19

(discussing the rights of real property). This right, called “disturbance of franchises”

happens when a man has the franchise of holding a court-leet, of keeping a 

fair or market, of free-warren, of taking toll, of seizing waifs or estrays, or 

(in short) any other species of franchise whatsoever, and he is disturbed or 

incommoded in the lawful exercise thereof. As if another, by distress, 

menaces, or persuasions, prevails upon the suitors not to appear at my court; 

or obstructs the passage to my fair or market; or hunts in my free-warren; or 

refuses to pay me the accustomed toll; or hinders me from seizing the waif 

or estray, whereby it escapes or is carried out of my liberty; in every case of 

this kind...there is an injury done to the legal owner; his property is 

damnified; and the profits arising from such his franchise are diminished.

Id. (emphasis added). Because All Star does not allege HALO and Ford disturbed or 

interfered with the use of its real property, it cannot establish its tortious interference claim 

is analogous to—or has any relevance to—a claim of disturbance of franchise or trespass 

under common law in 1820. All Star does not proffer any other authority or make more 

specific arguments as to why these claims should be considered “analogous” to a modern 

tortious interference claim, and it cannot show the circuit court erred in applying the 

statutory damages cap in section 510.265 to that claim.

For these reasons, this Court finds All Star’s common law causes of action against 

HALO and Ford either did not exist prior to 1820 or are not analogous to claims existing 

 

Cmty. Title Co., 796 S.W.2d at 372.
19

before 1820 for which juries could have awarded punitive damages. See Dodson, 491 

S.W.3d at 555. Accordingly, this Court affirms the circuit court’s application of the 

statutory damages cap to All Star’s award of punitive damages. 

II. HALO’s Claims

In its cross-appeal, HALO alleges a variety of errors. This Court considers only one 

of the several arguments HALO asserts. 

a. HALO’s Briefing Deficiencies

In three points relied on, HALO raises seven distinct arguments. Each of HALO’s 

points relied on and corresponding arguments violate the straightforward and mandatory 

requirements in Rule 84.04 governing appellate briefing. Fowler v. Mo. Sheriffs’ Ret. Sys., 

623 S.W.3d 578, 582-83 (Mo. banc 2021). Specifically, all three of HALO’s points relied 

on are multifarious, in that they contain multiple, divisible claims. Id. “Multifarious points 

relied on are noncompliant with Rule 84.04(d) and preserve nothing for review.” Macke 

v. Patton, 591 S.W.3d 865, 869 (Mo. banc 2019); see also Rule 84.13 (instructing 

“allegations of error not briefed or not properly briefed shall not be considered in any civil 

appeal”). While this Court possesses the discretion to review non-compliant briefing, it 

must “cautiously exercise this discretion” else it “send[s] an implicit message that 

substandard briefing is acceptable.” Scott v. King, 510 S.W.3d 887, 892 (Mo. App. 2017). 
20

HALO’s briefing is rife with deficiencies, and these deficiencies are more than 

superficial.16 

Though this Court has discretion to review noncompliant briefing, it will exercise 

this discretion to review only one of HALO’s claims. The court of appeals noted HALO’s 

inadequate briefing before that court and sharply rebuked HALO for the deficiencies. The

court of appeals nonetheless exercised its discretion to review all of HALO’s relevant 

claims to the extent the arguments could be deciphered. HALO then submitted to this 

Court an appellate brief that replicated many, if not all, of those same flagrant flaws. There 

 16 Aside from being multifarious, HALO’s first point relied on, for example, references a

claim of instructional error for future damages that HALO does not later pursue or 

otherwise explain in the corresponding argument section:

Tortious Interference with Business Expectancy. The trial court erred in 

denying HALO’s motion for a directed verdict on the claim for tortious 

interference with business expectancy, in submitting to the jury the 

question of future damages on that claim, and in denying HALO’s motions 

for judgment notwithstanding the verdict on the tortious-interference claim, 

because All Star failed to submit any legally sufficient evidence of damages, 

in that the only legally sufficient evidence of damages was the $25,541.88 in 

lost profits from a handful of one-time diverted orders, which All Star 

expressly conceded and the trial court held was not the basis for the jury’s 

$500,000 award for tortious interference, leaving that award unsubstantiated 

by any competent evidence.

(Emphasis added.). HALO’s second point relied on contains two separate claims of error 

and is also multifarious:

Unreliable Evidence of Lost-Profit Damages. The trial court erred in 

permitting All Star to introduce Exhibit 235 as evidence of All Star’s lost 

profits and refusing to strike Mrs. Vogt’s testimony regarding Exhibit 235 

and lost profits, because that evidence and testimony was not admissible 

evidence of lost profits, in that Exhibit 235 was a made-for-litigation 

document containing a lay witness’s calculations prepared through an 

unreliable methodology, and Mrs. Vogt’s testimony was not based on actual 

facts or data that supported a rational estimate of lost profits.
21

was nothing inadequate about the court of appeals’ process of review, and this Court will 

not once again extend HALO the benefit of ex gratia review. 

