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Case summaries for March 8 - March 14, 2024


Each week, The Missouri Bar provides links to all hand downs published online during the past seven days by the Supreme Court of Missouri and the Missouri Court of Appeals. The Missouri Bar has created headings and summaries for each case. Summaries are not part of the opinions of the Court. They have been prepared for the convenience of the reader and should not be quoted or cited.

Administrative | Appellate | Civil | Criminal | DWI | Employment Security | Evidence | Orders of Protection | Post-Conviction | Real Estate



Circuit court discretion substituted for agency discretion 
Statutes provided for a hearing on license discipline before a licensing agency without any hearing before the Administrative Hearing Commission. That decision was subject to judicial review for support in competent and substantial evidence. Substantial and competent evidence did not support a decision that was contrary to the overwhelming weight of the evidence. The decision was also subject to review for arbitrary and capricious decision-making. A decision is arbitrary and capricious when it overlooks significant facts. Facts relevant to license discipline included “not only the nature of the misconduct which provide[d] cause for discipline, but also evidence of the licensee’s rehabilitation and other mitigating circumstances.” Rehabilitation and other mitigating circumstances were the subject of the licensee’s testimony and other evidence, which the agency did not determine to be less than credible, yet the agency concluded that the licensee had not addressed the licensee’s dishonesty. “The [agency’s] own evidence reflects that [the licensee] has acknowledged and accepted responsibility for her past actions.” Voluntary compliance with a judgment can estop or moot an appeal of that judgment. But an agency’s compliance was not voluntary when the agency has no other option, like a stay pending appeal, and could still prevail on appeal. 
(Overview Summary) 
Dana Casnocha-Jones vs. State Board of Nursing 
Missouri Court of Appeals, Western District – WD86087



Errors unpreserved 
The purpose of rules governing the preservation of error was to refine appellant’s claim, for both the circuit court and appellate courts, so preservation in a jury-tried case requires a motion for new trial or motion for judgment notwithstanding the verdict. Neither of appellant’s motions for new trial or for judgment notwithstanding the verdict raised the issue of judicial admissions that constituted appellant’s points relied on. An argument section without citation to legal authority and without references to the record “substantially impairs meaningful review.” “The plain error rule is not a refuge for the maladroit or neglectful.” 
(Overview Summary) 
David L. Williams, Respondent, vs. St. Charles Auto Mart, Inc. d/b/a Auto Solutions, Appellant. 
Missouri Court of Appeals, Eastern District – ED111625


Notice of appeal too late 
The Court of Appeals’ jurisdiction was dependent on a notice of appeal timely filed from a final judgment. Final judgment includes an order granting an injunction. But it also includes an order dissolving an injunction for changed facts that supported granting the injunction. The filing of an authorized after-trial motion extends the circuit court’s authority, but the circuit court’s attempts to extend its authority and the parties’ acquiescence in such attempts do not. From the date on which the judgment dissolving the injunction became final, appellant filed a notice of appeal too late, so the Court of Appeals dismisses the appeal. 
(Overview Summary) 
JWSTL, LLC, Appellant, vs. Union Pacific Railroad Company, Respondent. 
Missouri Court of Appeals, Eastern District – ED110101



To set aside default, defense must be meritorious, not victorious 
Default judgments were subject to being set aside on a timely motion showing of good cause for the default, which included counsel’s excusable neglect to calendar a hearing, and a meritorious defense to the underlying claim. The underlying claim was for unlawful detainer based on breaches of a lease and defendants proffered an “arguable theory” supported by “some sworn evidence” that defendants had cured the breaches. The merits of that defense were not at issue, and not determined, on a motion to set aside or on appeal. Circuit court erred in denying defendant’s motion to set aside the default. 
(Overview Summary)
Steve Brown Authorized Agent and Assignee of the Trustees of the Brown Family Trust, Respondent, vs. Pro Basement, Inc., et al., Appellants. 
Missouri Court of Appeals, Eastern District - ED111898

