Case summaries for Jan. 12 - Jan. 18, 2024

Appellate | Civil | Contract | DWI | Employment | Evidence | Real Estate

Appellate

Evidentiary rulings unpreserved or abandoned
To preserve instructional error requires an objection on the record with specificity, and “[a] simple objection on the basis that the instruction fails to state the applicable law or fails to contain all of the necessary elements of a cause of action, standing alone, is considered a general objection, preserving nothing for appellate review.” The record shows only a general reference to an objection made off the record and appeal is too late to add specificity and detail absent from the record. An offer of proof preserves error as to the exclusion of evidence, so the proponent must offer the evidence into the record before making an offer of proof; otherwise the offer of proof preserves nothing. An error charged but unsupported by authority and argument applying such authority to the facts is abandoned.
DANIELLE (ROLLINS) EADS, Appellant vs. TAYLOR AUTOMOTIVE GROUP, LLC, D/B/A TAYLOR CHRYSLER DODGE JEEP RAM and TIMOTHY J. TAYLOR, Respondents
Missouri Court of Appeals, Southern District - SD37808

Civil

Summary judgment reversed
Statute gives priority to the holder of a decedent’s durable health care power of attorney that specifically designates the right of sepulcher over a decedent’s next-of-kin. In a declaratory judgment action among decedent’s relatives to determine the right of sepulcher and possession of decedent’s personal property, petitioners filed a motion for summary judgment. But petitioners failed to address defendant’s Arizona durable health care power of attorney with right of sepulcher, cite authority showing that their allegations about defendant’s durable health care power of attorney were material, and reference evidence supporting petitioners’ allegations. On those filings, the circuit court erred in entering judgment for petitioners, so the Court of Appeals reverses for further proceedings. As to decedent’s personal property, decedent’s personal representative filed a motion to intervene, but a personal representative can already take possession of that property by statute, and judgment giving the personal property to the personal representative mooted that controversy anyway.
(Overview Summary) 
C.A.B., JR., S.C.B., AND S.M.S. BY AND THROUGH THEIR NEXT FRIEND G.W.B., Respondents, vs. KENDRA PERPICH, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KAITLIN N. BOSTER, Appellant
Missouri Court of Appeals, Eastern District - ED111188

Contract

Challenge to purchasing award rebuffed
A request for proposals from the Office of Administration “is subject to the rules of contract construction because, although the [request for proposal] was not itself a contract, it was an offer to vendors to submit proposals that was accepted when a bid proposal was made.” “In conducting judicial review of a non-contested administrative case, a court is limited to determining if the agency’s decision was “unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involves an abuse of discretion [,]” and is “prohibited from substituting its discretion for discretion legally vested in the administrative body [,]” so the circuit court could not “set aside the contract award simply because it disagrees with the evaluators’ subjective scoring decisions (a matter on which [the circuit court] expresse[d] no opinion).” The request for proposals stated that the Office of Administration evaluated bidders in part by “reference,” a term used ambiguously to mean either a review of documentation or a client with the bidder’s clients, at the discretion of the Office of Administration. The language of the request for proposal and supporting testimony show that the Office of Administration had applied its standards correctly. The record also shows that a typographical error in the purchasing report had no impact on the purchasing decision.
(Overview Summary) 
Modivcare Solutions, LLC., vs. Office of Administration, Et Al. and Medical Transportation Management, INC.
Missouri Court of Appeals, Western District - WD86090

DWI

De novo review explained
Statutory, but not constitutional, provisions allow a driver the opportunity to consult counsel before taking a breath test. Statute requires the arresting officer to include all relevant information in a report for administrative review and decision in the Department of Revenue on whether to suspend a driver’s license for driving while intoxicated. That decision is subject to a civil action in circuit court for trial de novo, not a review of the record made in the Department’s hearing, so the arresting officer’s testimony can supersede the report in circuit court. On trial de novo, the issues include whether the driver was arrested upon probable cause to believe that driver had committed an alcohol-related traffic offense, to which the geographical limits of a law enforcement officer’s authority are irrelevant. A statute provides the foundation for admitting into evidence the records “lawfully deposited or filed” with the Department of Revenue, but that does not include the evidence offered at an administrative hearing within the Department of Revenue.
(Overview Summary) 
Delaney Shay Craig vs. Director of Revenue
Missouri Court of Appeals, Western District - WD85515

Employment

No damages, no claim
Plaintiff employee’s claim for breach of the covenant of good faith and fair dealing constituted an action for breach of contract. Defendant employer filed a motion for summary judgment establishing beyond genuine dispute that defendant employer had paid everything due under the parties’ one-year contract, which negated the element of damages in plaintiff employee’s claim. Plaintiff employee’s argument on the motion relied on defendant employer’s amended policy, cited in neither plaintiff employee’s petition nor the summary judgment record, and so not before the Court of Appeals. Consequential damages are unavailable for breach of an employment contract, and the petition’s allegations allege no facts to support an award of consequential damages. The circuit court gave plaintiff employee all the time requested for discovery before making its ruling, so the timing of its ruling was not error.
(Overview Summary) 
Luke W. Amoroso, Ph.D. vs. Truman State University
Missouri Court of Appeals, Western District - WD86136

Evidence

Declaration did not constitute hearsay
The rule against hearsay bars evidence of a declaration made outside of court and offered for the truth of the matter declared. At defendant’s trial for child neglect and second degree murder of an adopted child by starvation, one witness testified that the witness’s investigation revealed no evidence of any eating disorder. That declaration was not hearsay because the declarant was in court. Another witness testified that defendant had previously surrendered a foster care license for using food deprivation as discipline. That declaration was not hearsay, and did not violate the Confrontation Clause, because the declarant testified from personal knowledge. Defendant did not show any prejudice from evidence of food deprivation as discipline given the extensive and overwhelming evidence of defendant’s guilt.
STATE OF MISSOURI, Respondent vs. RANDALL LEE ABNEY, Appellant
Missouri Court of Appeals, Southern District - SD37812

Real Estate

Fraud nets damages or constructive trust but not both
Plaintiff and defendant were sisters, and their mother loaned them the down payment for plaintiff to buy a house with defendant’s co-signature, but defendant bought the house in her own name alone. Defendant then promised to transfer title to plaintiff after plaintiff made payments. Plaintiff sued for fraudulent misrepresentation. Circuit court denied defendant’s motion for judgment on the pleadings, and appellant did not object to the verdict director on the theory raised in the motion for judgment on the pleadings, so appellant did not preserve the matter for appeal. Plaintiff made a prima facie case for fraudulent misrepresentation with evidence that plaintiff reasonably relied on a promise that defendant never intended to keep. An award of damages to plaintiff bars a constructive trust for plaintiff’s benefit under the election of remedies doctrine.
(Overview Summary) 
Helen Sanders, Respondent, vs. Colleen Gould, Appellant.
Missouri Court of Appeals, Eastern District - ED110814