Case summaries for Feb. 11 - Feb. 17, 2022

Appellate | Civil | Constitutional | Construction | Criminal | Employment | Employment Security | Juvenile | Local Government | Orders of Protection | Post-Conviction | Real Estate | Workers' Compensation

Appellate

Preservation Required a Motion to Amend  
A judgment not expressly ordered with prejudice is presumed without prejudice but is still subject to appeal if it practically ends the action. Nevertheless, like any other point on appeal, it must be preserved. Preserving a point related to the judgment’s language requires a motion to amend the judgment, for which a motion pre-judgment is no substitute. Appeal dismissed.  
Great West Casualty Company, Appellant, vs. Deborah Carr, et al., Respondents.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED109819 

Civil

Notice of Trial Setting Insufficient  
Rule required notice of a trial date and, “[u]nless the record establishes that the complaining party was provided notice of a trial setting, we may conclude the complaining party did not receive notice.” On a motion to set aside judgment, circuit court did not send notice to appellant, only to appellant’s counsel in the underlying proceeding whom, the record suggested, no longer represented appellant on the motion. Rule provides that appointed counsel represents appellant through appeal until released, but record of a billing suggests a release, and circuit court did not know otherwise. Remanded.  
S.L.C. and M.S.C. vs. M.M.  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84549

Constitutional

No Public Funds for Private Campaigning  
Constitutional provisions protect the right to political advocacy, but guarantee public funds for that purpose to no one, including elected officials. Therefore, a statute barring officials and employees of political subdivisions from using public funds to advocate on ballot issues or candidates for office, is not unconstitutional. “[T]hese officials have no indefeasible right to use public funds to subsidize their speech [.]” The terms “ballot measure,” “public funds,” and “advocate, support, or oppose” are not unconstitutionally vague.   
City of Maryland Heights, et al., Respondents, vs. State of Missouri, Appellant.  
(Overview Summary)  
Supreme Court of Missouri - SC99098

Construction

Arbitration Mandated for Matters “Touching” Warranty  
“Courts ‘should order arbitration of any dispute that touches matters covered by the parties’ contract.’” The parties’ contract for residential construction and sale consisted of several documents, of which a mandatory arbitration clause addressed only a limited warranty, but the limited warranty addressed all the matters in the petition—negligent performance, implied warranty of completion in a workmanlike manner, and implied warranty of habitability—so arbitration of those matters was mandatory. Missouri Uniform Arbitration Act provides that no limited warranty on the construction of a new home constitutes a contract of adhesion. An argument, raised on appeal, but not made in circuit court, that the arbitration clause is unconscionable, is unpreserved.  
Amanda Mackey and Greg Mackey vs. Schooler's Construction, L.L.C.  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84309

Criminal

Waiver of Hearing Off the Record Is Plain Error  
Defendant had the right to waive counsel voluntarily, knowingly, and intelligently. An effective waiver requires a signed form and “a thorough evidentiary hearing that establishes that the accused understands exactly what rights and privileges they are waiving, as well as the dangers associated with waiving constitutional rights.” Appellate review of a challenge to the waiver requires a record of the evidentiary hearing. “The trial court’s failure to hold an inquiry on the record constituted plain error [that] necessarily resulted in a manifest injustice and miscarriage of justice.”  
State of Missouri, Respondent, vs. Eugene Mark Sullivan, Jr., Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED109305

Interference with Custody Conviction Affirmed 
The elements of interference with custody includes intent. “Intent can be established by circumstantial evidence or inferred from surrounding facts. The necessary intent ... [can be] formed before or even during the incident.” Evidence that appellant had no custody rights, and no authority to take a child from the child’s custodial parent, supported a finding of intent to interfere with custody. 
STATE OF MISSOURI, Respondent vs. COLE YOUNGER, Appellant 
Missouri Court of Appeals, Southern District - SD37138

Employment

Heart Problems Is a Disability  
Statutes and regulations bar disability discrimination in employment, including firing an employee who has a physical impairment that substantially limits a major life activity, but does not prevent performance of essential job functions with or without reasonable accommodation. Employee’s essential duties included outdoor work, which employee’s coronary artery disease restricted during extreme temperatures. Employer established that outdoor work was an essential duty but did not establish that outdoor work in extreme temperatures was essential. Employer established that employee had found other work, but that did not negate employee’s restriction. Whether accommodating employee, by assigning other employees to outdoor work in extreme temperatures, is a reasonable accommodation depends on facts not established by employer. Therefore, the circuit court erred in granting summary judgment for employer.  
Steven Loerch, Appellant, vs. City of Union, Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED109707

Whistleblower Petition Not Shown Untimely  
Statutes allow a whistleblower action against an employer “within one year after the occurrence of the alleged violation.” Plaintiff alleged that the City's Human Resources Board hearing process, rejecting plaintiff’s appeal, concluded a year before plaintiff filed the petition. On a motion to dismiss for failure to state a claim, defendant did not negate that the Board’s process was part of the violation. Therefore the circuit court erred in dismissing the petition.  
B. Richest vs. City of Kansas City, Missouri   
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84464

Employment Security

Remote Work Was Not a Voluntary Quit  
Employment security statutes provide no benefits for persons who choose not to be employed. Claimant’s contract generally required claimant to associate with a local office, but employer allowed remote work during the coronavirus pandemic, which claimant did from another State. The record showed that claimant could work remotely from another State, and nothing showed that claimant would not return to the local office when asked, so nothing showed that claimant voluntarily quit. Denial for misconduct was not an issue at trial, so it is not an issue on appeal. Remanded to award benefits.  
Fedra Ekres vs. Division of Employment Security  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84496

