Case summaries for Feb. 26 - Mar. 5, 2021

Administrative | Civil | Criminal | Employment | Insurance | Personal Injury | Post-Conviction | Real Estate | Tax

Administrative

Procedure to Vacate Roadways Explained
Statute, governing the procedure by which a county commission may vacate a road, conditions the commission’s jurisdiction on notice specific to a quarterly term; notice was short by three days. Commission decision occurs through non-contested case procedure which does not include making a record. That decision is subject to de novo review in circuit court, where a party without the burden of proof can prevail without presenting proof, so circuit court did not err in denying claims for declaratory and injunctive relief when unconvinced of harm to relators. The judgment of the circuit court is subject to review in the Court of Appeals on the record made in circuit court.
RONALD G. WONDEL, NORMA J. WONDEL, and BETTIE J. HUNNIUS, Petitioners-Appellants/Cross-Respondents and JAMES BROCK CHARTER IV and STEPHANIE CONNELL, Intervenors/Third Party Plaintiffs-Appellants/Cross-Respondents vs. CAMDEN COUNTY COMMISSION and GREG HASTY, BEVERLY THOMAS, DON WILLIAMS, Respondents/Defendants-Respondents/Cross-Appellants and CLARK DEVELOPMENT COMPANY, INC. and ELLIS CLARK, TRUSTEE, Respondents/Defendants-Respondents/Cross-Appellants and THOMAS J. TANNER, Respondent/Defendant-Respondent
Missouri Court of Appeals, Southern District - SD35323, SD35324, SD35337, SD35338

Civil

Evidentiary Facts Distinguished from Material Facts
Employee’s concealment and alteration of matters subject to discovery supported the circuit court’s order barring appellant’s use of those matters in evidence. Employer’s statement of their intentions to draft an incentive plan for employee did not constitute an offer, and employee showed no evidence of bargained-for consideration, so circuit court did not err in finding against employee’s contract claims. On employer’s motion for summary judgment as to employee’s fraud claims, employer established only material facts, which “rarely works in summary judgment where courts are not factfinders, cannot weigh evidence, and must view inferences against the movant.” Employee raised genuine disputes as to employer’s facts by affidavit and citation to employer’s discovery responses. Circuit court erred in granting the motion, so the Court of Appeals reverses and remands. 
TOMMY MORPHIS, Appellant vs. BASS PRO GROUP, LLC, TRACKER MARINE, LLC and KEN BURROUGHS, Respondents
Missouri Court of Appeals, Southern District - SD36307

Criminal

Motion for New Trial Based on Actual Innocence Dismissed
The “circuit court had no authority to sustain” the circuit attorney’s motion seeking new trial for defendant sentenced 24 years ago. Defendant had no standing to file, so an appellate court had no authority to hear, an appeal from circuit court’s judgment dismissing the motion. Appeal dismissed.
State of Missouri, Respondent, vs. Lamar Johnson, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98303

Instructions on Multiple Indistinguishable Acts Okay
Defendant abandoned claims, that internal inconsistencies of complaining witnesses’ testimony rendered such testimony insufficient to support convictions, by targeting no offense and no element of any offense. On charges of multiple acts, instructions protect defendant’s right to a unanimous verdict by specifically distinguishing any act alleged in the charging instrument, and requiring unanimity on any such act, either submitting one or allowing the jury to choose from more than one submitted. When multiple acts are factually indistinguishable, no threat to jury unanimity arises; so evidence, that one type of sexual conduct occurred repeatedly, did not make a multiple acts case and submitting instructions distinguishing acts by date and place only was not plain error. Defendant failed to show any plain error in sentencing as a persistent offender because the sentence was within the range authorized without persistent offender status.
State of Missouri, Respondent, v. Jamel Jones, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108656

Waiver Was Knowing, Intelligent, and Voluntary
To understand Miranda rights does not require understanding all possible consequences waiving those rights, and testimony supported a finding of such waiver, though defendant was unintelligible in audio recording. Intoxication does not necessarily negate waiver, and no evidence showed that defendant was intoxicated when making the waiver, or that such intoxication was involuntary.  Even without such waiver, other evidence of guilt was overwhelming.
State of Missouri, Respondent, v. Joshua Watkins, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108566

Conviction Affirmed for Tampering with a Prosecutor
Statutes on threatening a judicial officer require a specific intent, meaning a desire and not merely a possible result, “to harass, intimidate or influence a judicial officer in the performance of such officer's official duties [.]” That may occur through a third person. Defendant repeatedly described his intent to kill a prosecutor to a third person, who was within the hearing of a fourth person on a 911 call, and that description eventually reached the prosecutor through police. A jury could have found that defendant intended that result. 
State of Missouri vs. Richard McNabb
(Overview Summary)
Missouri Court of Appeals, Western District - WD83494

Exigent Circumstances Supported Warrantless Samples
Exigencies making a warrantless search for DNA reasonable included “imminent destruction of evidence” despite the intrusive nature of the search when the evidence was perishable, the amount of evidence was small, and destruction could have been merely accidental.
State of Missouri vs. Godfrey K. Kirui
(Overview Summary)
Missouri Court of Appeals, Western District - WD83384

