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Case summaries for Jan. 15 - 21, 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.

Appellate | Contract | CriminalDWI | Employment Security | FamilyPost-Conviction | Probate


Transcript Necessary
On appeal of a criminal conviction, an “incomplete or otherwise defective [record] alone does not entitle an appellant to reversal as a matter of right” and reversal depends on whether appellant shows due diligence in correcting the record and prejudice from the incomplete record. The absence of a transcript prevents meaningful appellate review. Remanded for new trial to make a transcript.
State of Missouri, Respondent, v. Terry M. Slayton, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107188


Affirmative Defense of Judgment on the Pleading Raised a Genuine Dispute
Judgment on the pleadings is due when, and only when, the pleadings show that judgment is due as a matter of law. Parties’ contract named a third party instead of employer. On a defense of mutual mistake, parol evidence is admissible because it does not alter the contract, it shows what the contract really was. Plaintiff’s affirmative defense of mutual mistake raised a genuine dispute of material fact, so circuit court erred in entering judgment on the pleadings.
Ann McGruder vs. Curators of the University of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83719


Failure to Appear Is Not a Continuing Offense
The State charged defendant with attempted burglary in the first degree, alleging that defendant intended to commit a crime in victim’s home; specifically, failure to appear. But defendant completed his failure to appear when he did not show for his court date, so defendant could not have intended to commit a crime when trying to enter victim’s home. Therefore the circuit court did not err when it granted defendant’s motion for judgment notwithstanding the jury’s guilty verdict as charged, and entered judgments of acquittal as charged, but guilty on the lesser included offense of attempted first degree trespass. “When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to reinstate the jury verdict of guilty.”
STATE OF MISSOURI, Plaintiff-Appellant vs. XAVIER M. RAY, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD36620


Reasonable Suspicion Was a Matter of Law
The inquiry on appeal is solely legal, and no deference is due the circuit court, when evidence is uncontested. To contest evidence, a party need not contradict that evidence, it can cross-examine or argue against the evidence’s credibility. Driver’s cross-examination of arresting officer challenged whether undisputed facts constituted reasonable suspicion that driver violated a law and supported a traffic stop. “[E]ven a minor traffic violation gives an officer probable cause to stop a vehicle.” Circuit court erred in suppressing evidence resulting from traffic stop that was based on a renewal sticker applied to expired license plates.
State of Missouri, Appellant, vs. Scott Allen Utech, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108605

Employment Security

Must Determine Employment Status First
Statutes provide benefits for employees, and not for independent contractors, so when appellant alleged that he was an employee, the Department of Labor and Industrial Relations must determine that threshold issue before determining whether an exception to eligibility applied. Respondent had the burden of proof. “[T]he first step in determining whether a claimant is covered by the Missouri employment security statutes is to determine whether his relationship constitutes one of [‘]employment [’; and s]imply characterizing a party an independent contractor or employee does not make it so [.]” Uncontested evidence shows that claimant was an independent contractor and not an employee, so Court of Appeals denies benefits.
Leon Bone, Respondent, v. Maczuk Farms Trucking, LLC, Appellant, and Division of Employment Security, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108470


Video Appearance for TPR Sufficient During Pandemic
“There is no constitutional right to appear in person at a civil trial. ... There is also no statutory right.” In an action to terminate appellant’s parental rights, appellant appeared for an evidentiary hearing from jail by video connection, because Supreme Court directives barred an appearance in person during the coronavirus pandemic. Failure to raise problems with the connection, and seek corrections to the transcript, waived any error on that basis. A writ of habeas corpus ad testificandum is discretionary. Appellant’s physical absence from courtroom did not render appellant’s trial counsel ineffective. Circuit court did not abuse its discretion when overruling a motion for continuance.  
IN THE INTEREST OF: C.I.G., C.M.D.G., and M.I.G., Minor children under seventeen years of age GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent v. M.D.G., Respondent-Appellant
Missouri Court of Appeals, Southern District - SD36771, SD36772 and SD36773


Judgment Corrected Nunc Pro Tunc
Trial counsel’s “accurate description of the serious consequences and stark choice [movant] faced” did not constitute coercion. The certainty of a lesser sentence over the risks of a greater sentence weighs against a finding of coercion.  Remanded to correct the class of felony on which circuit court convicted movant.
Nichole Marie Jagels, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108783

Timeliness Is the First Inquiry
Rules provide that courts cannot rule on post-conviction relief absent timely filing of the initial motion, and include a mailbox extension for timely mailed motions, if correctly addressed. Appellant’s earlier mailing was not correctly addressed. Appellant’s later mailing arrived at circuit clerk’s office without a postmark, and the circuit court made no findings of fact as to the timeliness of its finding, so the Court of Appeals remands for those findings.
JAMAAL J. WALLS, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36544 and SD36545


Unitrust Conversion Discussed
A “unitrust interest” in a trust is an interest “that receives ‘a percent of the entire trust … rather than just the income.’” Statutes allow conversion of an income-only interest to a unitrust interest and presume that conversion is impartial. Respondent’s business records affidavit stood on personal knowledge, so it prevailed over a hearsay objection. Statutes governing administration of trusts allow an award of attorney fees, and circuit court did not abuse its discretion in making that award against a party who protracted litigation. On review, the Court of Appeals can determine the amount of an attorney fee award but remands to circuit court for that determination.
U.S. Bank, N.A., as Trustee of the Living Trust Agreement of Lorenz K. Ayers, dated May 3, 1967, as Amended and Restated, Respondent, vs. Elizabeth Molk, Appellant, and Anne Herbst, Catherine Herbst, Donald A. Herbst, Miles Herbst, David C. Molk, Rebecca B. Molk and Peter F. Molk, Defendants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108598