Juvenile

No Ineffective Assistance of Certification Counsel Shown  
Judge is presumed unbiased and appellant did not show otherwise. Comments on the evidence after presentation of the evidence do not show prejudgment. Findings supported certification, especially as to violence, over juvenile officer’s recommendation against certification. Because there is a right to counsel, and no procedure for post-certification relief based on ineffective assistance of counsel, such issues are subject to direct appeal. The standard is uncertain, either substandard representation and prejudice, or deprivation of a meaningful hearing. Failure to object to a police report supported no relief, because it is uncertain whether the law of evidence applied, the evidence was not binding, no meritless objection is necessary, and no prejudice resulted. The order must have findings supporting its conclusion sufficient for judicial review, which is for abuse of discretion, and need not address non-exclusive statutory factors. Rule and statute make a dispositional order of the juvenile division appealable without regard to denomination as a judgment. Premature filing delays the start of appeal until the order’s finality 30 days after issuance.  
In the Interest of: J.N.W. vs. Juvenile Officer  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84378

Local Government

Residency Does Not Mean Standing
Plaintiffs’ petition challenged the abandonment of a road. In any civil action, courts must determine standing, which means an interest sufficient to bring the action. Such interest must be greater than the general public’s interest, like a pecuniary interest or a personal interest. But plaintiffs did not allege any such facts, so the Court of Appeals enters judgment dismissing the petition without prejudice for lack of standing and affirms on that basis, rather than the circuit court’s stated grounds for dismissal with prejudice.
RANDY FOSTER, JERRY DARTER, STANLEY RODERY, SCOTT BUIE, and DEWAYNE HENSLEY, Appellants vs. DUNKLIN COUNTY, MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD37204

Orders of Protection

Appeal Moot  
Pending appeal of judgment imposing a full order of protection, the order lapsed, mooting an appeal. “Lapsed protective orders ... are not of adequate public interest to require appellate review.” Appeal dismissed.  
D.R.F., III, Respondent, vs. D.L.S., Appellant.   
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED109371 

Post-Conviction

One Incident, Two Convictions, No Double Jeopardy  
Movant pleaded guilty to possession of a controlled substance and child endangerment, based on one incident of possessing methamphetamine, from which movant sought post-conviction relief for double jeopardy. “[I]t is irrelevant for purposes of our double jeopardy analysis that the same set of facts was used to prove Movant committed both offenses, and we proceed solely with a comparison of the elements of each crime as derived from their respective statutory provisions, i.e., we apply the same elements test.” Child endangerment can include possession of methamphetamine in a residence with a child but can also occur without any possession of any controlled substance, so its elements are not the same as possession. Denial of relief without an evidentiary hearing affirmed.  
Candice R. Gillam, Appellant, vs. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED109711 

Speculation Insufficient  
A trial 19 months after arrest is presumptively prejudicial, and movant asserted “early and often” his right to a speedy trial, but alleged prejudice only in conclusory terms that did not support relief. As to movant’s allegations of trial counsel misadvice, causing movant to forego testifying, movant’s allegations of prejudice consisted of mere speculation “because it did not show why the jury would have found the movant more credible than the State’s witness.” No relief is due based on trial counsel’s failure to call witnesses who offered no viable defense. Denial of relief without an evidentiary hearing affirmed.  
Leroy W. Coleman, Jr., Appellant, vs. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED109394

Real Estate

Tax Sale Costs Discussed  
In an action to redeem property sold at a tax sale, the elements include payment of the tax sale’s “reasonable and customary” costs, which may include attorney fees for a title search and other statutory compliance. A petition describing the amounts paid stated a claim for relief. The collector must review, and may demand detailed proof of, those costs. Until the Collector fails to pay those costs as judicially determined, a claim against the Collector’s surety is premature, so that claim is subject to dismissal without prejudice.    
Missouri Bond Company, LLC, Appellant, vs. Mark R. Devore, et al., Respondents.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED109475 

Workers’ Compensation

Duty of a Safe Workplace Was Non-Delegable  
Workers' compensation statutes provide the remedy to workers for injuries resulting from a breach in the employer’s duty to provide a safe workplace. The remedy is exclusive, and the duty is non-delegable to a co-worker, so a co-worker is not liable for any such breach. A co-worker is liable only for a breach of a duty separate from providing a safe workplace. A safe workplace includes transportation of cargo so injuries, attributable to improperly securing such cargo, were attributed to the employer, not the co-worker supervising such transportation. Circuit court did not err in dismissing a petition, seeking damages for common law negligence from the co-worker,  for failure to state a claim on which the circuit court could grant relief.  
Barbara Miller, as Guardian of Jamela Perry, Sister of Deceased, James Quinn, Appellant, vs. Fred Bucy and Kasey Baker, Respondents.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED107055

Commission Determined Weight, Not Credibility  
The Labor and Industrial “Commission may disbelieve uncontradicted and unimpeached testimony.” The Commission’s determination that uncontradicted and unimpeached testimony was “vaguely worded” and “fall[s] short of establishing” an element of appellant’s claim “is not a credibility determination to which [appellate courts] defer, but is instead an assessment of the substantive weight of the expert witnesses’ testimony, which must be supported by substantial evidence.” Substantial evidence therefore supported appellant’s claim as to that element, and the Commission must make findings of fact on the rest of appellant’s claim, including all injuries statutorily qualified for consideration, as determined by case law issued after the Commission’s decision.    
James Swafford vs. Treasurer of Missouri as Custodian of Second Injury Fund  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84562