Employment

No Contact with Corporate Customer Means No Contact with Corporate Employees
“Customer contacts are a protectable commodity because goodwill develops between the customers and the employer through its employees whose job it is to meet and converse with the customer while representing the employer.” Injunction, barring appellant from contacting customers of former employer, necessarily barred any communication with employees of corporations that were former employer’s customers. Undisputed evidence supported a finding of willful conduct, which supported a judgment of contempt, which supported an award of attorney fees and a compensatory fine. Fine may include the amount of damages to former employer but no evidence showed amount of damages. Remanded to determine liability for a compensatory fine.
Chemline Incorporated, Respondent, v. Timothy Mauzy, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108603

Insurance

Termination of Interest’s Accrual Explained
Automobile policy covered pre-judgment interest accruing until insurer made an unconditional offer to pay, which does not include an offer of settlement or compromise in exchange for a release of further liability, so insurer’s offer of settlement did not halt pre-judgment interest. Damages in a wrongful death action are for personal injury only, not property damage, so payment of policy limits for personal injury ended the accrual of post-judgment interest. Appellant did not show any court costs for which respondent failed to pay.
Sylvia Norman vs. Progressive Preferred Insurance Company, Amber Ralston
(Overview Summary)
Missouri Court of Appeals, Western District - WD83345 and WD83378

Personal Injury

Punitive Damages, Standard, and Evidence Discussed
Appellants’ objection at trial by general reference to a pre-trial motion in limine, of which appellants filed several, did not preserve an objection to a witness’s qualifications as an expert. That objection was also untimely when made after the expert had already rendered an opinion. Appellants showed no prejudice from a reference in voir dire to the compensation paid an expert not called at trial, and stating “renew my objection” did not preserve an objection to a reading from expert’s deposition. Evidence of decedent’s anticipated life span, but for appellant’s negligence, is not necessary to establish causation. Appellant preserved the issue of a submissible case on aggravating circumstances, in the form of indifference to decedent, by filing of a motion for judgment notwithstanding the verdict after filing a directed verdict. Respondents made a submissible case that the results of appellant’s malpractice in surgery included tests advised by medical colleagues but not done, which aggravated respondent’s earlier malpractice in exaggerating the treatments necessary for decedent’s condition, making a submissible case for punitive damages. The approved instruction on punitive language uses words different from, but not in conflict with, the statute on punitive damages.
John Henry Rhoden and Dorothy Jean Winfield, Respondents, vs. Missouri Delta Medical Center, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98327

Post-Conviction

No Prejudice Shown from Sentencing Without Jury
A finding that the absence of an objection had a sound strategic purpose does not require trial counsel’s testimony. Movant failed to show prejudice from the absence of an objection to sentencing as a prior offender, when sentencing was within the range authorized without prior offender status, even when such sentencing would have involved a jury. State’s rebuttal argument in closing directly addressed the defense’s argument against complaining witness’s credibility, so trial counsel’s objection would not have been meritorious, and no prejudice resulted.
Buddy Wickizer vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83078

Real Estate

No Reformation of Deeds for Successors
Petitioner alleged an agreement pre-dating grantor’s deeds. Earlier deed conveyed land from grantor to defendant. Later deed conveyed adjoining land from grantor to petitioner. Petitioner sought reformation of the earlier deed. Review of summary judgment is de novo and Court of Appeals will affirm a judgment on any theory with support in the record. Reformation of a deed is available only for parties to the original deed, so Court of Appeals affirms judgment denying reformation.  
Mark Rowland and Brenda Rowland vs. Keith A. Quevreaux, Trustee of the Keith A. Quevreaux Revocable Trust U/T/A dated July 23, 2012
(Overview Summary)
Missouri Court of Appeals, Western District - WD83877

Tax

Differing Aircraft Leases Have Different Tax Consequences
“Tax exemptions and exclusions ‘must be strictly construed against the taxpayer, and any doubt must be resolved in favor of application of the tax.’” Use tax is due on the use or storage of property bought out of State, subject to exemptions provided for sales tax, which include purchases for resale. Resale includes leases of aircraft, even an aircraft subject to multiple simultaneous non-exclusive leases, if the aircraft is subject to a lessee’s control. Control means operation, storage, and maintenance. One of respondent’s lessees had control only during a flight, so its lease did not qualify for the resale exemption, and the use or storage of an aircraft was subject to use tax. The other of respondent’s lessees had such control, so no use tax was due on the use or storage of an aircraft leased under those terms. Remanded to the Administrative Hearing Commission to determine the amount of tax due.
APLUX, LLC, and Paul & Ann Lux Associates, L.P., Respondents, vs. Director of Revenue, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98409

Refunds Due in Part Under Hancock Amendment
Missouri Constitution freezes taxes at a date certain, except as voters otherwise approve, subject to specified adjustments. The levy is the tax rate and revenue is the amount collected. The Missouri Constitution caps revenue at the previous year’s actual amount while implementing statutes cap revenue at the previous year’s allowable maximum. Respondent’s revised levy complied with neither because a decrease in property values does not support a rate increase. Taxes voluntarily, though mistakenly, paid are not subject to refund without statutory authority. Statutory procedure for refund of taxes requires a taxpayer to file first with the prosecuting attorney and, if the prosecuting attorney files no action in circuit court, vests the right to sue in the taxpayer. Taxpayer’s action for injunctive relief is a condition for a refund. Missouri Constitution’s provision for declaratory relief on tax rates provides standing, but not refunds, for any taxpayer. Statutes provide refunds for appellants, but not for a class of taxpayers like appellants. Remanded to determine attorney fees in circuit court.
Larry D. Blankenship, Appellant, v. Franklin County Collector, et al, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108824