Case summaries for Feb. 25 - March 3, 2022

Appellate | Civil | Criminal | Employment | Post-Conviction | Workers' Compensation

Appellate

Release Mooted Appeal   
Appellant sought relief from the conditions of appellant’s confinement, the circuit court ruled against appellant, and appellant appealed. Pending appeal, and before argument and submission, appellant was released. Those facts moot the appeal, and nothing stops similar facts from evading future appellate review. Dismissed.   
Benjamin W. Wagner, Appellant, vs. Ann Precythe, et al., Respondents.   
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED109495

Civil

Medical Records Privileged from Discovery   
Statutes setting up a privilege against discovery function “at the expense of truth-seeking” and shield “evidence that is otherwise relevant and discoverable from the scope of discovery.” Plaintiff passenger alleged injuries, resulting from the crash of a golf cart, caused by defendant driver’s intoxicated operation. Plaintiff sought defendant’s physician/patient privileged medical records from the night of the crash to show intoxication. Denying intoxication does not waive that privilege because courts will not require the defendant to choose between admitting an allegation and waiving the privilege. The affirmative defenses of comparative fault and assumption of risk did not waive the privilege, because those affirmative defenses seek no damages from plaintiff, and so do not put defendant’s medical condition at issue; and because they are involuntary, in that defendant must raise them or waive them.  Preliminary writ in prohibition, barring discovery, made permanent.   
State ex rel. Kimberly Barks, Relator, vs. The Honorable Daniel Pelikan, Respondent.   
(Overview Summary)  
Supreme Court of Missouri - SC99024

No New Responses to Summary Judgment On Appeal 
“While we apply de novo review to summary judgment, it does not grant appellants a license to craft arguments free from the constraints of” rules governing summary judgment. On a motion for summary judgment, non-movant’s response failed to raise a genuine dispute as to material facts because the response either admitted such facts, or failed to cite any numbered paragraph in support of a genuine dispute. Appellant cannot show error in the judgment based on a finding of fact that was not the basis of the judgment. 
JOHNATHAN BOSWELL, Appellant vs. THOMAS J. O'NEIL, DWIGHT BETHUREM, AMIE BOSWELL DEWANE, JAMES B. BOSWELL, JOSEPH A. BOSWELL, and INDEPENDENT STAVE COMPANY, LLC, JOHN DOE(S), and JANE DOE(S), Respondents
Missouri Court of Appeals, Southern District - SD37077

Criminal

Attack Implies Intent  
The elements of class B felony assault in the first degree include an attempt to cause serious bodily harm, which a fact-finder could infer from a video of appellant hitting and kicking victim about 30 times. Plain error review of an officer’s opinion on the potential results of such an attack denied.  
STATE OF MISSOURI, Respondent vs. CORNELIUS PERKINS, Appellant  
Missouri Court of Appeals, Southern District - SD37121

Employment

Petition Did Not Allege a Continuing Violation   
In an action before the Human Rights Commission, statutes “clearly and repeatedly” condition the Human Rights Commission’s authority on timely filing of a complaint. In circuit court, a continuing violation may extend the time for filing, but appellant’s petition did not allege a continuing violation, because it merely incorporated the complaint form. “[C]hecking the ‘Continuing Action’ box and identifying the date of the discrimination as ‘Dec. 2015 to Present’ are ... conclusory allegations of fact and legal conclusions, which are not considered in deciding whether a petition states a claim upon which relief can be granted.” And smaller paychecks do not constitute a continuing violation; they constitute repeated results of one violation, which is the pay cut. Also, even if Missouri recognizes a claim for disparate impact, appellant’s petition did not describe such a claim. Dismissal affirmed.   
Amanda Gill, Appellant, v. City of St. Peters, Respondent.   
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED109658

Post-Conviction

Premature Filing Does Not Cure Late Filing 
“Movant bears the burden of pleading and proving by a preponderance of the evidence that the [initial] motion was timely filed” or showing an exception to the timely filing requirement. Exceptions do not include an earlier motion filed prematurely, but dismissed, some years before at movant’s request. Such a dismissal constitutes a voluntary dismissal, nullifying the earlier motion as if it never happened, and any error in dismissing the earlier motion was invited error. Because movant filed the later motion out of time, and the earlier motion constitutes no exception, the Court of Appeals remands only for dismissal of the later motion.  
CARL LEE JACKSON, Appellant vs. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals, Southern District - SD36953

Workers’ Compensation

Supervisor’s Liability Barred   
Employer’s nondelegable duty of workplace safety includes a co-employee execution of assigned duties, even negligently, because  statutes immunize co-employees for all conduct except that intended to increase employee’s risk. That exception did not apply to supervisor’s neglect of safety standards. In plaintiff’s action against supervisor, for negligence, summary judgment affirmed.   
Charles John Bestgen vs. Gene Haile, et al.   
(Overview Summary)  
Missouri Court of Appeals, Western District - WD83865