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Case summaries for Jan. 22 - 28, 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.

AppellateCivil | Commercial | Contract | Criminal | DWI | Employment Security | Insurance | Mental Health | Post-Conviction


Law of the Case Applied
When an appellate court issues its mandate remanding an earlier judgment for re-sentencing, a later judgment on re-sentencing is subject to appeal, but only to challenge whether the re-sentencing conforms to the mandate. Any other matter that was, or could have been, challenged on appeal of the earlier judgment is barred under the law of the case. Appellant appeals from the later judgment, but offers challenges only to the earlier judgment, so the Court of Appeals affirms the second judgment. 
STATE OF MISSOURI, Plaintiff-Respondent v. GARY D. MORTON, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36439


Failure to State a Claim Explained
A motion to dismiss for failure to state a claim tests the petition’s adequacy only, and cannot rely on any other allegations or inferences, nor “the kinds of credibility and persuasiveness determinations that are strictly prohibited.” Petition alleged facts constituting broker’s failure to represent insured and insurer’s failure to defend, and need not prove its allegations to survive the motion to dismiss for failure to state a claim. Insurer’s conclusory allegation of good cause for refusal to pay is irrelevant to whether the petition alleged facts constituting vexatious refusal to pay. An affirmative defense supports a failure to state a claim only where the petition alleges facts that establish the affirmative defense; the petition did not allege facts constituting an exclusion to coverage or showing untimely filing of the petition, so circuit court erred in dismissing the petition on those grounds. Rules permit pleading in the alternative, even for inconsistent claims, so pleading breach of contract and unjust enrichment in the alternative was not grounds for dismissal.  
Christine Murray-Kaplan, Appellant, vs. NEC Insurance Inc., Great Northern Insurance Company, and Joseph Bosse, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108662


Rights in Note Did Not Include Proceeds from Note
A promissory note was unassignable without consent, and consent never occurred. A secured interest in proceeds of the note was possible by agreement if the agreement states the proceeds as collateral. The collateral described was all rights in the note, but rights in a note do not include the proceeds received for the note. Statutes allowing an interlocutory appeal from a ruling do not bar an appeal from that ruling on final judgment.
In the Estate of Jose Luis Lindner, Deceased; Dale Doerhoff, Successor Personal Representative vs. Matthew Concannon
(Overview Summary)
Missouri Court of Appeals, Western District - WD83652


Price Fixed, No Separate Charges
Regulation governing State contractors’ charges to industry is subject to exception provided by contract. Contracts resulting from State bidding process are subject to the same rules of construction as other contracts and contract provisions exist in conjunction with, not in isolation from, each other. Contracts for tracking medical marijuana seed-to-sale had to include “any one-time required firm, fixed costs necessary to meet the RFP requirements [,]" which included tags for use by the State and others, which included industry use. And the contract forbad any other payment to appellant. Therefore, a separate provision stating that the industry would pay for tags did not entitle appellant to collect a separate charge for its tags.
Metrc, LLC vs. Sarah Steelman, Et Al., and Bio-Tech Medical Software, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83565


Timing of Charges Okay
Double jeopardy is the criminal procedure version of collateral estoppel; it does not preclude charges related to one victim after acquittal on charges related to another victim, especially offenses committed in different manners. Allegations of prosecutorial vindictiveness, not raised until a motion for new trial, are waived even for plain error review. Even if appellant showed prosecutorial misconduct, later rulings in appellant’s favor—and appellant’s failure to act on those rulings—mooted appellant’s allegations. Appellant showed no opposition to, and thus no preservation of, a protective error in barring additional depositions of victims; there were no grounds for plain error relief from that order, because appellant did not show how manifest injustice resulted without such additional depositions.
State of Missouri vs. Michael L. Oglesby
(Overview Summary)
Missouri Court of Appeals, Western District - WD82619 and WD82620