Summary judgment reversed on format 
An appellate court could raise a failure to comply with the rule governing summary judgment sua sponte. Rule required movant to attach a statement of uncontroverted material facts in numbered paragraph format and that requirement is not subject to waiver. Summary judgment reversed and remanded. 
(Overview Summary) 
Dennis Laramore, Appellant, vs. Zachary Jacobsen, et al., Respondents. 
Missouri Court of Appeals, Eastern District - ED111782



Medical treatment v. 96-hour commitment 
Statute excludes evidence of controlled substances discovered in the course of a good-faith request for medical treatment “for . . . a drug or alcohol overdose or other medical emergency [.]” Medical treatment did not include execution of a warrant for involuntary commitment for mental health reasons. That procedure constitutes “an ex parte legal action through the probate division of the circuit court” and was motivated by the requester’s fear for the safety of persons other than defendant. Preparing defendant for transportation included a search for safety reasons that did not require a search warrant. Defendant’s possession of methamphetamine, revealed during processing for commitment, was therefore not subject to suppression. 
(Overview Summary) 
State of Missouri vs. Craig Neil Salcedo 
Missouri Court of Appeals, Western District - WD86061


No enhanced sentence when value not an element 
“[T]he animal abuse statute . . . criminalize[d] intentionally or purposely killing an animal in any matter not permitted or exempted by specified statutes” that permit humane killing by specified persons. Defendant did not show that he was among the specified persons so a humane method was irrelevant and the approved instruction was not required. Evidence that defendant possessed ammunition of the type used in multiple killings was relevant logically and legally; and, even if it were not, no prejudice resulted because “the evidence of [defendant’s] deliberation and guilt of first-degree murder was overwhelming.” Plain error occurred when a written judgment varied from the judgment as spoken in open court and imposed sentences unauthorized by law. A statute authorized an enhanced sentence when the value of the property stolen was an element of the offense. Defendant’s offense was stealing a motor vehicle and a firearm without regard to value. Remanded to correct judgment. 
(Overview Summary) 
State of Missouri vs. Grayden Lane Denham 
Missouri Court of Appeals, Western District - WD85214


Errors unpreserved in circuit court and on appeal 
In a criminal action tried to a jury, preservation of error required a motion for new trial timely filed, which did not describe defendant’s motion for new trial. To show error in the exclusion of evidence, defendant must show that the excluded evidence was admissible, so defendant must address the circuit court’s reason for excluding the evidence. Failure to do so preserves nothing for appeal. Defendant did not show that the circuit court barred defendant from arguing any theory of defense. 
(Overview Summary) 
State of Missouri vs. Aasim I. Karim 
Missouri Court of Appeals, Western District – WD85181


Canons of construction bar earned compliance credits 
A writ of prohibition could issue to prevent a judicial ruling in excess of authority, like releasing a probationer from probation through an unauthorized application of earned compliance credits. Earned compliance credits generally reduced probation by a calendar month for every 30 days of compliance with terms of probation, but specific provisions applied to probationer’s offenses, one denying credit and one permitting the denial of credit. Canons of construction led to a reading denying credit to probationer. “We note that, while we grant the writ of prohibition, we are sympathetic to the trial court’s predicament: multiple amendments to Section 217.703 have rendered this statute exceedingly difficult to interpret. The [circuit] court’s reading of the statute was reasonable, even though we ultimately disagreed with that reading. We encourage the Missouri General Assembly to again amend [the statute] to reconcile the conflicting language.” 
(Overview Summary) 
State of Missouri, ex rel., Andrew Bailey, Relator, vs. The Honorable Terry Tschannen, Circuit Judge, Respondent. 
Missouri Court of Appeals, Eastern District – ED112417


Choice of greater offense over lesser offense shows no other instruction needed 
The elements of first degree murder include deliberation, which the State showed with evidence that defendant walked up to victim, shot victim in vital spots, fled without summoning medical assistance, and fired a parting shot. Evidence of defendant’s false police report was not offered as, and therefore did not constitute evidence of, uncharged crimes; but was offered to show a subterfuge concealing defendant’s guilt. Defendant’s outburst did not require the circuit court to grant a defense motion for a mistrial. Failure to submit an instruction waives all but plain error as to that instruction. No instruction on voluntary manslaughter was due because there was no evidence of adequate cause and sudden passion. And when the jury found defendant guilty of a greater offense over one lesser-included offense, no prejudice could have resulted from failure to submit an instruction on another lesser offense. 
(Overview Summary) 
State of Missouri, Respondent, v. Martin Redmond, Appellant. 
Missouri Court of Appeals, Eastern District – ED111336


