Case summaries for Feb. 23 - Feb. 29, 2024

ADR | Appellate | Civil | Criminal | DWI | Family | Juvenile | Post-Conviction

ADR

Federal Arbitration Act pre-empts Missouri Uniform Arbitration Act 
The parties’ contract included a choice-of-law clause under which the law for resolving disputes was that of Missouri. The Missouri Uniform Arbitration Act required the parties’ contract to include notice, in specified words and typeface, that the contract includes a binding and enforceable arbitration provision. The contract lacked that notice. But the contract provided for a transaction in interstate commerce, which made arbitration of disputes over the transaction exclusively subject to the Federal Arbitration Act. The Federal Arbitration Act’s purpose was to enforce arbitration agreements, so the lack of notice required by the Missouri Uniform Arbitration Act was no defense to a motion to compel arbitration. 
(Overview Summary) 
McCann Concrete Products, Inc., Respondent, v. Raineri Construction, LLC, Appellant. 
Missouri Court of Appeals, Eastern District - ED111680

Appellate

Issues unpreserved or moot 
Appellant sought review of the judgment in an action for dissolution of marriage. An issue first raised in a motion for new trial, and never called up or ruled on, is not preserved for appeal. Matters outside the record showed that children had aged out of the statutory requirement for a parenting plan, which mooted any challenge to the circuit court’s parenting plan. 
(Overview Summary) 
Jeffrey A. Greene, Respondent, v. Melissa A. Greene, Appellant. 
Missouri Court of Appeals, Eastern District - ED111742

Civil

Medical records discovery prohibited 
Grounds for a writ of prohibition included blocking enforcement of an order to respond to discovery of matters protected by privilege. Privileged matters included information communicated within the physician/patient relationship, but a party could waive the privilege by conduct “showing a clear, unequivocal purpose to divulge the confidential information.” That could occur when a party voluntarily put at issue their own medical condition. The medical condition of defendant was at issue in the pleadings, but only by plaintiff’s petition, not any responsive pleading of defendant. Defendant did not waive the privilege by answering plaintiff’s questions in a deposition because a deposition is not voluntary disclosure. And voluntary disclosure does not waive the privilege in “general discussions with friends or family.” The Court of Appeals makes its preliminary writ, barring the circuit court from compelling compliance with a document production request, permanent. But the Court of Appeals expressly does not bar discovery of the information by other means. 
(Overview Summary) 
Christina Lynn Goldstein, MD, Et al. vs. The Honorable Kevin Crane, Judge of the Circuit Court of Boone County, Missouri, Division Three 
Missouri Court of Appeals, Western District - WD86587

Calculations of time to file explained 
In an action under the Missouri Human Rights Act, the Act required the filing of a petition in circuit court within 90 days from the issuance of a right-to-sue letter. Statute and rule provided that any time limitation excluded the day that started the time running and included the last day. Plaintiff filed her action within that time. The Court of Appeals reverses the judgment dismissing plaintiff’s petition and remands for further proceedings. 
(Overview Summary) 
Nacha Rene vs. Royal City Bell, LLC, Et al. 
Missouri Court of Appeals, Western District - WD86294

Criminal

Delay calculated in speedy trial claim 
In determining whether defendant has experienced a violation of defendant’s right to a speedy trial, the threshold issue is the length of delay, for which eight months is presumptively prejudicial and less than eight months conclusively not prejudicial. Delays occasioned by defendant, and any interval between dismissal and re-filing, do not count. Thus calculated, defendant’s delay was less than eight months, so the circuit court did not err in denying defendant’s motion to dismiss for lack of a speedy trial. An objection to questioning, raised only after answered and not renewed on resumption of the questioning, preserves no error. When the State inquired as to defendant’s past convictions, no error occurred, so the Court of Appeals declines plain error review. “In literary terms who, what, when and where are in order but why and how are not.” 
(Overview Summary) 
State of Missouri vs. Amadeo D. Gwin 
Missouri Court of Appeals, Western District – WD86048

Trespass conviction affirmed without testimony of all residents 
On a charge of trespass in the first degree by entering a residence without permission, the State offered testimony from one resident that defendant had no permission to enter. The other resident did not testify. But even if the other resident had testified that defendant had permission, an appellate court would disregard that evidence “as contrary to the trial court’s judgment.” Also, the State presented evidence that defendant removed a security camera from the residence, which implies defendant’s guilty mental state. 
STATE OF MISSOURI, Plaintiff-Respondent vs. TIMOTHY WAYNE HOVIS, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD37942

No deferring restitution amount 
In a criminal action, the circuit court exhausted its authority on pronouncement of final judgment, which consisted of “the plea, the verdict or findings, and the adjudication and sentence.” A sentence could, but was not required to, include restitution. Restitution was due only when an amount was set. Therefore, when the circuit court pronounced judgment including restitution, but deferred the amount, the circuit court exhausted its authority; and its later order setting the amount of restitution was made without authority. An unauthorized order was subject to review by an appellate court because “[a]ppellate courts inherently have supervisory authority to confine a trial court to its [authority.]” Reversed and remanded to vacate the unauthorized order. 
STATE OF MISSOURI, Plaintiff-Respondent v. CALLIE MARIE FLOOD, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD38020