Zip Code Does Not Determine Supplier
For compressed ethanol-gas mixtures in calibrating alcohol testing devices, Department of Health’s regulation identified approved suppliers by location, including zip code. Zip code is not part of the supplier’s identity so, when supplier moves, Department of Health need not amend its regulation. Circuit court erred in excluding evidence from a testing device solely because the supplier listed in the regulation had a zip code differing from the zip code listed for it in the regulation.
Megan Lizabeth Schwandner, Respondent, vs. Director of Revenue, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108288

Time Between Driving and Testing Was Insignificant
Appellant was driving and later tested over the limit for alcohol. Appellant did not show that the time between driving and testing—a convenience store restroom break—was enough to disregard the inference that appellant was already intoxicated while driving.
STATE OF MISSOURI, Plaintiff-Respondent vs. DONALD WAYNE MCMANNIS, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36303

Employment Security

Notice of Appeal Too Late
In an employment security case, a timely appeal to the Labor and Industrial Relations Commission is necessary for the Court of Appeals’ jurisdiction. Appellant mailed an appeal to the Commission before the filing deadline, but received it undelivered after the deadline. Whatever the reason, the appeal was untimely at the Commission, so the Court of Appeals cannot hear the case and dismisses the appeal.
Lex Group, Inc. vs. Carol Clift and Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD83867


Related Negligent Acts Constituted One Claim
Insurer’s failure to reserve defenses may estop denial of coverage, but defenses do not include limitations of liability, so limitations of liability are not estopped or waived. Limitations of liability provision in professional liability insurance policy unambiguously treated multiple “demands arising out of ... a series of related acts or omissions” as “a single Claim [,]” and all negligent acts of law firm in the course of representing all clients seeking damages from one auto wreck were “related,” so the policy limits applied to all claims arising out of that representation. That position did not support insured’s failure to co-operate, so insured had no right to settle for policy limits without insurer’s consent. Court of Appeals vacates judgment for clients and enters judgment for insured.
Jessica Stacy and Brian Stacy, Respondents, vs. The Bar Plan Mutual Insurance Company, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108576

Mental Health

Conditional Release Affirmed
In an action for release from a mental health facility, after being “found not guilty by reason of insanity” of a criminal offense, the elements include clear and convincing evidence that the applicant is not dangerous, on which an appellate court defers to the circuit court’s credibility determinations. “Dangerous behavior is a broader category than merely violent or aggressive behavior [,]” but the behaviors are related, so expert evidence in the context of violence “more than fills the gaps between “violence” and “danger.” Those findings, independent of and not merely on entry of, expert testimony were relevant to statutory factors determining release. Judgment of conditional release affirmed.
State of Missouri, Department of Mental Health vs. Robert J. Rousseau, Jr.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83607


Plea Hearing Record Refutes Claims
Movant’s failure to pay trial counsel all the fees due did not create an actual conflict of interest in trial counsel. Movant’s allegations that trial counsel failed to prepare for trial do not describe coercion without pleading, in particular, the preparation lacking and what difference it would have made. Describing sentences allowed by law is not coercion. Movant claimed that trial counsel was ineffective for failing to advise movant of a lesser-included offense; but at movant’s plea hearing, movant agreed that trial counsel had “fully advised [movant] of ‘all legal aspects of [his] case [.]’” Even non-lawyers know that legal aspects of their case include lesser-included offenses, so the record refutes movant’s allegation, and no evidentiary hearing was necessary on that claim.  
Rojai R. Jackson, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108640

No Sua Sponte Mental Exam Needed
The circuit court observed movant to be mentally competent, and a challenge to the absence of a mental examination ordered sua sponte would not likely have been successful, so movant did not show that appellate counsel was ineffective.
DAVID COLE NASH, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36501

More Evidence Necessary 
Movant alleged that trial counsel was ineffective for reserving an opening statement and making no objection to the State’s closing argument. The transcript alone did not establish whether trial counsel’s conduct had any underlying strategy, which is “[t]he important part of the finding of ineffective assistance of counsel [,]” because determinations of competence and prejudice depended on credibility. Therefore, movant was entitled to offer evidence in support of movant’s allegations. In denying the motion without an evidentiary hearing, the circuit court abused its discretion, so the Court of Appeals reverses and remands for an evidentiary hearing. 
RONALD MCLEMORE, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36568