Case summaries for Feb. 3 - Feb. 9, 2023

Appellate | Civil | Criminal | DWI | Employment Security | Evidence | Juvenile | Personal Injury | Post-Conviction | Workers' Compensation

Appellate

No Issues Left to Decide 
If the order appealed constituted a judgment, it could not include any ruling on the issue appealed because that issue was resolved in an earlier judgment already appealed, so the law of the case barred further litigation on that issue. If the order constituted a special order after judgment, the notice of appeal was too late, because the order became final on issuance and appellant filed the notice of appeal 39 days later. Either way, the Court of Appeals lacks jurisdiction, so the appeal is dismissed.  
EMERALD POINTE, LLC., Appellant vs. TANEY COUNTY PLANNING COMMISSION, TANEY COUNTY BOARD OF ADJUSTMENT, Respondent 
Missouri Court of Appeals, Southern District - SD37630

Civil

Default Stands 
Rule sets forth the manner of serving process and allows service on a limited liability company through the person in charge of its office. The record shows compliance with that rule through a special process server, including a complete return of service, the accuracy of which was for the circuit court to determine by assessing the credibility of testimony. The law favors a motion to set aside a default judgment, which may occur when the movant files in a reasonable time, alleges a meritorious defense to the underlying claim, and alleges good cause for the default. The movant alleged a different source of good cause on appeal from that alleged in circuit court and so did not preserve error as to that theory.  
Xtra Lease, LLC, Respondent, v. Pigeon Freight Services, Inc., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110391

Filing of Amended Petition Denied 
Petitioner filed an action in circuit court, removed his action to federal district court, and filed an amended petition in federal district court. When the federal district court remanded the action to circuit court, the circuit court’s file included the amended petition, which petitioner sought to file in circuit court. Rule provides that if a petition is not subject to amendment as a matter of right, leave to amend is granted freely, but not automatically. The purpose of allowing an amended petition is to address facts unknown or overlooked in the original petition. The original petition shows that appellant was aware of the facts for which petitioner sought to file an amended petition. Dismissal with prejudice for failure to state a claim was not an abuse of discretion.  
Eric S. Clark vs. Bridgette Shaffer, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85589

Criminal

Corpus Delecti Rule Discussed 
The corpus delecti rule is a rule of evidence that bars defendant’s confession absent some corroborating evidence of the offense charged. The corroborating evidence can be circumstantial and slight. But the State offered no corroborating evidence, only evidence that defendant was alone with victim for a few seconds at an unspecified time in a seven-month period, and offered nothing to show that such time was the time of the offense. The confession of defendant was therefore inadmissible. Sentence vacated, other points are moot, and the action is remanded to circuit court.  
STATE OF MISSOURI, Respondent vs. DAVID TROYER, JR., Appellant 
Missouri Court of Appeals, Southern District - SD37379

Evidence Supports Finding on Deliberation 
The elements of murder in the first degree include deliberation, which the State showed through evidence of defendant’s statements showing a plan to commit murder, use of trickery to lure victim into a concealed location, 27 stab wounds on victim’s body, and flight from the scene. An instant of reflection is enough for deliberation to occur.  
State of Missouri, Respondent, v. Christopher Robert Sokolic, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110467

Property Value Discussed 
On a charge of property damage, evidence of recent purchase price established property value, to exclusion of insurance benefit or a statute from another chapter. The justification of necessity applies when a reasonable person believes the charged action was necessary to avoid imminent injury. That did not include defendant Uber driver throwing away the iPhone that a passenger left in defendant’s car the night before based on a perceived threat because no injury was imminent. Therefore, the circuit court did not err in refusing an instruction on the justification of necessity.  
State of Missouri, Respondent, v. Sara M. Eyler, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110234

DWI

Chronic Offender Status Unsupported 
Statute enhances the degree of the offense of driving while intoxicated if the State shows a sufficient number of prior convictions, within a specified time, in which “the conduct involved constituted ‘driving while intoxicated’ ... as defined at the time of the current offense ... , not the time of the conduct underlying the prior conviction.” Driving means “physically driving or operating [,]” and not “merely being in ‘actual physical control’ of, a vehicle. Evidence admissible to support that finding includes “police reports and a copy of the underlying traffic citation [.]” “[T]he bare designation of the charged offense” in an official record does not prove driving. When an offense’s elements include alternatives to “actual driving [,]” a conviction of that offense does not show “actual driving,” so that conviction does not count toward chronic offender status. An enhanced sentence is subject to appeal for sufficiency of the evidence, which need not be included in a motion for new trial, as in any bench ruling. Remanded for re-sentencing.  
State of Missouri vs. David Scott Nowicki 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84851

Employment Security

Ruling on Timeliness Necessary 
After a first hearing, and a first determination against claimant, claimant filed a first application for review with the Labor and Industrial Relations Commission. That first application for review was untimely, but alleged defective notice of the first determination, so the Labor and Industrial Relations Commission remanded the action for a second hearing—but not a second determination—on those allegations. After a second hearing, a second determination, and a second application for review, the Commission dismissed the second application for review as untimely filed. But the Commission also ruled that the second determination was unauthorized, which rendered the second application for review unnecessary, so the dismissal was unsupported by law and fact. The Court of Appeals remands the action to the Commission for a ruling on the first application for review’s allegations as to insufficient notice and, if that ruling favors claimant, on the merits of the action. 
Mary Ann Dewes vs. Division of Employment Security 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85578

