Case summaries for Jan. 24-30, 2025
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.
Administrative | Attorneys | Civil procedure | Criminal | DWI | Evidence | Family | Post-conviction
Administrative
No records in requested format
The statutes constituting the Sunshine Law required agencies to produce certain records on request. “Anyone seeking access to public records must communicate their request in a way that allows a reasonably competent custodian of the records to identify the specific records requested, and a governmental body must be able to rely on the request as it was actually made.” The plaintiff requester sought documents that were in Excel format. The circuit court found that the agency kept documents only in a text format, so the circuit court denied relief, and that ruling was not against the weight of the evidence.
(Overview summary)
Phillip Weeks, Appellant, vs. City of St. Louis, Respondent.
Missouri Court of Appeals-Eastern District – ED112624
Sunshine law compliance negated retaliation
A discovery ruling occurred after the circuit court’s evidentiary hearing, so a transcript of that hearing was necessary for appellate review, and the failure to file such transcript raised a presumption that the evidence favored the ruling. Failure to respond to a motion for summary judgment resulted in admission of all allegations. The Open Records and Open Meetings Act, also known as the Sunshine Law, generally required agencies to produce certain records documents with specified exceptions. The Sunshine Law provided a civil action for failure to timely comply but allowed reasonable delay with a sufficiently detailed explanation, which included the breadth of the plaintiff requester’s multiple requests. The exception for potential litigation included documents on how the agency complied with an earlier request related to threatened litigation. The potential for litigation appeared in public statements that the agency had violated the Sunshine Law. The Missouri Court of Appeals affirmed the summary judgment for the defendant agency.
(Overview summary)
Elad Gross vs. Eric Schmitt, Et al.
Missouri Court of Appeals-Western District – WD87007
Attorneys
No liability to third party for representation of client
The attorney-client relationship meant that lawyers were privileged to represent and advise clients without liability to third parties other than “fraud, collusion, or a malicious or tortious act.” The elements of tortious interference with a business expectancy included absence of justification. Justification meant lawful conduct. The plaintiff’s pleading of conclusory allegations and bare characterization of unspecified events was insufficient. The circuit court did not err in dismissing the claim and the associated claim of civil conspiracy.
BRANSON'S NANTUCKET, LLC, Appellant v. TIMESHARE LAW OFFICE, LLC; NEALLY LAW, LLC, JOHSUA DAVID NEALLY; AND JENNIFER HARDY, Respondents
Missouri Court of Appeals-Southern District - SD38350
Civil procedure
Handwritten date of service was determinative
A rule provided that circuit courts could set aside default judgments for good cause and a meritorious defense subject to review for an abuse of discretion. But de novo review applied to whether the defendant was within the circuit court’s personal jurisdiction, and hence ever in default, as shown by the return of service. The return of service was ambiguous as to the attestation for the date of service, but the date of notarization for the attestation was clear, and it showed that service occurred a year before entry of default. A return “subscribed and sworn to before the notary public in March 2022 and filed with the trial court in February 2023[,]” due to death and substitution of the plaintiff, could not have been served in March 2023. The defendant was in default, and the circuit court erred in setting aside the judgment.
(Overview summary)
Cecil J. McFall, Appellant, vs. David E. Hogan, Respondent.
Missouri Court of Appeals-Eastern District – ED112561
Criminal
Child endangerment degrees differed
Lesser included offense instructions were due on request when supported by evidence to acquit on the greater offense and find guilt on the lesser offense. Such was the case with nested offenses: conduct identical to a degree that one was a subset of another so that committing the greater offense necessarily meant committing the lesser offense. Statutory designations of degree did not determine nesting, as in endangering the welfare of a child. The second degree required the state to show a substantial risk to a child, while the first degree required the State to show mere possession of methamphetamine in a child’s presence. The circuit court did not err in refusing an instruction on endangering the welfare of a child in the second degree.
(Overview summary)
State of Missouri, Respondent, vs. Ryan D. Cole, Appellant.
Missouri Court of Appeals-Eastern District – ED112491
Interrogation was not custodial
Constitutional protections against compulsory self-incrimination required police to Mirandize persons who were subject to custodial interrogations. An interrogation was custodial when the interrogated person was not free to leave as determined by a variety of factors. The defendant initiated contact with law enforcement officers, was not under arrest, was not physically restrained, spoke with law enforcement officers in a room secured from the outside but not locked inside, was fully Mirandized, and knew that she could leave the interrogation at any time. The defendant’s statements were therefore admissible and further evidence procured as a result of those statements was not subject to exclusion.