Escape rule includes evading probation supervision 
An appellant seeking relief in the courts system must not disregard the courts system. The escape rule allowed an appellate court to dismiss the appeal of an appellant on probation who absconded from probation. Seeing no grounds for relief in the appellant’s record, the Court of Appeals dismisses the appeal. 
(Overview Summary) 
State of Missouri, Respondent, v. Brandie M. Farless, Appellant. 
Missouri Court of Appeals, Eastern District – ED111272


“Sandbagging” waives review 
Any error in instructions as to which the defense has stated “no objection” was invited error that waives even plain error review. The trial docket sheet reflected a jury inquiry, as to which Defendant did not object and did not show that he was unaware, so defendant did not preserve any objection to the circuit court’s response. The response, sending duly admitted evidentiary exhibits to the jury as defendant encouraged in closing argument, resulted in no prejudice. “Defense counsel invited error or at the very least sand-bagged the [circuit] court by not objecting to the verdict directors, consistently and repeatedly expressing no objection to form when asked, and then arguing that the verdict directors were not specific enough for the jury to convict on any count.” 
(Overview Summary) 
State of Missouri, Respondent, v. John R. Vitale, Appellant. 
Missouri Court of Appeals, Eastern District – ED110837


No defense in self-induced methamphetamine hallucination 
The elements of second degree burglary include the intent to commit a crime, which the State showed with evidence that defendant threatened elderly victims with a knife in their own home. The defense of justification by necessity of emergency measures is an affirmative defense the elements of which include avoidance of a significant harm. The only significant harm that defendant claimed to avoid was in defendant’s self-induced methamphetamine hallucination. “Additionally, the jury was free to disbelieve [defendant’s] testimony about the imaginary kidnapping victim and instead could have concluded that in a drug-induced state he broke in with the intent to attack this couple with a knife and simply fabricated the kidnapping victim.” 
(Overview Summary) 
State of Missouri, Respondent, vs. Timothy O'Hara, Appellant. 
Missouri Court of Appeals, Eastern District – ED110634



Habitual offender status affirmed 
Statutes enhanced the offense of driving while intoxicated on proof of habitual offender status, meaning a defendant with five previous findings of guilt for intoxication-related traffic offenses. The State showed six, and defendant challenged one, so defendant could show no prejudice. 
STATE OF MISSOURI, Plaintiff-Respondent v. STEVEN W. MARRS, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37685


Employment Security 

Stay-at-home order no good cause to quit 
On a claim for employment security benefits, claimant voluntarily quitting employment is a defense, unless the quitting was for good cause connected with employment. Claimant attended college and worked in Springfield but was visiting home in St. Louis County when a state-wide stay-at-home order issued. Employer was open for business, and claimant visited Springfield a few times, but otherwise stayed in St. Louis during the stay-at-home period. Those facts showed a voluntary quit, and the stay-at-home order was not attributable to employment. The Labor and Industrial Relations Commission did not err in denying claimant’s claim. 
(Overview Summary) 
Shannon Noonan, Appellant, vs. Troyeco, LLC, and Division of Employment Security, Respondents. 
Missouri Court of Appeals, Eastern District - ED111969



Objections too late 
On a motion in limine, a ruling is subject to modification, so preserving error requires an objection to the evidence when the evidence is presented at trial. A statement of “no objection” to evidence waived all appellate review of entering that evidence into the record. In an action for personal injury, on testimony about other similar incidents, an objection made after a description of those incidents was too late to preserve error. Plain error review seldom occurs in civil actions, and appellant did not ask for it, so the Court of Appeals will not conduct it. The testimony about other similar incidents supported punitive damages. 
(Overview Summary) 
Rose Cottonaro vs. Express Medical Transportation, INC. 
Missouri Court of Appeals, Western District – WD86114


