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Case summaries for Jan. 8 - 14, 2021


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.

Attorneys | Civil | Criminal | Employment | FamilyJuvenile | Local Government | Personal Injury | Post-Conviction | Real Estate | Workers' Compensation


Mitigation Not Raised or Proved
For misappropriation of client funds, the presumed discipline is disbarment, subject to mitigating factors. Mitigating factors include mental disorder, but respondent offered no medical support for that defense. Respondent’s conduct was “severe [,]” and “egregious [,]” persistent, and remorseless. Supreme Court disbars respondent.  
In re: Eric F. Kayira, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98531


Punitive Damage Award Remanded
Testimony of plaintiff’s witness, regarding witness’s experience with plaintiff’s business and her methods of calculation, supported entry of witness’s testimony and exhibit on plaintiff’s lost profits into evidence. Plaintiff’s evidence, that defendant conspired with plaintiff’s sales manager to poach plaintiff’s clients, was “the definition of evil motive and reckless indifference” and made a submissible case for punitive damages in an action for conspiracy to breach a duty of loyalty and tortious interference with a business. Those actions are not subject to a statutory cap on punitive damages because they existed in 1820, and so are under the constitutional protection for the right to trial by jury, regardless of when Missouri case law first recognized them. Remanded to determine remittitur under due process provisions and statute providing remittitur.
All Star Awards & Ad Specialties Inc. vs. Halo Branded Solutions, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83327 and WD83352


No Need for Sua Sponte Strike of Venirepersons
No plain error occurred when circuit court did not sua sponte strike venire persons. “[A] trial court is under no duty to strike a juror on its own motion.” Defendant showed no prejudice in failure to strike venire persons, given conviction on a lesser included offense despite the gruesome evidence. Remanded to correct the circuit court’s record as to the statute under which circuit court convicted appellant.
State of Missouri vs. Christopher Eugene Pike
(Overview Summary)
Missouri Court of Appeals, Western District - WD83180


Right-to-Sue Letter Mandated
Statutes bar any person, not just the complainant’s employer, from aiding and abetting in retaliation for exercising employment-related statutory rights. Missouri Human Rights Commission’s determination, that a complaint stated no basis to investigate, constituted a non-contested case for which the statutes allow review by petition for writ of mandamus. Investigation of a complaint is the Commission’s duty “already defined by law [,]” whether the result is prosecution or a right-to-sue letter, so it is subject to writ of mandamus.  In mandamus, unlike rules governing pleading in circuit court generally, specific rule governing does not extend time to file an answer pending a motion to dismiss. Judgment granting writ of mandamus affirmed but, since the time for investigation has expired, Court of Appeals orders the issuance of a right-to-sue letter.
State of Missouri Ex Rel. Jim Swoboda vs. Missouri Commission on Human Rights, Alisa Warren, and Armstrong Teasdale, LLP
(Overview Summary)
Missouri Court of Appeals, Western District - WD83556 and WD83571


No Evidence of Abuse Needed for Finding of Unfitness
Statutes allow termination of parental rights, which means facts that make the parent “unable for the reasonably foreseeable future to care [for] the child[,]” and do not necessarily include physical abuse. Evidence that parent had been absent for child’s life for 12 years and would be absent for at least three more due to imprisonment in California for manslaughter, showed unfitness. That one basis for termination of parental rights supported the judgment so the judgment was not against the weight of the evidence. 
IN THE INTEREST OF K.L.M., a Minor Child A.N.C., and M.A.C., Petitioners-Respondents v. S.L.M., Natural Father, Respondent-Appellant and MISSOURI DEPARTMENT of SOCIAL SERVICES, CHILDREN'S DIVISION, and MCDONALD COUNTY JUVENILE OFFICE, Respondents
Missouri Court of Appeals, Southern District - SD36740


Prosecution as an Adult Affirmed
Statutes providing no standard for circuit court’s discretion to certify a juvenile as an adult require the exercise of discretion to stand on consideration of an investigation and report, so they are not unconstitutionally vague. Appellant did not show prejudice from appearing unshackled in the absence of a jury. Certification for trial as an adult affirmed.
In the Interest of: D.B.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83662

