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Case summaries for Feb. 12 - 18, 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.

ADR | Juvenile | Personal Injury | Post-Conviction | Real Estate


Litigation Stayed Pending Arbitration
Appellant’s challenges are legal, not factual, so the Court of Appeals applies a different standard of review from that which appellant cites. “[A] party may contractually relinquish fundamental and due process rights [,]” including jury trial, through an arbitration provision. A contract involving parties and goods from different States is within interstate commerce, so that contract is subject to the Federal Arbitration Act, and the Missouri Uniform Arbitration Act’s notice requirement will not invalidate the contract. The enforceability of a contract’s arbitration provision depends on the whole contract. To prove the existence of a contract, the parties’ conduct may be sufficient, a signature is not indispensable, and whether a party performed is not relevant. “A party's failure to read or understand the terms of the contract is not a defense to enforcement of those terms [.]” Provisions expressly authorized by statute cannot, as a matter of law, be unconscionable.
David Holm vs. Menard, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83862


New Allegations in Motion to Modify Okay
Rule provides for transfer from juvenile division to general division on supporting allegations in a petition but, also, “motions to modify are often also used to provide a forum for an adjudication of the juvenile’s guilt of additional crimes occurring while the juvenile was under the court’s jurisdiction [,]” because juvenile actions address the juvenile, not merely the offense charged in the petition. That procedure resulted in no plain error. Objecting to that procedure would have been meritless, and deciding not to make that meritless objection did not show that trial counsel was ineffective.
In the Interest of: J.T.J.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108812

Personal Injury

Time -Limited Demand Statute Discussed
Statute governing time-limited demands sets forth the content required of a demand letter. Omission of first aid expenses from the demand letter, and omission of the amount demanded, waives the payment of those expenses.
American Family Mutual Insurance Company, S.I. vs. David Browning and Kyle Himmelberg
(Overview Summary)
Missouri Court of Appeals, Western District - WD83627

Challenges to Damage Limitations Statute Transferred
Statute caps awards for non-economic damage awards, and for “catastrophic personal injury,” at specific amounts. Appellant raised and preserved constitutional challenges to that statute. “[W]hether the legislature may constitutionally limit the damages recoverable on a cause of action which did exist at common law, but which has now been ‘replaced’ by a statutory cause of action [,]” raises real and substantial constitutional issues not addressed by the Supreme Courts of the United State or the State of Missouri. Therefore, the Court of Appeals transfers the case to the Supreme Court, which also carries with it all non-constitutional issues without rulings from the Court of Appeals.
Maria Del Carmen Ordinola Velazquez vs. Jennifer Reeves, M.D., et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83485, WD83490, WD83722 and WD83781

Defendant ad Litem Statute Discussed
In an action for wrongful death, statute allows the appointment of a defendant ad litem for decedent defendant, when only insurance is subject to collection. That statute does not provide for reducing a judgment to insurance limits. It also does not permit a determination of coverage, policy limits, or bad faith claims.   
Michael Scobee and Linda Scobee, Plaintiffs/Respondents, vs. Lauren Norris, as Defendant Ad Litem for William Norris, Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108712


General Mental Competence Distinguished from Legal Competence
Movant’s rational consultation with trial counsel negated the need to investigate movant’s competency to stand trial or plead guilty, which later events confirmed, notwithstanding trial counsel’s concerns about movant’s “general mental health.” Movant did not allege prejudice from plea counsel’s alleged misadvice, because movant did not allege that movant would have demanded a trial, and the record supports a finding that plea counsel fully advised movant of sentencing consequences of a guilty plea. The time to file the initial motion began with the filing of a transcript of hearings on the guilty plea and sentencing, and the motion to withdraw the guilty plea, so the initial motion and amended motion were timely filed. Retained counsel is not subject to inquiry for abandonment. Court of Appeals addresses only allegations made in the motion, and no allegations added on appeal. 
Richard V. Cooper vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82926

Rescission of Post-Conviction Counsel’s Appointment Was Not Abandonment
The right to post-conviction counsel comes from provisions of rules, not of constitutions, including appointment of counsel. Appointment of counsel requires movant to show indigency, failure to make that showing resulted in rescission of the appointment, and that rescission did not constitute abandonment. Having failed to allege facts on which a circuit court could base post-conviction relief, movant was not entitled to written findings of fact and conclusions of law.   
Kevin D. Posch, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108722

Real Estate

Lien Paid Before Distribution
In an action for partition, the circuit court ordered property “sold . . . subject to the lien of the mortgage[;]” and respondent rebutted the presumption of equal ownership shares with evidence that only respondent paid the mortgage, insurance, and taxes; so appellant showed no error in award of sale proceeds to respondent alone. .
DEBORAH J. MILLER, Plaintiff-Appellant v. GREGORY A. CULTON, SR, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD36711