Case summaries for Jan. 5 - Jan. 11, 2024

Attorneys | Constitutional | Evidence | Family | Insurance | Personal Injury | Post-Conviction | Probate | Workers' Compensation

Attorneys

No license probation for second-degree sexual abuse
Respondent committed sexual abuse in the second degree by initiating hand/genital contact through clothing for arousing or gratifying sexual desire. That conduct violated rules governing client interest over attorney interest, prejudice to the administration of justice, and conflicts of interest. Such violations are cause for disbarment and, notwithstanding that the standards for sanctions include mitigation and disbarment will not result, cause for disbarment renders respondent ineligible for probation. The Supreme Court suspends respondent with no leave to apply for reinstatement for six months.
(Overview Summary)
In re: Joseph V. Neill, Respondent
Supreme Court of Missouri - SC100211

Constitutional

Challenge to TPR statute unpreserved
Challenged statute provides that a plea or finding of guilt in an action charging a sexual offense against a child supports the State’s filing or participation in a petition for termination of parental rights. In a bench trial, no motion for new trial or to amend judgment is necessary to preserve an error that was raised in circuit court. But challenging constitutional overbreadth did not preserve a challenge to due process for lack of adequate logical nexus between parental unfitness and convictions. Challenging whether a statute is constitutional did not preserve whether the statute constitutes ground for termination of parental rights. The sufficiency of the evidence is subject to appellate review even when not preserved. Certified court records supported a finding that appellant pleaded guilty to and was convicted of third-degree child molestation of a child younger than 14 years of age, and sexual misconduct involving a child younger than 16 years of age.
(Overview Summary)
In the Interest of: E.G. v. Juvenile Officer
Supreme Court of Missouri - SC100136

Evidence

Meth lab photos admissible on charge of felon in possession
On a charge of unlawful use of a weapon, by being a felon in possession of firearms, the State offered photographs showing the firearms possessed with “tubing and glass containers” in the background. Evidence of uncharged bad acts is generally inadmissible but no bad act—like running a methamphetamine laboratory—was suggested by the State. Even if it were, the objected photographs were cumulative of other unobjected photographs and therefore harmless. Cumulative evidence is not prejudicial.
STATE OF MISSOURI, Respondent vs. FLOYD E. MARTIN, JR., Appellant
Missouri Court of Appeals, Southern District - SD37765

Video inadmissible to show victim’s demeanor
In recorded interviews, child victim named her attacker. In the latter recording, defendant; in the earlier recording, a third person. The circuit court admitted the latter recording and excluded the earlier recording. Defendant did not raise the statutory foundation for admitting the first recording at trial, did not raise the rule of completeness in a motion for new trial, so preserved neither; and neither sought nor showed grounds for plain error review. Arguments of relevance based on demeanor and credibility preserve one another because “[d]emeanor evidence is directly connected to credibility.” But defendant suffered no prejudice from the recording’s exclusion because defendant was able to relay to the jury “’most’ of Victim’s substantive statements from the first interview” through cross-examination and select clips from the first interview. Such permitted impeachment was sufficient to avoid an abuse of discretion. Conviction affirmed.
STATE OF MISSOURI, Plaintiff-Respondent vs. MICHAEL MOORE, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37229

Family

Visitation enforced by order for family access
Statutes governing custody and visitation require a custodial parent to provide notice of relocation, which no party can prevent, and requires no court approval if unopposed. Any party may seek to revise visitation, but no revision occurs automatically on relocation even if proposed in the notice. Judgment awarded custodial authority to grandmother during visitation without affecting mother’s sole custody. Statutes governing visitation authorize a circuit court to enforce its judgment through specified remedies. Those remedies include contempt. An order of contempt is final when enforced, which ordinarily means a fine or incarceration, but the statutes provide other enforcement mechanisms. Those enforcement mechanisms include compensatory time, a judgment for which is final when the compensatory time occurs. That event started the time for filing a notice of appeal, and appellant’s notice of appeal was timely in accordance with a “special order of the appellate court that permits a late filing of the notice of appeal [,]” as authorized by appellate rule. Nevertheless, all compensatory time has already occurred, so an appeal of that award is moot.
(Overview Summary) 
Samantha Smith vs. Kevin C. Smith and Angela Wilson-Smith
Missouri Court of Appeals, Western District - WD86052

Insurance

Policy limits already exhausted
Insurer issued to insured, road construction contractor, a commercial general liability policy with coverage for products-completed operations hazard. The policy limits were $1 million for each occurrence of bodily injury. That language was unambiguous. Non-settling litigating plaintiffs later procured a $10 million judgment, but an earlier $1 million payment to settling claimants had already exhausted the insurer’s liability, so the insurer had no liability as to plaintiffs’ judgment in an action for equitable garnishment. A supplementary payments provision required the insurer to pay costs and post-judgment interest related to any claim the insurer investigated, even when not defended by the insurer and not paid to plaintiffs, but required pre-judgment interest only as to a judgment that insurer paid.
THOMAS ASH, ANNETTE ASH, ANDREW ASH, and LUCAS ASH, Plaintiffs-Appellants v. GENERAL CASUALTY COMPANY of WISCONSIN, et al., Defendants-Respondents
Missouri Court of Appeals, Southern District - SD37962