Local Government

Local Health and Safety Ordinance Upheld
Fencing and parking ordinances are health and safety laws, not zoning laws, and do not prohibit operation of a pre-existing business. City council’s “combination of the investigative and adjudicatory functions”—the issuance of, and hearing on a citation—does not offend due process when statutes provide judicial review. To plead a claim on which a circuit court may grant relief, a petition needs more than conclusory statements; it must allege at least ultimate facts. In a declaratory judgment seeking relief from a local ordinance for “defects in the ordinance’s enactment [,]” greater specificity than “the statutory provisions relating to the passage of city ordinances were not followed” was necessary to state a claim. Therefore, that point is unpreserved for appeal. On City’s motion for summary judgment on parking ordinance, no authenticated copy of the ordinance, nor admission, nor stipulation, was before the circuit court, so circuit court erred in granting the motion and Court of Appeals reverses.
Rickie L. Stanton vs. City of Skidmore, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83441

Personal Injury

Defense of Exclusive Remedy Waived
Circuit court granted respondents’ motions for summary judgment, and did not rule on appellant’s motion for summary judgment, but appellant’s arguments are nevertheless subject to review, because appellant’s motion is so intertwined with respondents’ motions that granting one effectively denied the other. A judgment is subject to collateral attack for lack of jurisdiction at any time, but an affirmative defense under the statutes must be waived or is raised, like the exclusive remedy and bar to actions in circuit court under workers’ compensation. On a motion for summary judgment, movant’s reply established a material fact that the non-moving party failed to genuinely dispute by sur-reply, leaving “an admission of the truth of that numbered paragraph.” Points relied on that identifies the ruling challenged, but not the findings of fact challenged, preserve nothing for review.
Sheyann Geiler, et al vs. Liberty Insurance Corporation, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83363


No Duty to Seek Psychological Exam
Movant did not show that expert’s psychological examination was inadequate, and did not show that a more thorough examination would have changed the result at trial, so movant showed neither deficient performance nor prejudice from trial counsel’s representation.  
Sebastian Dowell vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83511

Real Estate

Ordinance Unauthorized
Statute authorizes cities to make ordinances charging the expense of suppressing a nuisance on property against the  property, its occupant or its owner. Respondent’s ordinance purported to hold liable the “person in control of such property [.]” The city made no finding that appellant was the property’s occupant or its owner, so the city had no authority to order appellant to remedy a nuisance on the property.
The Fred Kemp Company LLC, Respondent, vs. Kitrell Braselman, in his official capacity as the Director of Public Works, City of Black Jack, Department of Public Works, City of Black Jack, and City of Black Jack, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108418

Workers' Compensation

Medical Fee Dispute Too Late
Statutory amendment gives one year to dispute a medical fee. That amendment took effect on January 1, 2014, so it was not retroactive in application to medical services rendered in December 2015. One year is not unconstitutionally unreasonable especially when a claim includes “a form supplied by the Commission and copies of documentation that should already exist.”  Statutes direct the Labor and Industrial Relations Commission to make procedural regulation for resolving medical fee disputes. Commission’s regulation provides sufficient notice by requiring a writing specifying the fee at issue and the basis for disputing it. Commission’s regulation bases awards on undisputed facts, which respondent established by affidavit on firsthand knowledge. Such an affidavit established the identity of a third-party administrator and unsupported denial was mere speculation. An affidavit stating that one document accompanied another by mail established receipt of one document with the other, and an unsworn denial raises no genuine dispute as to that fact. Whether that regulation would have violated due process if appellant had offered its own facts is merely hypothetical, and the Missouri courts do not issue advisory opinions.
Chesterfield Spine Center, LLC, d/b/a St. Louis Spine & Orthopedic Surgery Center vs. Best Buy Company, Inc., and XL Insurance America, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83757