STATE OF MISSOURI, Respondent vs. TIFFANY ANNE LUKASIEWICZ, Appellant
Missouri Court of Appeals-Southern District – SD38194
Intent to steal shown
The elements of an attempt included a substantial step toward committing an offense, and the offense of burglary in the first degree included unlawfully entering a dwelling to commit a specified offense, including stealing. Stealing specifically appeared in the charging instrument, and an attempt to steal had support in evidence that the defendant banged and kicked on victim’s door, through which defendant could have seen valuables. Earlier use of methamphetamine and heroin supported a motivation. The Court of Appeals affirmed the conviction.
(Overview summary)
State of Missouri vs. Timothy Lee Todd, Jr.
Missouri Court of Appeals-Western District – WD86836
DWI
Negligence as to revocation shown
The elements of driving with a revoked license included criminal negligence as to the revocation, which the State showed with evidence that defendant’s license had been revoked for 12 years. Intentional non-disclosure of a juror’s familiarity with the defendant’s family did not occur when the juror did not become aware of the relationship until trial, and the defendant showed no manifest injustice, so no plain error occurred when the circuit court denied relief on that basis. The courts disfavor references to a booking photo or mug shot, but no prejudice occurred when such references were brief and isolated and did not connect the defendant to a specific crime, so the absence of circuit courts intervention did not constitute plain error. The Missouri Court of Appeals affirmed the convictions for driving while intoxicated and driving with a revoked license.
(Overview summary)
State of Missouri vs. Jeffery Lynn Nichols
Missouri Court of Appeals-Western District – WD86686
Evidence
Third party’s evidence needed for defamation
The elements of a claim for defamation included a false statement that harmed the plaintiff’s reputation, for which the plaintiff’s own testimony was insufficient. The plaintiff testified that multiple statements of the defendants cost him access to workspace, entry to a coffee house, a speaking engagement, and access to his own residence. But that evidence did not link any one statement to the plaintiff’s reputation and constituted merely “conclusory testimony of [the plaintiff’s] perception of [the plaintiff’s] injured reputation[.]” One defendant’s statement that another defendant was working on the first defendant’s behalf did not show agency because it did not show the type and extent of an agency relationship. The circuit court did not err in dismissing the action.
(Overview summary)
Mouna Apperson, f/k/a Nicholas Apperson, Appellant, vs. Natasha Kaminsky, et al., Respondents.
Missouri Court of Appeals-Eastern District – ED112529
Family
Joint legal custody required
Appellant’s briefing violations did not impede appellate review so the Missouri Court of Appeals denied respondent’s motion to dismiss the appeal. Statutory grounds for dissolution of marriage included a finding that the marriage was irretrievably broken, which the record supported with a “prolonged history of discord[.]” But that finding did not require an award of sole legal custody, and the record showed a “commonality of belief in parenting decisions” that supported an award of joint custody as favored by statute. The Missouri Court of Appeals reversed the judgment as to sole legal custody and remanded the action for the circuit court to enter a judgment for joint legal custody.
(Overview summary)
Deborah S. Thornburg, Respondent, vs. James T. Thornburg, Appellant.
Missouri Court of Appeals-Eastern District - ED112178
Post-conviction
No relief by declaratory judgment
Dismissal without prejudice was subject to appeal when the appellant chose to stand on the dismissed petition as pled. The res judicata doctrine precluded re-litigation of facts under any theory. That doctrine prevented a collateral attack on convictions and judgments denying post-conviction relief. That included an action for declaratory judgment that alleged ineffective assistance of post-conviction counsel. And parole or any other early release did not constitute a protected liberty interest other than by statute or regulation that plaintiff did not cite. The Missouri Court of Appeals affirmed the judgment that denied relief.
(Overview summary)
John C. Duvall vs. Missouri Board of Probation and Parole, Et al.
Missouri Court of Appeals-Western District – WD87253
No final judgment on any motion
The judgment adjudicated less than all matters in the initial motion and less than all matters in the amended motion, so the judgment was not final and subject to appeal as to either motion. Which motion was before the circuit court was also unresolved because the late filing of an amended motion raised a presumption of abandonment, on which the circuit court had to conduct an independent inquiry but made no finding on that matter. The time to file an amended motion started with notice to post-conviction counsel of counsel of appointment as post-conviction counsel. The Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Henry L. Ward vs. State of Missouri
Missouri Court of Appeals-Western District – WD86338