Case summaries for Jan. 21 - Jan. 27, 2022

Administrative | Appellate | Criminal | Employment | Family | Juvenile | Personal Injury | Workers' Compensation

Administrative

Default in Sunshine Law Action Affirmed  
Defendant did ask the circuit court for more time to file a motion to dismiss the petition, so an appellate court will not review whether circuit court should have granted more time. On a motion to file an answer out of time, defendant did not provide notice to plaintiff and show excusable neglect, so circuit court did not abuse its discretion in denying that motion. Having failed “to timely file a responsive pleading[,]” defendant was not entitled to notice of the default proceedings. Nothing prevented circuit court from applying plaintiff’s arguments, to reconsider a motion for default on the initial petition, to the amended petition. Failure to file a timely responsive pleading to the petition supports an interlocutory default order, and final judgment, of default. The record contains evidence supporting the circuit court’s finding on good cause to set aside the default judgment: that “the failure . . . to file a timely responsive pleading to the amended petition was not an act of negligence but instead was a deliberate, conscious, and reckless choice to risk the possibility of a default judgment.” Judgment affirmed and remanded to determine litigation expenses due for enforcement of judgment granting relief under the Open Records Act. 
John Solomon, Respondent, vs. St. Louis Circuit Attorney, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109396

No Claim in Release of Closed Records 
Open Records statutes provide that violation of specified provisions constitute criminal offenses, but not private claims, including negligence per se because they do not constitute public safety standards. Claims for invasion of privacy include intrusion on seclusion, and publicity of private life, each of which include the elements of unreasonable means. Unreasonable means do not include a felony investigation by which, plaintiff alleged, defendant acquired the records. On a claim for prima facie tort, the elements include an intentional and unjustified, but lawful, act by defendant; while plaintiff alleged that the disclosure of closed records was unlawful and alleged an unjustified act only in conclusory terms. Plaintiff’s petition failed to state a claim on which courts grant relief, so the circuit court did not err in dismissing the petition. 
DENNIS R. RYNO, Appellant vs. KEVIN S. HILLMAN, Respondent 
Missouri Court of Appeals, Southern District - SD36889

Appellate

Point Unpreserved by “Sandbagging” 
Appellant failed to subpoena a witness, argued an adverse inference from respondent’s failure to call that witness, and accepted the circuit court’s ruling sustaining respondent’s objection to that argument without argument of appellant’s own. Having made no argument in circuit court as to why an adverse inference was permissible, so as to preserve that point, appellant cannot bring that argument to the Court of Appeals. “A party cannot decline to inform the trial court of an alleged error, wait to see if the jury’s verdict is favorable, then complain about the alleged error in a post-trial motion if the verdict does not go his way [under case law,] describing such a practice as ‘sandbagging’ and stating that such tactics will not preserve the issue for appeal [.]” 
TOMMY MORPHIS, Plaintiff-Appellant v. TRACKER MARINE, LLC, Defendant-Respondent 
Missouri Court of Appeals, Southern District - SD37124

Criminal

U.S. SORNA Irrelevant to Missouri SORA 
Missouri Sex Offender Registration Act requires registration of persons guilty of specified offenses after its effective date, including appellant, and bars the removal of appellant from the registry. Whether United States Sex Offender Registration and Notification Act also required appellant to register is irrelevant. 
Gary Austin vs. Missouri State Highway Patrol, et al. 
(Overview Summary)
Missouri Court of Appeals, Western District - WD84085

Employment

Avoidable Consequences Limits Back Pay 
Statutes providing damages when firing a State worker was not for the good of the service. But “under the rule of avoidable consequences, the amount of back pay must be offset by such sums the employee has earned or could have earned from other employment[.]” The Administrative Hearing Commission calculated that other employment would have started, if appellant had sought it, at a date certain. That date had support in the record and applied to reduce appellant’s damages as to back pay, annual leave, and income tax benefits. As to social security benefits and medical insurance, appellant did not carry the burden of proving damages. No interest applies under any statute, and statutes control the Commission’s authority, so the Commission committed no error in making no award of interest. 
Xinsheng Gan vs. Penny Schrock
(Overview Summary)
Missouri Court of Appeals, Western District - WD84241

Family

Settlement Unambiguously Required 50/50 Split 
In an action for dissolution of marriage, judgment incorporated the parties’ agreement, including an order that respondent “hereby releases and quit-claims to [appellant] all his right, title and interest in and to . . . One-half (1/2) plus an additional $20,000 from [a specified asset] as of the date of Judgment entry.” That language unambiguously required respondent “to transfer all right, all title, and all interest in one half the asset to” appellant on the date specified, but respondent merely calculated the value as of that date and delayed the transfer by four months, thus keeping appreciation—and all other property rights in the asset—for respondent. Appellant’s motion to hold respondent in contempt was really just a motion to enforce the judgment of dissolution, which is a special after-judgment order, made subject to appeal by statute. Remanded for further proceedings to make appellant whole. 
Ginger M. Wilson vs. Gregory S. Wilson 
(Overview Summary)
Missouri Court of Appeals, Western District - WD84191

Juvenile

Amendments Retroactive, Indictments Okay 
Appellant is subject to the statutes in effect when an indictment alleges events to have occurred and, under those statutes, circuit court had authority over appellant. Statutory amendments, decreasing circuit court’s authority by increasing juvenile division’s authority, were not effective until after those events. Circuit court erred in dismissing indictments against appellant for lack of authority, so Court of Appeals reverses that judgment, and remands for further criminal proceedings in circuit court. 
State of Missouri vs. M.M.W. Jr. 
(Overview Summary)
Missouri Court of Appeals, Western District - WD84314 and WD84315

Personal Injury

Rehab Was Medical Care, Two-Year Statute Applies 
Statute sets two-year time limit to file an action for negligence “related to health care” services, which includes physician-ordered 24-hour rehabilitation care, because such care was due to medical conditions. Facility inattention to such care, causing the injury, did not remove the allegations from negligence in health care to ordinary negligence. Plaintiff’s action was too late and circuit court did not err in dismissing that action. 
Nancy Payne, Appellant, vs. Rehabilitation Institute of St. Louis, LLC, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109560

Workers' Compensation

Risk Source Not Work-Related 
Statutes compensate injuries resulting from the risks of employment and not from the risks of normal nonemployment life. “It is not enough that a claimant's injury occur at work or even while engaged in a work-related activity. To show a causal connection between the injury and work, the risk involved must be one to which the worker would not have been equally exposed in his non-employment life.” Appellant twisted a knee when appellant changed direction while walking. The Labor and Industrial Relations Commission did not credit appellant’s evidence that appellant’s working conditions—lighting, steel-toed boots, and cracked surface--worsened appellant’s injury. Denial of compensation affirmed. 
JAMIE E. OVERSTREET, Appellant vs. TAMKO BUILDING PRODUCTS, INC., and ACE AMERICAN INSURANCE COMPANY, Respondents 
Missouri Court of Appeals, Southern District - SD37171