The court of appeals, however, did not reach the due process claim raised in 

HALO’s third point relied on, contending the reduced punitive damage award violated due 

process. This point relied on also violates Rule 84.04 as it is clearly multifarious and

contains multiple, divisible claims.

17 Nevertheless, because HALO has not had the benefit 

of appellate review of this due process claim, this Court will exercise its discretion to do 

so. 

b. Due Process and Punitive Damages

HALO alleges the punitive damages award is grossly excessive and violates due 

process. HALO argues even the reduced $2,627,709.40 award is unconstitutional. The 

Missouri and United States constitutions prohibit the state from denying any person “life, 

liberty or property without due process of law.” Mo. Const. art. I, sec. 10; U.S. Const. 

amend XIV, sec. 1. The United States Supreme Court has held this guarantee protects 

tortfeasors from “grossly excessive or arbitrary punishments[.]” State Farm Mut. Auto. 

 17 The point relied on contends both that punitive damages were not submissible and that 

the punitive damages award was excessive and in violation of due process:

Punitive Damages. The trial court erred in denying HALO’s motions for a 

directed verdict and judgment notwithstanding the verdict on punitive 

damages and in denying, in part, HALO’s motion to reduce the $5.5 million 

punitive damages award, because All Star did not make a submissible case 

for punitive damages, and the punitive damages award is grossly and 

unconstitutionally excessive, in that punitive damages are an extraordinary 

and harsh remedy that should be applied only sparingly and in cases with the 

kind of outrageous conduct not present here, and are subject to due process 

constraints that were not satisfied here.
22

Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). This is because “[e]lementary notions of 

fairness” require defendants have “fair notice not only of the conduct that will subject him 

to punishment, but also of the severity of the penalty that a State may impose.” BMW of 

N. Am., Inc. v. Gore, 517 U.S. 559, 574 (1996).

When faced with a claim that a punitive damages award violates due process, a court 

must consider three guideposts: (1) the degree of the reprehensibility of the defendant’s 

conduct; (2) the ratio between the harm the defendant inflicted—measured in actual 

damages—and the punitive damages award; and (3) a comparison of the punitive damages 

award and the civil or criminal penalties that could be imposed for comparable misconduct. 

Id. at 575; see also Lewellen, 441 S.W.3d at 146.

The degree of the offensiveness of HALO’s conduct is the most important of the 

three factors. Gore, 517 U.S. at 575. Relevant to this consideration is whether:

the harm caused was physical as opposed to economic; the tortious 

conduct evinced an indifference to or a reckless disregard of the health 

or safety of others; the target of the conduct had financial 

vulnerability; the conduct involved repeated actions or was an isolated 

incident; and the harm was the result of intentional malice, trickery, 

or deceit, or mere accident. 

State Farm, 538 U.S. at 419. All Star made a compelling demonstration that HALO’s 

actions in the instant case deserve the reduced punitive damages award. In coordination 

with Ford, HALO pillaged All Star’s client information, including confidential information 

about All Star’s customers. HALO conspired with Ford to obtain a report that contained 

information on desirable, poachable clients that Ford directed All Star employees to 

unwittingly prepare. Using Ford’s position and the information he procured, HALO 
23

processed orders from All Star customers. HALO took these actions knowing Ford was 

still employed with and obliged to be faithful to All Star. When All Star learned of HALO 

and Ford’s actions and demanded HALO cease taking orders from All Star customers, 

HALO initially refused. While HALO insisted it would take orders only from those 

customers with whom Ford had a long prior relationship, it did not actually ensure Ford 

had such relationships. This Court has found “infliction of economic injury, especially 

when done intentionally through affirmative acts of misconduct ... can warrant a 

substantial penalty.” Lewellen, 441 S.W.3d at 146; see also Gore, 517 U.S. at 576. The 

first guidepost weighs in favor of the punitive damages award’s constitutional validity. 

The second guidepost—the ratio of actual damages to punitive damages—likewise 

suggests the reduced punitive damages award was constitutional. The jury awarded All 

Star $525,541.88 in actual damages. Following the jury’s determination that $5.5 million 

in punitive damages was warranted, the circuit court reduced that award to $2,627,709.40, 

or five times the actual damages award. “Single-digit multipliers are more likely to 

comport with due process, while still achieving the State’s goals of deterrence and 

retribution[.]” State Farm, 538 U.S. at 425. HALO's conduct justified the circuit court's 

single-digit-ratio award.18 

 18 In Lewellen, the defendants, a car dealership and its owner, trapped Lillian Lewellen, an 

elderly, financially vulnerable widow, into a fraudulent scheme in which they sold her a 

vehicle as part of a special deal, promising they would contribute to her payments to keep 

her monthly payment at $49. 441 S.W.3d at 140. Lewellen repeatedly told the defendants 

she could not afford to pay more than $49 a month, and the defendants assured her that 

would be the extent of her obligation, stating they would cover the rest. Id. The defendants 

later stopped contributing payments; Lewellen became unable to make up the difference. 

