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Case summaries for Feb. 5 - 11, 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.

Administrative | Appellate | Contract | Criminal | Insurance | Post-Conviction | Real Estate | Utilities | Workers' Compensation


Litigation Expenses Award Affirmed
Statutes allow an award of litigation expenses, including attorney fees, when a non-State party prevails in litigation and the State fails to show substantial justification for its position in fact and law. State terminated services to a severely disabled client after ten years of providing those services despite undisputed and “overwhelming evidence that these services were medically necessary to [the client]’s health and safety and her ability to avoid being institutionalized.” The State’s basis was an allegation that the provider of services lacked a qualification not set forth in the State’s standards. Award of litigation expenses before State agency affirmed, and remanded to determine expenses due in circuit court and on appeal.
M.F., by her Parents and Guardians, Carl Fields and Beverly Fields, Respondents, vs. Mark Stringer, in his official capacity as Director of the Missouri Department of Mental Health, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108648


Ruling Irreversible Without Evidence
Appellant has the burden of proof and the duty to preserve error, including transcribing evidence and argument. On a motion to intervene, appellant filed no verified pleading, and did not request an evidentiary hearing. So, when circuit court based its ruling on matters presented off the record, appellant could not show reversible error. 
In re the adoption of L.L.F.M., J.T.B., and C.C.B., Respondents vs. R.M., Appellant
Missouri Court of Appeals, Southern District - SD36842


Award Under Prompt Pay Act Reversed
Contract determined payment for respondent’s work in part by timely competition of work, for which extensions were possible, but expressly only if respondent made a written request. Court of Appeals reverses circuit court’s award of amounts withheld from respondent, with prejudgment interest and attorney fees, under the Prompt Pay Act.
ADB Companies, Inc. vs. Socket Telecom, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD83575


Conviction as Accomplice Affirmed
Under statutes providing accomplice liability, mere encouragement is sufficient for a finding of guilty, and sufficient evidence showed that appellant encouraged and helped his confederates steal from cars and by use of a stolen credit card. It is not “required to prove that [a]ppellant stole each individual item listed on the verdict director, [only to show that appellant’s confederates] committed the crimes in a specific timeframe, place, and manner consistent with the victims’ circumstances, [and] worked together as a group [.]” On appeal, a finding of guilty in the adjudicatory stage of a juvenile proceeding is subject to the same standards as in a criminal action. When the record shows that the judgment included a clerical error as to the charge on which circuit court found appellant guilty, Court of Appeals remands for correction nunc pro tunc.
In the Interest of: D.E.W.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108862


Both UM and Workers’ Comp Apply
When a motorcyclist sped away, while appellant highway patrolman was trying to restrain the motorcyclist, operation of the motorcycle caused the injury. Uninsured motorist coverage is personal to the injured, and is not “reduced to injured motorists just because worker’s compensation also applied to the injuries.” An exclusion, for claims subrogated to another insurer, does not apply because appellant’s employer has no subrogation rights to appellant’s insurance as it does to a third-party tortfeasor’s insurance.
Collin M. Stosberg vs. Electric Insurance Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD83723 and WD83741


Appeal from Ruling on Wrong Motion Dismissed
Current rule for filing an amended motion “allows for up to two thirty-day extensions of time, [but] the version applicable to [appellant]’s post-conviction motion did not [,]” so circuit court’s orders purporting to grant a further extension were unauthorized. Appellant’s amended motion was late, circuit court had authority to rule on the claims in the initial motion only, and never did. Therefore, a judgment in appellant’s action is not final and the Court of Appeals dismisses the appeal.
Garron T. Briggs vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82991

Real Estate

Ordinance Unauthorized
Statute authorizes cities to make ordinances charging the expense of suppressing a nuisance on property against the property, its occupant, or its owner. Respondent’s ordinance purported to hold liable the “person in control of such property [.]” The city made no finding that appellant was the  property’s occupant or its owner, so the city had no authority to order appellant to remedy a nuisance on the property.
The Fred Kemp Company LLC, Respondent, vs. Kitrell Braselman, in his official capacity as the Director of Public Works, City of Black Jack, Department of Public Works, City of Black Jack, and City of Black Jack, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108418


Regulation on Certificates of Convenience and Necessity Okay
The statutes authorize the Public Service Commission to regulate any public utility that is manufacturing electricity, selling electricity, or distributing electricity; not all are required for the Commission’s authority, any one is sufficient. Whether an asset, plant, or service are outside the utility’s certificated service area is irrelevant.  Statutes require “the permission and approval of the Public Service [C]omission” before starting construction on any electric plant. The Commission’s regulation defines construction to include updates, of a certain impact, to an existing plant. “A decision that carefully balances competing interests, as this one does, is the antithesis of a decision that is arbitrary, capricious, or an abuse of discretion.” Statutes also forbid utilities to “exercise any right or privilege under any franchise ... without first having obtained the permission and approval of the Public Service [C]ommission.” The “exercise any right or privilege under any franchise” includes the operation of any asset, so the permission and approval of the Commission is necessary before operating any asset, and the Commission’s regulation saying so was authorized by law. The accompanying private entity fiscal note was sufficient.
In the Matter of the Amendment of the Commission's Rule Regarding Applications for Certificates of Convenience and Necessity; Kansas City Power and Light and KCP&L Greater Missouri Operations Company, Appellants, vs. Missouri Public Service Commission and Dogwood Energy, Respondents.
(Overview Summary)
Supreme Court of Missouri - SC98039

Rate Case Legal Expenses Examined
On review of the Public Service Commission’s decision, an appellate court examines the whole record, with deference to the Commission’s determinations of credibility and weight. Appellate courts will affirm “a reasoned, careful” determination of an issue even if it departs from earlier Commission determinations. In a general rate action, a public utility’s expenditures are presumed allowable building rates until a party shows “serious doubt [.]” Expenditures may be reasonable, in that the purchase was prudent; but not just, in that it benefits only the public utility and not customers. Determining legal expenses of the action allowable in rates according to other items allowable in rates was not error. Even when projecting future expenditures by expenditures from a past test year, the test year does not strictly limit relevant evidence, when evidence shows that events outside the test year would distort rates if unaddressed. The Commission miscalculated the value of appellant’s pension asset allowable in rates, so the Supreme Court reverses that determination and remands it for a determination on amortization of that asset.
Spire Missouri, Inc., f/k/a Laclede Gas Company, Appellant, vs. Public Service Commission of the State of Missouri, Respondent, and Office of Public Counsel, Intervenor.
(Overview Summary)
Supreme Court of Missouri - SC97834

Workers’ Compensation

Commission Must Rule on Estoppel
In any contested case, the decision must set forth the basic findings of fact that support the ultimate findings of fact, and a summary of evidence and express analysis of the evidence is unnecessary.  The record supported the Labor and Industrial Relations Commission’s finding as to which of two agreements controlled relations among the parties. The Commission has authority to rule on issues of judicial estoppel and collateral estoppel, and neither applies to claimant. On review of the Commission’s decision, an appellate court examines the whole record, deferring to the Commission’s determinations of credibility and weight of evidence, but does not review the record in a light favorable to the Commission. Arguments not included in a point relied on, or not developed as case law requires, are not preserved.
Michel Ziade vs. Quality Business Solutions, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83763