Personal Injury

Attorney fees in wrongful death explained
In an action for wrongful death, statutes require the circuit court to apportion damages and then award fees per any contract between a person sharing in the damages and their attorney. Attorney fees are subject to the rules of professional conduct, requiring any attorney to bill any client no more than a reasonable amount, but those rules do not prevail over the statute at any third party’s instance. The statutes require person sharing in the award to contribute to fees for the original plaintiff’s attorney only when such persons had no attorney of their own before judgment. “This language clearly contemplates parties defending their interests through separate counsel before a settlement is approved and apportioned.” Judgment ordering payment of attorney fees per contracts affirmed.
J.A.L. and J.L.L. b/n/f KAYLA MASON and K.L. b/n/f AMANDA LEWIS and DIANE LEWIS-CAMPBELL, Plaintiff-Appellant v. KARL SCOTT LAMBERT and JOSEPH SCOTT LAMBERT, Defendants-Respondents
Missouri Court of Appeals, Southern District - SD37860

Notice of defect in thoroughfare discussed
In an action against certain cities, for damages caused by a defect in “any ... thoroughfare [,]” statute requires plaintiff to give the city notice of certain details about the injury. Thoroughfare means any infrastructure engineered to facilitate passage from one place to another, including a bicycle path, on which plaintiff alleged the injury occurred. The degree of detail in the notice need only be sufficient to “give the municipality a starting point to investigate, not a means to try its case.” But whether plaintiff’s notice was sufficient, the record does not show, because it omits the transcript of the evidentiary hearing on that matter. Finding no circuit court error, the Supreme Court affirms the judgment of dismissal for lack of sufficient notice.
(Overview Summary)
Rachel Sender, Appellant, v. City of St. Louis, Respondent
Supreme Court of Missouri - SC100110

Post-Conviction

Third party interference alleged
On a motion to a motion to vacate, set aside, or correct a judgment or sentence, timely filing is an element that movant must plead and prove, and which the State cannot waive. Movant satisfies that element with a circuit court file stamp, evidence of circuit court misfiling, or an exception to the timely filing requirement. Exceptions to the timely filing requirement include third party interference. The Supreme Court’s forms do not accommodate such pleading, except by an instruction to attach additional pages to the motion, if necessary, which movant did, alleging third party interference. Pro se pleadings are owed a less stringent reading than lawyer-drafted pleadings. The circuit court erred in failing to consider movant’s additional pages, hold an evidentiary hearing on allegations regarding timeliness, and dismissing the motion without issuing written findings of fact and conclusions of law as required by rule.
JORDAN MARTIN, Appellant v. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD37544

IAD waived
The Interstate Agreement on Detainers sets a time limit for disposing of charges pending against an incarcerated defendant in another State. But that defendant waives the time limit “by willingly accepting treatment inconsistent with the [Agreement]’s time limits” including “acquiescing to a trial date initially set beyond the ... time limit” as movant did. Whether that occurred was subject to direct appeal, and movant did not raise that matter on direct appeal, and so waived the matter for post-conviction relief. Appointed counsel did not perform below standard in agreeing to a trial beyond the deadline when appointed counsel was not ready for trial earlier than that. When successor counsel could have been ready is irrelevant. “Requiring express assent from the defendant himself for such routine and often repetitive scheduling determinations would consume time to no apparent purpose.”
(Overview Summary) 
Donald E. Riley vs. State of Missouri
Missouri Court of Appeals, Western District - WD85612

Probate

No attorney fees from estate for beneficiary
In an action to contest a will, “the ultimate object—the real object—is to determine the rights of the parties to the property.” Equity allows an award of attorney fees to a litigant whose litigation protects the estate but not to a litigant whose litigation protects the litigant’s own interest. Therefore, the circuit court lacked authority to award attorney fees, and the Court of Appeals reverses the judgment as to that award.
(Overview Summary) 
In the Estate of: Anna Lois Tyner
Missouri Court of Appeals, Eastern District - ED111494
 

Workers’ Compensation

Weekly wage calculated for volunteer firefighter
Statutes provide that, when no hourly wage is available to calculate a benefit, the Labor and Industrial Relations Commission must use “the usual wage for similar services where such services are rendered [,]” where usual means average, but not less than $40. “The plain language . . . allows a wage to be calculated for an employee who earned very little or even ‘no wage’ by utilizing the ‘usual wage’ paid to others.” Claimant, decedent volunteer firefighter’s surviving spouse, offered evidence of professional firefighters’ hourly wage. That evidence was uncontested, and the Commission made no determination against its credibility, so the Commission erred in failing to consider it.
DEPENDENT [] OF RUSSELL HAYES, Deceased SUSAN HAYES, Appellant vs. CITY OF ELDORADO SPRINGS, Respondent
Missouri Court of Appeals, Southern District - SD37841