Id. at 141. The bank that provided her with the loan repossessed Lewellen’s vehicle. Id. 
24

The third guidepost concerns “the civil penalties authorized or imposed in 

comparable cases.” Gore, 517 U.S. at 575. “The fundamental question is whether [HALO] 

had reasonable notice that its [participation in a civil conspiracy to breach an employee’s 

duty of loyalty] and tortious interference with contracts and prospective business advantage 

could result in such a large punitive award.” Cont’l Trend Res., Inc. v. OXY USA Inc., 101 

F.3d 634, 641 (10th Cir. 1996). No Missouri statute imposes civil penalties for civil 

conspiracy to breach the duty of loyalty or tortious interference with a business expectancy. 

One Missouri court tasked with analyzing the constitutional validity of a punitive damages 

award based in part on a tortious interference claim declined to assess this guidepost, 

finding:

Tortious interference with contract involves acts that are ethically and 

morally reprehensible and are, in a civil sense, legally wrongful, 

whereas fraud claims founded in misrepresentation type acts are akin 

to criminal conduct for which sanctions might be identified and 

compared. The factor of comparative penalties is inconsequential in 

an action for tortious interference with contract. 

Env’t Energy Partners, Inc. v. Siemens Bldg. Techs., Inc., 178 S.W.3d 691, 708 (Mo. App. 

2005). In Environmental Energy Partners, the jury issued two compensatory damages 

awards—one for the defendant’s tortious interference and the other compensating the 

plaintiff for a contract that a third party breached because of the defendant’s tortious 

interference—totaling $127,546.25. Id. at 708. The corresponding punitive damages 

 

This Court found the resulting 22:1 punitive damages award satisfied due process. Id. at 

147. While HALO’s actions may not be as egregious as the defendants’ actions in 

Lewellen, the ratio of punitive to actual damages here was much smaller. The 

reprehensibility of HALO’s conduct was sufficient to support a 5:1 punitive damages 

award.
25

award totaled $500,000. Id. The court of appeals, disregarding the third guidepost, 

ultimately upheld the nearly 4:1 ratio. Id. 

Whether this Court disregards the final guidepost for the reasons Environmental 

Energy Partners articulates or discerns whether HALO had reasonable notice under the 

third guidepost, the result is the same. The third guidepost does not suggest the award was 

unreasonable and unconstitutional. In Environmental Energy Partners, the court of appeals 

affirmed the constitutional validity of a punitive damages award against a subcontractor 

who breached his subcontract with a primary contractor and interfered with the primary 

contractor’s contract with a hospital. Id. at 695. The subcontractor failed to timely perform 

his end of the subcontract and refused to communicate with the contractor and to submit 

reports used to justify the subcontractor’s payment requests to the contractor. Id. at 707. 

The subcontractor’s actions resulted in the hospital withholding payment from the 

contractor on the contract between the hospital and the contractor. Id. The subcontractor 

later attempted to secure payment for his unfinished work by filing and attempting to 

perfect a mechanic’s lien against the hospital, falsely representing his work on the 

hospital’s property was complete. Id. The subcontractor ultimately reached an agreement 

with the hospital whereby the hospital paid the subcontractor money owed to the 

contractor; the hospital also agreed not to inform the contractor of the agreement. Id. at 

708. 

While the facts vary from the present case, Environmental Energy Partners

provided a general warning that a defendant’s intentional, wrongful actions resulting in 

tortious interference with a contract alone could reap at least a punitive damages award
26

near a 4:1 ratio. This warning was sufficient to give HALO adequate notice that its conduct

constituting tortious interference and civil conspiracy to breach the duty of loyalty could 

result in substantial punitive damages award. Because none of the three guideposts suggest 

the reduced punitive damages award was arbitrary or excessive, or that HALO was 

deprived of fair notice of the potential consequences of its conduct, the 5:1 punitive 

damages award did not violate due process. This point is denied. 

Conclusion

Because the circuit court did not err in applying the punitive damages cap in section 

510.265 to reduce All Star’s award of punitive damages and the reduced award is well 

within the constitutional parameters of due process, the circuit court’s judgment is 

affirmed. 

___________________

W. Brent Powell, Judge

Wilson, C.J., Russell, Breckenridge, Fischer 

and Ransom, JJ, concur; Draper, J., dissents