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Case summaries for Jan. 27 - Feb. 2, 2023


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.

Attorneys | Criminal | DWI | Employment Security | Family | Juvenile | Local Government | Post-Conviction | Probate | Real Estate


Former Associate Circuit Judge, Now Administrative Hearing Commissioner, Suspended 
While serving as associate circuit judge, respondent received a reprimand for violating canons of judicial conduct, but the governor nevertheless appointed respondent a commissioner of the Administrative Hearing Commission when respondent lost a re-election campaign. During that campaign, respondent threatened to expose an opponent’s husband as unfaithful, which respondent learned from a client whom the revelation would also have damaged. Aggravating circumstances include previous discipline, intentional violations while in a position of judicial authority, and “acting with a selfish motive, attempting to retain his position by any means, refusing “to acknowledge any wrongdoing [despite] substantial experience with the law.” License suspended with no leave to apply for reinstatement for two years.  
In re: Philip E. Prewitt, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99627


Life-Long Registration Required 
The Missouri Sex Offender Registration Act required lifetime registration of specified persons on a Missouri registry, including anyone who had ever been required to register under United States law. Amendments to United States statutes classified offenses into three tiers and provided registration for a term of years for each, while amendments to Missouri statutes provided the same tiers and a procedure for removal from the registry, but the Missouri amendments do not apply to a person required to register under United States law. “While the General Assembly added language to, and removed language from, [the statutes], the language imposing a registration requirement for ‘[a]ny person who is a resident of this state who … has been or is required to register under tribal, federal, or military law’ remained unchanged.” Therefore, such persons remain subject to lifetime registration. United States law required appellants to register so the circuit court did not err in denying appellants’ petitions for removal from the registry. 
Brock Smith, Appellant, vs. St. Louis County Police, et al., Respondents. and Gary Nelson Ford, Appellant, vs. Col. Jon Belmar, Chief of Police as Chief Law Enforcement Officer of St. Louis County, Pursuant to County Charter, and Missouri State Highway Patrol, and Jim Buckles, Sheriff of St. Louis County as "Chief Law Enforcement Official" as Defined by RSMo 589.404(3), Respondents. 
(Overview Summary) 
Supreme Court of Missouri - SC99715 and SC99714

Waiver of Counsel Form Needed for Misdemeanors, Not for Infraction  
Constitutional provisions protect the right to counsel, by making sure that defendant waives counsel only after a colloquy with the bench on the record, and as statute provides with a specified form. The form must include the offenses and their maximum penalties, but those entries were blank and the record shows no colloquy, so plain error occurred in proceeding on the misdemeanor charges. Infraction charges are not criminal, so no counsel, waiver, or form was at issue. Judgment affirmed as to the infraction, reversed as to the misdemeanors, and remanded.  
Missouri Court of Appeals, Southern District - SD37513

No Speedy Trial, But No Plain Error 
Constitutional provisions guarantee a speedy trial, but a violation of that right must find its remedy by a motion to dismiss and motion for new trial, or plain error review. Plain error review applies to speedy trial issues the same as any other unpreserved charge of error. Appellant showed no prejudice, much less manifest injustice or miscarriage of justice, in the delay. Prosecutor’s closing argument had support in the evidence, did not mischaracterize the evidence, and did not constitute plain error. 
STATE OF MISSOURI, Plaintiff-Respondent v. MATTHEW THOMAS ESTES, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37368 


Prior Offenses Implicitly Intoxication-Related   
Statutes enhance the degree of the offense of driving while intoxicated for persistent offender status, meaning at least two previous intoxication-related offenses. Intoxication-related offenses include specified offenses that include the element of “driving,” which the State showed with evidence that defendant was “operating” a vehicle, which implies driving. “Although the [circuit] court could have drawn a different conclusion from these facts and found that the use of the term ‘operated’ in the charging language was not intended to specifically identify which of the three acts prohibited by the statute [defendant] had performed, our standard of review requires us to accept ‘as true all evidence tending to prove guilt together with all reasonable inferences that support the finding.'"   
State of Missouri, Respondent, vs. James P. Golden, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110113

