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Case summaries for Jan. 29 - Feb. 4, 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.

Civil | Constitutional | Criminal | Workers' Compensation


Plaintiff’s Judgment Void Before Answer Due
The parties settled earlier litigation by an agreement that included a draft consent judgment, to be used if defendant breached the settlement agreement, but never signed and entered in circuit court. In a later action to enforce the settlement agreement, the plaintiff’s petition included the draft, and circuit court entered the judgment on the draft as if the draft were a consent judgment. If the draft were a consent judgment, enforcement would happen by execution and not by plaintiff’s later action. But the draft only constituted allegations subject to proof. The draft cannot have been a consent judgment because no circuit court ever filed, signed, or entered the draft; and the parties cannot create a judgment—even a consent judgment—by themselves. Moreover, circuit court issued its judgment before the time for an answer had run, though rules and constitutional provisions give defendant the right to file an answer before circuit court enters judgment for plaintiff. “A judgment entered against a defendant without granting the opportunity to be heard violates the defendant’s due process rights [and therefore] is void.”
Professional Funding Company, Respondent, vs. Joseph F. Bufogle, Sr., and Bufogle & Associates, P.C., Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108799


MU Gun Ban Okay in Part
Statute provides that the State cannot bar its employees from keeping firearms concealed in a locked car while doing their job on State property. A “notwithstanding” clause expands the application of the statute, does not limit the statute, and voids a State university rule to the contrary. But the statute does not void other prohibitions in the rule, including possession and discharge of explosives, and discharge of weapons, on State university property. Constitutional provision, requiring strict scrutiny of any restriction on the right to keep and bear arms, does not alter the presumption of validity for laws, so the burden of proof remains with the party challenging the rule. The State did not show that prohibitions against discharge and explosives were less than narrowly tailored to further the compelling governmental interest “in promoting safety and reducing crimes [,]” and the University showed that it was, so the Court of Appeals need not decide whether expert testimony was admissible on any other interest.
State of Missouri, Ex Rel., Eric Schmitt, Attorney General vs. Mun Choi, Et Al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83427


Property of Another Includes Co-Owned Property
The elements of arson include “property of another [,]” which means that “someone other than the [defendant] had a possessory or proprietary interest in it [,]” so defendant’s ownership interest in the destroyed property did not negate that element. Therefore, trial counsel was not ineffective for failing to recognize the absence of, and the circuit court had a factual basis for entering, a guilty plea. Denial of post-conviction relief affirmed.
Ronald L. Smith, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108739

Injury Unnecessary for Domestic Assault Convictions
Defendant’s allegation that irrelevant events were missing from a video recording, even if true, did not entitle defendant to a new trial. The State’s decision not to offer cumulative evidence, which was also in defendant’s possession, did not entitle defendant to a new trial. An appellate court reviews a challenge to the sufficiency of the evidence, even if not raised in circuit court, by determining whether a rational fact finder could have found each element of the crime beyond a reasonable doubt. On a charge of domestic assault in the third and fourth degrees, evidence of physical injury is unnecessary, and evidence satisfied the elements of physical pain caused knowingly and recklessly. Statutes provide that domestic assault in the third degree is a lesser degree of domestic assault in the second degree, so the circuit court did not err in submitting an instruction on the lesser offense, “regardless of whether it is a nested lesser-included offense of second-degree domestic assault.” Rule on post-conviction relief does not apply to rulings on motions made during trial, and defendant did not ask for an evidentiary hearing or written ruling on those motions, so the Court of Appeals will not review the rulings for error.
STATE OF MISSOURI, Plaintiff-Respondent vs. RICARTE SOLIBEN, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36600

Burden of Proof Wrongly Assigned on Motion to Suppress
On a motion to suppress, the State has the burden of proof by a preponderance of the evidence, but the circuit court’s ruling shows that the circuit court required defendant to negate a purported consent to search. Remanded for findings of fact based on credibility determinations reflecting the correct allocation of the burden of proof.
State of Missouri vs. Deion D'Wayne Crum
(Overview Summary)
Missouri Court of Appeals, Western District - WD82980

Workers’ Compensation

No Notice or Demand, No Past Medical Expenses
Failure to challenge ALJ rulings before the Labor and Industrial Relations Commission, even when the ALJ’s award was favorable, waived any challenge to those rulings in the Court of Appeals. “Whether a claimant is permanently and totally disabled is a finding of fact, not law” so, when the evidence is enough to support the Labor and Industrial Relations Commission’s award, the Court of Appeals affirms the award. “Challenges alleging that the Commission’s award is not supported by the facts found by the Commission ... can only succeed if the Commission affirmatively found facts contrary to its award, rather than failing to find facts to support its award.” Commission’s findings of fact were not contrary to its denial of permanent total disability, so Commission did not err in denying permanent total disability, the Commission’s acknowledgment of evidence otherwise notwithstanding. Statute conditions employer’s liability for medical treatment of claimant’s choice on claimant’s notice to or demand of employer, which claimant did not give, and for which no authority substitutes constructive notice. A claimant’s testimony can establish temporary total disability, but only if the Commission finds it credible, an assessment to which appellate courts defer.
Justin Kent, Appellant, vs. NHC Healthcare and Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108667