Case summaries for Jan. 14 - Jan. 20, 2022

Administrative | Criminal | Insurer | Probate

Administrative

Agency Has Authority Over Ex-Licensee      
The Commissioner of Securities was hearing an action to discipline relator, a former securities dealer registrant, but the circuit court issued a writ of prohibition against that proceeding. Because relator prevailed in circuit court, relator may make arguments in an appellate court, beyond those addressed in appellant’s brief, without filing a cross-appeal. A writ of prohibition may bar “ongoing administrative proceedings ... if the agency wholly lacks [authority] or if irreparable harm would otherwise occur [, in which case relator] need not exhaust their administrative remedies before seeking” prohibition. One statute applies to former registrant’s securities practice within one year after withdrawal of registration. But other statutes apply to anyone practicing certain frauds with no time limit. General statutes of limitations, on actions in circuit court for penalties and forfeitures, do not apply to a contested case. Relator’s settlements with former clients are irrelevant to “the Commissioner’s other remedies [that] are not specifically directed to remedying individual harm.” Circuit court abused its discretion when prohibiting the action before the Commissioner.     
Sean A. Brady vs. John R. Ashcroft and David M. Minnick      
(Overview Summary)     
Missouri Court of Appeals, Western District - WD84470

Criminal

Patrol Car Pat-Down Okay      
The circuit court’s credibility determinations are subject to review for clear error but receive deference in the light most favorable to the circuit court’s ruling, so appellant’s own testimony to the contrary does not support reversal. Appellant consented to a pat-down before discussing an unrelated matter in a patrol car to be away from third persons arguing with appellant. The patrol car was unlocked, appellant was in the front seat, and appellant was under no restraint, so questions about the contents of appellant’s pockets did not constitute a custodial interrogation requiring a Miranda warning. Circuit court did not err in denying appellant’s motion to suppress.       
State of Missouri vs. Kenneth L. Wykert      
(Overview Summary)     
Missouri Court of Appeals, Western District - WD84272

Credibility Determines Motion to Suppress      
“Warrantless searches are ‘per se unreasonable under the Fourth Amendment[,]’ unless an ‘established and well-delineated’ exception applies.” Such exceptions include a search incident to lawful arrest, which extends as far as defendant could reach to destroy evidence or grasp a weapon. The record includes evidence that defendant was not within reach of defendant’s backpack when arrested, which put the backpack beyond the scope of a search incident to a lawful arrest, and the circuit court found that testimony credible. The circuit court was also free to disbelieve the State’s testimony about processing persons arrested, and whether officers would have followed those procedures, at jail. Appellate courts defer to the circuit’s determinations on credibility, so the circuit court did not clearly err in granting the motion to suppress.      
STATE OF MISSOURI, Plaintiff-Appellant v. THOMAS ELVIN BRANSON, Defendant-Respondent     
Missouri Court of Appeals, Southern District - SD37081

Insurer

Insurer Had No Standing to Appeal      
Rule allows certification of judgments for appeal, but even such an appeal must aggrieve the party appellant. Insurer intervened for a determination on defendant insured’s defense of accord and satisfaction and appeals a judgment denying a motion to enforce. Denying the motion to enforce did not aggrieve appellant because “the amount of [d]efendant’s liability remains undetermined by settlement or judgment. As such, the denial of the motion to enforce has no immediate impact on [appellant]’s property rights or interests, and, therefore, [appellant] was not aggrieved by [judgment].”      
NANCY FISHER, Respondent vs. MARCUS FUSCO, Respondent and STATE FARM MUTUAL AUTO INSURANCE CO., Appellant      
Missouri Court of Appeals, Southern District - SD37132

Probate

Challenge to Guardian Unpreserved     
“To preserve an issue for appeal, it must be presented to the [circuit] court.” The circuit court never received any prayer for relief based on appellant’s point relied on, that her temporary guardian had a conflict of interest barring appointment as permanent guardian, so appellate court will not hear that argument. Plain error review denied.     
IN THE MATTER OF: LAUREN PATRICIA O'REILLY, LAWRENCE PATRICK O'REILLY, Respondent vs. LAUREN PATRICIA O'REILLY, Appellant    
Missouri Court of Appeals, Southern District - SD36874