Employment Security

Good Cause Extends Filing Time   
Appellant’s point relied on is multifarious, and therefore subject to dismissal, but the Court of Appeals rules on the point because the point is understandable. Statutes set a deadline to appeal a decision from the Division of Employment Security to an Appeals Tribunal, and allow an extension of time for good cause, meaning reasonable action taken in good faith. Good faith appears in the record showing that the Division could not trace its own bifurcation and re‑consolidation of appellant’s action, assigned four hearing officers to two cases (one each to hear and one each to decide), and did not mail notices of its decisions to appellant; that appellant undisputedly did not receive such notices; and that appellant did “make a good faith attempt to navigate the unnecessarily complicated appeals process” by filing well before the one deadline for which appellant did receive notice. Findings of no good cause to file late constituted an abuse of discretion. Dismissals remanded to determine appellant’s eligibility for benefits before determining whether an overpayment occurred.    
Tracy L. Sanders vs. Division of Employment Security   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85554 and WD85555


Children’s Best Interest Supports Termination of Parental Rights 
Statutes allow termination of parental rights on enumerated grounds, if that remedy is in the child’s best interest, as shown by seven enumerated factors. Those factors “are merely an aid to the ‘best interests’ determination [and] there is no minimum number of negative factors necessary for termination; [r]ather, determining a child’s best interest is a subjective assessment based on the totality of the circumstances.” The totality of circumstances may include additional findings not described in those factors, and all are determined by evidence weighed in circuit court, not on appeal. 
Missouri Court of Appeals, Southern District - SD37583 and SD37584


Appeal of Disposition Moot   
Circuit court denied a continuance of appellant’s dispositional hearing, and committed appellant to a juvenile facility, so appellant appealed on the grounds of the denied continuance. But appellant completed the commitment as ordered, so no relief on the motion for continuance is possible, which makes the matter moot. Mootness supports dismissal and no exception applies. Appeal dismissed.      
In re the Matter of K.L.M. vs. Juvenile Officer   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85029

Local Government

Pre-Filing Notice Ordinance Okay 
Missouri Constitution provides that, “even in the absence of an express delegation by the people of a home rule municipality in their charter, the municipality possesses all powers which are not limited or denied by the constitution, by statute, or by the charter itself.” No constitutional or statutory provision barred respondent city from conditioning the city’s liability for damages on notice to the city. The charter provision, therefore, was a defense to appellant’s action, so circuit court did not err in dismissing appellant’s action.   
Christopher Zang, Appellant, vs. City of St. Charles, Missouri, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99419


Omitting an Instruction Was Sound Strategy   
Rule requires findings of fact on all claims but omission of findings of fact on a claim does not require reversal when the record shows that no relief was due. Movant charged that trial counsel failed to offer instructions that would have led to conviction on a lesser offense. But sound strategy supported trial counsel’s choice of instructions. “An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel.” Also, movant could not show that conviction on a lesser offense was likely, and thus failed to show prejudice.    
Dwight Moore, Appellant, vs. State of Missouri, Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110189

Postmarked Envelope Discussed   
Circuit court must dismiss an untimely-filed motion, and a motion’s timely filing is demonstrable by postmark, so rules require the circuit clerk to retain the envelope containing the motion, which the circuit clerk did not do. Instead, the circuit clerk returned the envelope to movant, with the incomplete motion, resulting in no prejudice to movant’s ability to prove the postmarked date. Nevertheless, movant failed to prove timely filing or an exception to that requirement. Circuit court did not err in dismissing the motion and the Court of Appeals need not determine the motion’s merits.    
Nathaniel W. Osborn vs. State of Missouri   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD84942