Adequate provocation and sudden passion discussed 
The circuit court did not abuse its discretion in admitting a video recording that showed defendant rearming to his home at night within a three-day window that included the date night of the crime. The circuit court did not abuse its discretion in excluding an investigator’s report that contained hearsay and assumed facts not in evidence. Defendant did not show any relevance in how many tests an investigator conducted. The elements of voluntary manslaughter of second-degree murder with sudden passion included adequate provocation or sudden passion, which defendant had the burden of raising. Because the record had no evidence to suggest either adequate provocation or sudden passion, the circuit court did not err in refusing to submit verdict directors for voluntary manslaughter of second-degree murder with sudden passion. On a charge of felony tampering with physical evidence the State showed that defendant set fire to the crime scene, damaging the murder weapon and limiting the amount of testing that the State could perform on it, which supported a finding of guilt. 
STATE OF MISSOURI, Respondent v. PAVEL SAMSINAK, Appellant 
Missouri Court of Appeals, Southern District – SD37559

No double jeopardy in superseding indictment 
A later indictment added alternative charges to the earlier indictment. Appellant raised double jeopardy for the first time on appeal so only plain error review was possible. Constitutional provisions bar double jeopardy. Statute provides that jeopardy attaches, and dismissal of an indictment is with prejudice, once the circuit court empanels the jury. After the circuit court empaneled the jury, the State dismissed the earlier indictment. But the statutes also provide that a later indictment supersedes an earlier indictment on the same matter. Therefore, the later indictment suspended the earlier indictment as a matter of law, and the dismissal of the earlier indictment “was little more than a housekeeping matter [,]” which could have happened even after sentencing. 
(Overview Summary) 
State of Missouri, Respondent, v. Clarence Battle, Appellant. 
Missouri Court of Appeals, Eastern District - ED111337

DWI

Circumstantial evidence showed operation of motor vehicle 
For a conviction to stand on appeal did not require the State “to disprove every possible theory under which a defendant could be innocent, but instead [to] present sufficient evidence from which a trier of fact could find the defendant guilty beyond a reasonable doubt.” That could happen entirely on circumstantial evidence. A motor vehicle may be operated by an intoxicated person as evidenced by unconscious defendant sitting at the wheel, with the motor running and the transmission in park in the middle of an intersection, for two hours. Keyless ignition does not negate operation. Multiple indicia supported a finding of intoxication. The State’s closing argument, appealing to protecting “our children [,]” did not constitute improper personalization. And defendant did not show that the brief isolated reference was outcome-determinative, so no plain error occurred when the circuit court failed to intervene sua sponte. 
(Overview Summary) 
State of Missouri, Respondent, vs. Clifford D. Parrish, Defendant/Appellant.
Missouri Court of Appeals, Eastern District - ED111607

Family

Substitute for marriage not shown 
Maintenance could be decretal: determined by the circuit court’s judgment and enforced like any other judgment; or contractual: by the parties’ contract not incorporated into the judgment and enforced by an action in contract; or a separation agreement decretal maintenance: contracted and incorporated into the judgment. “This hybrid is decretal for purposes of enforcement and contractual for purposes of modification.” That describes the parties’ maintenance provisions. Statutes allowed the parties to make a separation agreement providing that maintenance was non-modifiable, even by circuit court, and incorporating such a provision into a judgment barred the circuit from modifying maintenance. Maintenance on such a judgment terminated only on death or remarriage of the receiving party, or the receiving party’s equivalent of re-marriage. Equivalent of re-marriage refers to a degree of permanence, financial support, and holding out as “man and wife.” On those matters, the record supported the circuit court’s rulings: that the relationship did not afford respondent the protections of marriage, respondent and respondent’s partner were respectively economically self-sustaining, and that the relationship was not the equivalent of re-marriage. The circuit court did not err in denying appellant’s motion to terminate maintenance. Appellant showed no authority to procure discovery of records from non-parties and no prejudice from the denial of such discovery. The circuit court did not abuse its discretion in ordering appellant to pay a portion of respondent’s attorney fees. 
(Overview Summary)
Kristen L. Main, Respondent, vs. Donet C. Main, Appellant, and Ethan Main, Intervenor. 
Missouri Court of Appeals, Eastern District - ED111716

Juvenile

Certification for criminal trial affirmed 
Statutes provided factors for determining whether to dismiss a juvenile action and certify appellant for a criminal action. Such a judgment was subject to review for abuse of discretion considering the totality of the circumstances. The circumstances included ordinary mental development, prior referrals to the juvenile system of an increasingly serious nature, and insufficient time remaining for rehabilitation in the juvenile system; and serious alleged offenses involving gun violence, from which the community needs protection, with a child nearby. The absence of physical harm to victim did not negate those factors. 
In the Interest of: R.S., Appellant vs. DUNKLIN COUNTY JUVENILE OFFICE, Respondent 
Missouri Court of Appeals, Southern District – SD37723

Dismissal before disposition affirmed 
In an action for care and custody of juveniles, disposition was moot when circuit court dismissed the petition at the adjudication stage, so the dismissal constituted a final judgment subject to appeal. The basis of the dismissal was a finding that abuse and neglect had ceased, and that ruling had support in substantial evidence, evidence to the contrary notwithstanding. The ruling was also not against the weight of the evidence. A different result on adjudication of the facts relevant to a different sibling did not alter that result. 
(Overview Summary) 
In the Interest of: A.L.R. 
Missouri Court of Appeals, Eastern District - ED111658

Post-Conviction

Failure to investigate undermined confidence in verdict 
At issue in the movant’s criminal trial was the age of the victim at the time of the offense. Post-conviction relief was due if counsel’s substandard performance prejudiced movant. Such was the case when trial counsel failed to discover exculpatory documents—church attendance records and medical records—that “would have provided [movant] with a defense or changed the outcome of the trial.” Sound strategy was a defense, but strategic decisions could occur only after thorough investigation. Movant did not have to show an outcome-determinative lapse in performance, only a lapse that undermined confidence in the trial’s fairness, so sufficient evidence to convict did not bar relief. Judgment denying relief reversed. 
LARRY G. MCCONNELL, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District – SD37250