Evidence

Rule of Completeness Discussed 
The State offered text messages between defendant and victim, to which defendant objected under the rule of completeness. The rule of completeness supplements an edited document to prevent distortion of its contents, but defendant made no offer of proof as to what matter would make the evidence complete, and the text messages were cumulative anyway. Presenting evidence waived any error in denying a motion for acquittal at the close of the State’s evidence, if defendant made one, which the record shows did not happen. Statute allows impeachment with evidence of a previous conviction in the form of certified records. Plain error review requires an allegation of manifest injustice, or a miscarriage of justice, and arguing that the circuit court merely abused its discretion is insufficient.  
STATE OF MISSOURI, Plaintiff-Respondent v. BRYON ALAN HANSEN, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37423

Juvenile

Certification Affirmed 
The record supports a conclusion that appellant had exhausted the juvenile system’s resources. The Circuit court’s judgment, certifying juvenile to stand trial as an adult, shows that no assumption of guilt occurred. The circuit court “carefully considered every factor set forth in [the governing statute] in its thoughtful analysis [.]” No abuse of discretion occurred, so the Court of Appeals affirms the judgment.  
In the Interest of: D.D.B. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110414

Personal Injury

Liability Insurance Did Not Waive Sovereign Immunity 
Statute preserves a public entity’s sovereign immunity except as specifically waived. Waivers include claims for which the entity purchases insurance. Insurance contracts for a public entity must bear the signatures of officials specified by statute or they are null and do not waive sovereign immunity. Sovereign immunity is not a defense, it is an immunity, which bars an action entirely. To assert that bar in circuit court, school district filed a motion for summary judgment, but the denial of that motion is not subject to appeal, so school district’s remedy was by petition for a writ of prohibition. School district’s commercial liability policy excluded every claim barred by sovereign immunity so the policy did not waive sovereign immunity. Preliminary writ made permanent.  
State of Missouri, ex rel., The School District of Kansas City 33 vs. The Honorable Jerri J. Zhang 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85738

Insurance Did Not Waive Sovereign Immunity 
Statute preserves a public entity’s sovereign immunity, except as specifically waived, and waivers include claim for which the entity purchases insurance, unless the policy recites that it does not constitute a waiver of sovereign immunity, as defendant county’s policy did. Summary judgment is subject to de novo review on appeal, so appellant’s argument in the Court of Appeals must look the same as in circuit court, and departure from the rules governing circuit court procedure and appellate procedure preclude appellate review.  
Cassandra Cox vs. Callaway County Sheriff's Department, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85350

Post-Conviction

Evidentiary Hearing Necessary 
Rule sets forth the procedure for a guilty plea, including a colloquy with defendant and ruling on the voluntary quality of the plea, with which the transcript of the plea hearing shows compliance. On that claim, no evidentiary hearing was required, and the Court of Appeals affirms the denial of relief on that claim. But the record does not refute movant’s claim that counsel was ineffective for failing to advise that a lesser-included offense might be at issue, so an evidentiary hearing was necessary before denying that claim, and the Court of Appeals remands the action for that purpose. 
Johnathan Wyatt, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110537

Abandonment Inquiry Required 
Rules allow the circuit court to extend the time for filing an amended motion, but only before the time expires and not after, so circuit court’s extension was ineffective and the amended motion was late. Late filing raises a presumption of abandonment, into which the circuit court must independently inquire, but the record does not show that the inquiry occurred. Remanded for inquiry into abandonment.  
Travon D. Johnson, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110531

Representing Co-Defendants Okay 
A motion describes ineffective counsel only by making allegations of sub-standard performance, and resulting prejudice, that are not already refuted in the record. The record shows that counsel represented two defendants who agreed as to the facts, including who committed the offense, had no desire to testify against each other, discussed plea deals with counsel, and “made a fully informed, well-documented waiver of any potential conflict of interest based on these facts.”  
Robert S. Jones, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110457

Disappointment Does Not Negate Volition 
Movant’s guilty plea waived any claim of ineffective counsel except as to movant’s volition and knowledge in making the plea. Testimony of trial counsel, plea counsel, and movant showed that movant knew there was no guarantee of the outcome he desired. “A disappointed expectation of a lesser sentence does not make a guilty plea involuntary.” 
JAMES D. MORELAND, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD37482

Workers’ Compensation

Objective Symptoms of an Injury Shown 
Statutes define an accident to include an event “producing at the time objective symptoms of an injury [,]” meaning signs of anatomical violence perceptible to others. That included the strain that claimant felt when pushing a heavy cart, which produced difficulty walking later that shift. Rule requires citation to the statutory authority for appellate court review of an agency decision. Failure to comply with that rule and others impedes review of appellant’s points except one. 
JEANNIE E. HARPER, Claimant-Respondent vs. SPRINGFIELD REHAB AND HEALTH CARE CENTER/NHC HEALTH, Employer-Appellant PREMIER GROUP INSURANCE COMPANY CORVEL ENTERPRISE COMPANY, INC. (TPA), Insurer-Appellant and TREASURER OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND, Additional Party-Respondent 
Missouri Court of Appeals, Southern District - SD37268