Safe Harbor Appeal Too Late, Duplicate Order No Help   
Statutes allow a safe harbor for challenging a no-contest provision in circuit court, and appeal the resulting order, either with the final judgment in the action, or by interlocutory appeal within ten days of the day on which the circuit court issues its order. The circuit court issued an earlier order, then issued a later order.  Appellants’ appeal was timely as to the later order but the later order was merely a duplicate—it neither “vacated, reopened, corrected, amended, … modified” nor “attempt[ed] to extend the time for filing a notice of appeal” from the earlier order. The time for an interlocutory appeal started with the issuance of the earlier order and appellants’ interlocutory appeal was too late. Appeal dismissed.   
JULIE ANN THOMAS, Plaintiff/Respondent vs. KURT E. H’DOUBLER, individually and as trustee of the F.T. H'Doubler, Jr.,Revocable Trust dated May 2, 2000, and the Francis T. H’Doubler, Jr., Family Trust created thereunder, and as co-trustee of the F.T. H’Doubler, Jr., Irrevocable Trust dated May 1, 2000, and the Julie Ann Thomas Trust created thereunder, and as trustee of the Joan L. H’Doubler Irrevocable Trust dated December 28, 1982, and the Trust for the benefit of Julie Thomas and the Credit Shelter Trust created thereunder; and SARAH ELLEN MUEGGE, individually, and as co-trustee of the F.T. Doubler, Jr. Irrevocable Trust dated May 1, 2000, and the Julie Ann Thomas Trust created thereunder; Defendants/Appellants DAVID A. HEALY, as personal representative of the Estate of Scott W. H’Doubler; BRIAN MUEGGE, individually and as next friend of S.F.M. and B.W.M.; BETH MCGEE, individually and as next friend of R.C.M. and E.M.; TODD H’DOUBLER; SALLY H’DOUBLER; LAURIE THOMAS; BECKY THOMAS; COLLEEN T. WALTON, individually and as co-guardian of the person Marie H’Doubler and co-conservator of the Estate of Marie H’Doubler; GARY T. WALTON, SR., in his capacity as co-guardian of the person Marie H’Doubler and co-conservator of the Estate of Marie H’Doubler; and RICK STEVEN DENNEY, Defendants/Respondents.   
Missouri Court of Appeals, Southern District - SD37483

Petition for Discovery of Assets Inadequate   
Rule provides that a dismissal is without prejudice unless otherwise provided, but any dismissal is with prejudice when plaintiff elects to make no further allegations. A claim for discovery of assets by an estate must allege that the disputed property belongs to the estate, but that allegation was absent from the petition, and contrary allegations appeared in the petition. “Thus, the petition essentially alleged that the property at issue may have been part of [the] estate – or maybe not.” The circuit court did not err in dismissing the petition. As to one asset, appellant challenged less than all grounds for the circuit court’s ruling, and any ground unchallenged compels affirmance of that ruling.    
In the Estate of Virgil D. Williams, Deceased; Estate of Virgil D. Williams vs. Kim Bauman, Randy Bauman, Kae Lewis and Chad Lewis   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85399

Heirship Determined Outside Administration of Estate 
Husband and wife made an antenuptial agreement in which wife renounced any claim to disputed property. Husband had children from a previous marriage, and died without a will, and without any administration. Those facts, notwithstanding the administration of later decedent wife’s estate, granted standing to the children to bring an action for determination of interests in the disputed property by statute. 
In the Estate of Richard E. Smith, APRIL M. SVEC, Personal Representative of the Estate of Deidre A. Smith, and ASHLEY A. LUX, Appellants vs. AMIE M. BROOKS, ERIC R. SMITH, and JOSHUA C. SMITH, Respondents 
Missouri Court of Appeals, Southern District - SD37438

Real Estate

No Reformation of Deed on Unilateral Mistake 
Reformation of a deed may occur upon the parties’ mutual mistake, meaning that “both have done what neither intended.” The quantum of proof is clear, cogent, and convincing evidence. Parol evidence is admissible for that purpose. The circuit court found that parents intended to convey a life estate in land to themselves, and a remainder to two of their children; but the deed added a third child to the remainder by an error of the parents’ scrivener. That scrivener’s error constituted a unilateral mistake because the scrivener acted for the parents only, and a unilateral error supports reformation only when concealed by bad faith conduct and sometimes if repudiated by the donor. The former was absent from the pleadings, and the latter was absent from the record because one of the parents had died. Reversed and remanded for a judgment denying reformation. 
Lillian Singleton, Respondent, vs. Sheila Singleton, et al., Appellants. 
(Overview Summary) 
Supreme Court of Missouri - SC99592