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Case summaries for Feb. 16 - Feb. 22, 2024


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.

Attorneys | ADR | Civil | Criminal | Employment Security | Evidence | Family | Personal Injury


Fee allocation affirmed
A circuit court was an expert on attorney fees, and its evaluation and allocation were presumptively correct. In an action for bad faith refusal to pay a separate underlying claim, the circuit court awarded attorneys’ fees to the attorneys who worked on the bad faith action but not the appellant attorneys, who worked on the underlying claim only. Quantum meruit entitled an attorney working on a contingent fee basis, and discharged before the contingency occurred, to the reasonable value of services rendered. The appellant attorneys’ client contracts only provided a contingency related to the underlying claim—a judgment—and no contingency related to the bad faith action. Appellants showed no substantial contribution to the judgment in the bad faith action; though judgment in the underlying claim was indispensable to the bad faith action, that did not show the value of any services related to the bad faith action.
(Overview Summary) 
Rose Briscoe, Jonathan Sternberg and William Bird vs. Law Office of Joseph A. Morrey and Presley & Presley, L.L.C.
Missouri Court of Appeals, Western District - WD85947


Arbitration agreement invalid
Arbitration was favored at law but, on a motion to compel arbitration, the movant had the burden of proof. On plaintiff’s entry into defendant’s place of amusement, the parties entered into a contract releasing defendant from liability for injuries to plaintiff. That release included an agreement to arbitrate. An agreement to arbitrate was a contract, so Missouri courts enforced an agreement to arbitrate according to Missouri contract law, of which the first principle was to determine and give effect to the parties’ intent. The parties’ intent as to the duration of the release was a single day because the release’s only reference to time was the signature date and the release set forth no period of duration. The release’s language showed that “a new signed release is required on each subsequent visit [,]” “its duration is limited to the date signed and of entry [,]” and applies “only as to any claims arising from activities on the date of the release.” Plaintiff’s injuries occurred at defendant’s facility on a later visit that was on a date later than the date of the release. The release, and its arbitration provisions, therefore, did not apply to plaintiff’s injuries. The circuit court did not err in denying the motion to compel arbitration. On a motion to compel arbitration, an order of denial is an interlocutory ruling but is subject to immediate appeal by statute.
PRESLEY KARLIN, Plaintiff-Respondent v. UATP SPRINGFIELD, LLC d/b/a URBAN AIR SPRINGFIELD, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37699


Summary judgment requires ultimate facts
Summary judgment is subject to de novo review because the only issue is whether affirmance of the judgment is compelled as a matter of law. Automobile liability insurance coverage for insured’s relative depended on the household in which the relative “resided” in, which made an ultimate fact of that matter. That matter was the subject of the parties’ motions for summary judgment on stipulated facts, but “[s]tipulated facts that may be relevant to resolving a contested ultimate fact do not render the ultimate fact a question of law.” Summary judgment was reversed and remanded for further proceedings.
(Overview Summary)
Shelter Mutual Insurance Company vs. Trevor Hill, Leslie Hill, Lanie Hill and Shelbie Alexander
Missouri Court of Appeals, Western District - WD85527


Nunc pro tunc restores parole
A circuit court’s spoken sentence prevailed over its sentence as written. The written sentence denied the possibility of parole, but that provision was not in the sentence as spoken. The Court of Appeals reversed the written judgment for correction by nunc pro tunc to conform the written sentence to the sentence as spoken: without denying the possibility of parole.
(Overview Summary)
State of Missouri vs. Tyrieke R. Robinson
Missouri Court of Appeals, Western District - WD85592

Gunshot through the forearm was a serious physical injury
The elements of first-degree assault included serious physical injury, and that a physical injury was serious if it “creates a substantial risk of death.” A substantial risk meant “less than a probability or even a likelihood” and equal to “a legitimate concern [.]” A legitimate concern that death would result arose when defendant shot victim “through-and-through” the forearm, as shown by evidence about dropping blood pressure and infection. Swift medical attention did not negate that concern. Statutes provide that the minimum sentence for armed criminal action with a weapon lawfully possessed is three years imprisonment, not five years as the parties and circuit court believed, so plain error occurred when the circuit court imposed sentence on a mistaken belief. The Court of Appeals reversed that conviction and remanded for re-sentencing.
(Overview Summary)
State of Missouri, Respondent, vs. Keith L. Johnson, Jr., Appellant.
Missouri Court of Appeals, Eastern District - ED111484

Plain error review requires proof and pleading of an outcome determinative error
To state a claim for plain error review requires: first, allegations of clear open and obvious error; and, second, allegations of resulting manifest injustice or miscarriage of justice. Only on such pleading may an appellate court decide the merits of a claim for plain error review. The State entered evidence of criminal charges pending in another jurisdiction, and such evidence of uncharged bad acts was presumptively prejudicial, but mere prejudice does not rise to the level of manifest injustice or miscarriage of justice. Manifest injustice or miscarriage of justice means outcome-determinative in context, which appellant did not plead or prove, so the Court of Appeals declines plain error review.
(Overview Summary) 
State of Missouri, Respondent, vs. Damathan L. Stevens, Appellant.
Missouri Court of Appeals, Eastern District - ED111230