Reasonable suspicion supported stop 
The United States Constitution’s Fourth Amendment protects against unreasonable seizures. But a minimally intrusive seizure—a Terry stop—needs no warrant, only a reasonable suspicion of criminal activity based on articulable facts, if those facts come from a reliable origin. The arresting officer heard from another officer, who heard it from the crime victim, who is a reliable informant. So when a law enforcement officer saw appellant driving a vehicle reported stolen, a reasonable suspicion of criminal activity arose. Evidence gathered as a result of stopping appellant was admissible to determine whether, if committed by an adult, appellant’s conduct constituted first degree tampering. 
(Overview Summary) 
In the Interest of M.A.S. 
Missouri Court of Appeals, Eastern District – ED111500


Offer of proof inadequate 
The State’s voir dire did not misstate the law on reasonable doubt as set forth in the approved instruction. Defendant’s offer of proof was incomplete and, in the absence of an offer of proof, the exclusion of evidence is not preserved for appellate review. Appellate review of the exclusion of evidence must stand on the same theory as offered in circuit court, and offering evidence on matters in the charged offense does not preserve an argument on impeachment. 
(Overview Summary) 
State of Missouri, Respondent, v. Michael Bryant, Appellant. 
Missouri Court of Appeals, Eastern District – ED111156


Orders of Protection

Stalking and domestic violence not shown 
Statutes allowed an order of protection for domestic violence by battery, assault, or harassment; the last of which the elements included a course of conduct serving no legitimate purpose and objectively causing substantial emotional distress. Statutes also allowed an order of protection for domestic violence by stalking, of which the elements included an objective and subjective basis for alarm. Petitioner neither alleged nor proved those elements, including “any of the communications from [respondent that] were threatening or even angry.” Petitioner testified that respondent defended against petitioner’s physical aggression and left petitioner’s property on petitioner’s porch without making contact as mutually agreed. Conclusory affirmations in response to leading questions about alarm and fear did not constitute substantial evidence. 
(Overview Summary) 
J.R.C., Petitioner/Respondent, v. S.L.F., Respondent/Appellant. 
Missouri Court of Appeals, Eastern District – ED111715



No prejudice shown 
The elements of a claim for ineffective assistance of counsel include substandard performance resulting in prejudice. On charges of first-degree burglary, second-degree child molestation, and third-degree assault, the defense strategy was that defendant cohabitated with one of the victims. In support, trial counsel obtained records of a bank account that defendant held jointly with victim, but not in any form admissible into evidence. No prejudice resulted, however, because the statements were simply sent to the address matching the account, and the account was created the five months before the burglary. That evidence did not outweigh the victim’s testimony that defendant had no permission to enter. 
GABRIEL N. WOOD, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District – SD37885


Judgment on amended motion not final 
No ruling constituted a final judgment subject to appeal until it disposed of all claims as to all parties. Circuit court’s order ruled that movant’s amended motion was not timely but did not rule on claims in the initial motion. Because the initial motion remained pending, no final judgment was before the Court of Appeals, so the Court of Appeals dismissed the appeal. 
(Overview Summary) 
George Joyner, Appellant, v. State of Missouri, Respondent. 
Missouri Court of Appeals, Eastern District – ED111759


Real Estate

Trustees lost standing to enforce covenants 
Standing to sue over property required a legally protected interest in that property that is threatened with a direct and adverse effect in litigation. Standing for an association depends on the interest at stake and whether the members could or must appear. Plaintiffs owned no lot in the development that was subject to the restrictive covenants that plaintiffs sought to enforce, and the restrictive covenants that plaintiffs sought to enforce did not apply to defendant. Evidence outside the plaintiffs’ own documents does not change that result. 
(Overview Summary) 
Dennis Kallash and Toni Kallash, Respondents, vs. Nicole Bruner-Jones, Appellant. 
Missouri Court of Appeals, Eastern District – ED111400