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Case summaries for Jan. 6 - Jan. 12, 2023


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.

Civil | Corporations | Criminal | Insurance |Juvenile | Post-Conviction | Probate | Workers' Compensation


All Plain Error Treated the Same in Civil Actions 
Appellant alleged that the circuit court failed to cite any authority for closing an evidentiary hearing, claimed that those facts constituted a structural error, and sought plain error review. Plain error review applies to an issue not otherwise preserved but is rare in civil cases and, when it occurs, “all errors—whether statutory, constitutional, structural, or based in some other source—are subject to the same treatment [.]” The grounds for plain error review include a manifest injustice or miscarriage of justice, which appellant did not allege and did not show. Plain error review denied and judgment affirmed. 
IN THE INTEREST OF: J.C.S., a minor child under seventeen years of age. GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent v. K.A.G., Respondent-Appellant
Missouri Court of Appeals, Southern District - SD37736


Action Was Derivative and Not Personal   
Dismissal of a petition, not stating otherwise, is presumed to be without prejudice; but a dismissal without prejudice may also terminate litigation when petitioner does not further plead, so a judgment of dismissal without prejudice may be final and subject to appeal. Dismissing plaintiff’s direct action for lack of standing, ruling that plaintiff can only bring a derivative action on corporation’s behalf, constituted a final judgment subject to appeal. That ruling was not erroneous: plaintiff’s allegations of diminished share value described an injury to all shareholders collectively, not to plaintiff alone, so plaintiff must bring the action on the corporation’s behalf.    
Tim Laske, Individually and on Behalf of Others vs. Mark Krueger, Werner Sublette, Ron Phillips and Charles Zeman   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85173  


No Multiple Acts Submitted   
Missouri Constitution preserves “the right to jury trial at common law[,]” which includes “all the substantial incidents and consequences that pertain to” that right, which includes the right to a unanimous verdict. That right is in danger when evidence and instructions allow jurors to render a verdict of guilty based on their respective findings as to multiple incidents. No such danger arose for defendant because, while the evidence included undifferentiated incidents, the instructions submitted a single specific incident differentiated from others by the evidence. Conviction and sentence affirmed.    
State of Missouri vs. Jesus Torres   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD84666


Opportunity to Participate Was Insufficient   
In an action against an insured who has entered into a Mary Carter agreement, the statute then in effect provided that the insurer shall have written notice and 30 days’ opportunity to intervene as a matter of right in the action, before the circuit court enters judgment. But circuit court issued judgment before granting insurer’s motion for intervention. Judgment vacated and remanded.    
M.O., Respondent, vs. GEICO General Insurance Company and Government Employees Insurance Company, Appellants.   
(Overview Summary)   
Supreme Court of Missouri - SC99732   


Juvenile Officer Qualified as an Expert for Certification   
Statute governing expert evidence at a juvenile adjudication hearing applies only to adjudication hearings, which does not include a hearing on certification of a juvenile for trial under criminal statutes, because the juvenile certification hearing does not determine whether the juvenile is guilty of anything. The juvenile certification procedure is constitutional. Therefore, the circuit court did not err in admitting the opinion of a juvenile officer at a juvenile certification hearing without regard to the statute governing expert evidence. Even if error occurred, no prejudice resulted, because other evidence received without objection supported the circuit court’s judgment of certification.    
In the Interest of: E.T.S. Juvenile Officer, vs. E.T.S.   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85088 


Extension Ordered Too Late   
An order granting an extension of time to file an amended motion is due when the amended motion is due. The circuit court’s order issued late, so that order was ineffective, and the amended motion was untimely filed. Untimely filing bars a ruling on the merits of the amended motion and requires an inquiry into abandonment. Judgment on the motion reversed and remanded for an inquiry into abandonment.     
Kyle Herrington, Movant/Appellant, vs. State of Missouri, Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110395 


No Interlocutory Appeal from Denial of Summary Judgment   
Probate code allows an appeal from any ruling that fully adjudicates and disposes of a specified petition, immediately rather than ten days later, even without denomination as a judgment. A notice of appeal divests the circuit court of authority over that matter. On a petition under the safe harbor provision to determine whether a no-contest clause applies, circuit court denied petitioner’s motion for summary judgment, but that ruling does not determine the petition. Whether the no-contest clause applies “remains pending and undetermined.” Therefore, the ruling is not subject to appellate review and the Court of Appeals dismisses the appeal.    
LOUIE R. KEEN, Appellant vs. AMBER WOLFE, individually and in her capacity as Trustee of the April 4, 2011 Restatement of Revocable Trust Agreement of Rosetta Keen, and CYNTHIA KEEN, Respondents   
Missouri Court of Appeals, Southern District - SD37345

Workers’ Compensation

USPS Determination on Postage Controls   
Statutes allow review of an administrative law judge’s decision before the Labor and Industrial Relations Commission upon an application filed timely, defined by timely receipt or timely postmark, neither of which claimant had. Workers’ compensation statutes are subject to strict construction, and strict construction allows no exception that is not expressed. A United States Postal Service sticker, stating that the Commission refused delivery for postage due, outweighs claimant’s evidence that postage was sufficient. Without timely filing, the Commission has no authority to review the application.    
Maryann Gray, Respondent/Cross-Appellant, vs. Hawthorn Children's Psychiatric Hospital/State of Missouri, Appellant/Cross-Respondent, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Additional Party/Cross-Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110400

New Standard Did Not Render Evidence Newly Relevant   
Statute governing Second Injury Fund Liability required claimant to show a previous condition that was medically documented, which did not include claimant’s own analysis, so a record of what claimant said about claimant’s condition was inadmissible even if found in a physician’s record. Claimant also had to show that the previous condition exacerbated the primary condition and claimant did not make that showing. An appellate court’s remand for the Labor and Industrial Relations Commission “to make additional factual findings” did not authorize the Commission to take additional evidence. A regulation of the Commission allowed additional evidence if reasonable diligence could not have uncovered such evidence earlier, and the elements of the claim were unsettled before remand, but that did not bar claimant from presenting evidence under alternative theories before remand.    
Thomas Dubuc, Appellant, vs. Treasurer of the State of Missouri Custodian of the Second Injury Fund, Respondent.   
(Overview Summary)   
Supreme Court of Missouri - SC99605   

Commission Determines Credibility and Weight    
Appellate courts defer to the Labor and Industrial Relations Commission’s determinations on the credibility and on the weight of the evidence. In an action against the Second Injury Fund, statute required claimant to show a previous injury that exacerbated the primary injury. The Commission did not err in determining that uncontradicted and unimpeached testimony was “vaguely worded” and “fall[s] short of establishing” an element of appellant’s claim.    
James Swafford, Appellant, vs. Treasurer of Missouri as Custodian of Second Injury Fund, Respondent.   
(Overview Summary)   
Supreme Court of Missouri - SC99563     

ALJ Need Not Re-Open Record   
A regulation of the Labor and Industrial Commission allowed an administrative law judge to re‑open the record for good cause, but good cause did not include an unsettled state of the law as to the elements of a claim against the Second Injury Fund during the evidentiary hearing on the claim, because the unsettled state of the law did not bar claimant from presenting the evidence under alternative theories.    
Gary M. Weibrecht, Appellant, vs. Treasurer of Missouri as Custodian of Second Injury Fund, Respondent.   
(Overview Summary)   
Supreme Court of Missouri - SC99493