First-degree assault conviction affirmed
On a charge of assault in the first degree by attempts to cause serious physical injury, the elements include a substantial step toward executing an intent to cause serious physical harm. Defendant argued that his intent was to protect a third person from victim. Victim sustained injuries to the head and face, including broken facial bones and gashes requiring 20 stitches, which supports an inference that defendant intended to harm victim and not merely to protect a third party. Conviction affirmed.
(Overview Summary)
State of Missouri, Respondent, vs. Alexander Harris, Appellant.
Missouri Court of Appeals, Eastern District - ED110963

Intent shown
For the offense of second-degree murder, the elements included conduct that caused serious physical injury “knowingly [,]” meaning awareness that such a result was practically certain. “A person is presumed to intend the natural and probable consequences of his acts, and ‘[t]he natural consequence of firing a handgun toward the victim is, at the very least, great bodily harm.’” Undisputed evidence showed that defendant pointed a loaded pistol at victim’s head and pulled the trigger. Evidence that defendant followed victim to the crime scene showed intent. Evidence that defendant fled afterward without rendering aid also show consciousness of guilt. Defendant’s testimony, that pulling the trigger was an accident, is contrary to the verdict so the Court of Appeals ignored it. No plain error occurred when the circuit court failed to sua sponte submit an instruction on involuntary manslaughter that defendant had not requested.
(Overview Summary)
State of Missouri, Respondent, v. Prinshun McClain, Appellant.
Missouri Court of Appeals, Eastern District - ED111322

Employment Security

Voluntary quit includes implied rejection
Statutes disqualified from benefits any person who voluntarily quit work, including rejecting available work, without good cause. On those matters, the findings of fact made by the Labor and Industrial Relations Commission had support in competent and substantial evidence as Commission determined it to be credible. An allegation of medical reasons for quitting must have support in expert evidence. Allegations of insufficient hours and insufficient COVID-19 protections had no support in any evidence that claimant tried to resolve those issues before quitting. “[G]ood cause does not ordinarily exist when a person gives up partial employment for none at all.”
(Overview Summary) 
Elisa Garland, Appellant, v. Division of Employment Security, Respondents.
Missouri Court of Appeals, Eastern District - ED111832


Invited error, no objection, review waived
On a challenge to the sufficiency of the evidence to support a criminal conviction, an appellate court takes as true all evidence and reasonable inferences supporting the conviction and ignores all contrary evidence and inferences. Evidence that defendant coerced victim into the trunk of her car by displaying a pistol supported a conviction for kidnapping in the first degree. The defense endorsed a specific answer to a jury inquiry, so any error was invited error, and waived plain error review. An affirmative statement of no objection waives all review including plain error. Evidence of uncharged drug use may show motive, like when defendant stated, “I do a lot of cocaine” and “owed some people some money [.]” When no approved instruction applies, a non-approved instruction is submissible, but reflect the statutes. The statutes required defendant’s sentences to run concurrently, so submitting an instruction providing otherwise would have been error, and the circuit court did not err in refusing such an instruction.
(Overview Summary)
State of Missouri vs. Xavier Blake Gee
Missouri Court of Appeals, Western District - WD85844


Termination of parental rights affirmed
In an action to terminate parental rights, the elements include a statutory ground for termination and a “finding that termination is in the child’s best interest [, which] is a subjective assessment based on the totality of the circumstances.” The circumstances relevant to both elements can be the same. The circuit court’s findings on the child’s best interest had support in evidence that appellant parent, not the State, prevented a relationship between parent and child. Such evidence included parent’s inability to care for herself and failure to attempt any relationship during three years of foster care. Reasonable efforts at reunification by the Division of Children’s Services are not a promise of visitation or reunification, and statutes bar returning a child to a parent who has sexually abused the child.
(Overview Summary)
In the Interest of: B.K.B.; Juvenile Officer vs. D.M.G.
Missouri Court of Appeals, Western District - WD86407

Personal Injury

Allegation of personal injury does not bar subrogation
For damages by fire, plaintiff insured received insurance proceeds, then filed an action for damages against a defendant tortfeasor. The insurer intervened to protect subrogation rights against defendant. The parties settled with defendant for an amount of damages but did not allocate the damages between plaintiff insured and insurer. The action alleged property damage and personal injury, and personal injury claims are not subject to subrogation, but the mere allegation of personal injury is insufficient to bar subrogation as to property damages paid from insurer to plaintiff insured. The circuit court did not err in awarding the insurer subrogation in the amount of the insurance proceeds and awarding only the excess of the damages to the plaintiff insured.
(Overview Summary) 
Michael Megown, et al., Appellants, v. Auto Club Family Ins. Co., Respondent.
Missouri Court of Appeals, Eastern District - ED111805