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Case summaries for Feb. 28 - Mar. 5


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.

Administrative | Appellate | Criminal | Employment | Evidence | Family | Real Estate | Workers' Compensation


Bidder Must Exhaust Procurement Protest Procedure
Statutes authorizing the Commissioner of Administration to make regulations governing State purchasing include procedural regulations for administrative remedies. Courts apply those regulations unless unauthorized by, or contrary to, statutes. Statutes and regulations governing State procurement provide a preference for the goods and services of a sheltered workshop, but that does not include a mere “pass-through” arrangement for “just any business touching the not-for-profit corporation that operates” a sheltered workshop. On denial of appellant’s bid, a regulation limited administrative review to issues raised in appellant’s protest, and that remedy was adequate, so failure to exhaust it was cause for circuit court to dismiss claims not raised until judicial review. The futility exception, to the requirement of exhausting administrative remedies, applies when an agency lacks either authority or ability to provide a remedy.
Tri-County Counseling Services, Inc, et al. vs. Office of Administration, et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD82751


Judgment Not Final
Court of Appeals has jurisdiction over a judgment that is final, meaning dispositive of all claims against all parties. That includes parties yet to receive service. Circuit court’s ruling disposing of some but less than all claims and parties is not within Court of Appeals’ jurisdiction, so Court of Appeals dismisses it.
Duane Schreiman; Daniel Barkho vs. Douglas Ready
(Overview Summary)
Missouri Court of Appeals, Western District - WD83025

No Appeal from Denial of Defendant’s Dispositive Motion
Rules of civil procedure provide for summary judgment, but rules of criminal procedure do not. And denial of summary judgment is not subject to appeal. Appeal is available from a final judgment in a criminal action, which includes a pre-trial preclusive order granting a motion to dismiss charges, but not an order denying a motion to dismiss charges.
State of Missouri vs. Steven Wayne Cooper
(Overview Summary)
Missouri Court of Appeals, Western District - WD82674


One Shot, Three Assaults
Convictions for three counts of assault second degree and three counts of armed criminal action had support in evidence that appellant fired one gunshot into one vehicle carrying three persons because appellant “was aware of the high likelihood of hitting multiple targets.” Jurors’ signature on one wrong verdict form for armed criminal action does not change that result. Court of Appeals directs circuit court to correct judgment on degree of assault from first to second by order nunc pro tunc.
State of Missouri, Respondent, v. Brian K. Garrett, Jr., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED106966

Propensity Evidence Discussed
Any inconsistency in witness’s descriptions of events charged in separate counts went to credibility of witness and did not constitute evidence of multiple acts as to any count. And if witness was describing separate incidents in any one count, the incidents were indistinguishable to the witness and to the jury on the evidence on such count. Therefore, the verdict director did not deny defendant the right to a unanimous verdict on any count, and no plain error occurred. Open and obvious error occurred on the entry of propensity evidence as described in the Missouri Constitution, consisting of uncharged but similar offenses probative of the “even more” “disturbing” offenses charged, without enough protections against unfair prejudice. But no manifest injustice or miscarriage of justice occurred when other unchallenged evidence overwhelmingly showed defendant’s guilt.
State of Missouri vs. Robert L. Brown
(Overview Summary)
Missouri Court of Appeals, Western District - WD81873

No Support for Defense of Property Instruction
Statutes allow the use of force in defending property from tampering, but appellant offered no evidence showing that victim even attempted to tamper with appellant’s property, so circuit court did not err in refusing appellant’s proffered instruction on defense of property.
Missouri Court of Appeals, Southern District - SD35763


Long-Arm Statute Reaches Defendant with Sufficient Missouri Contacts
Long-arm statute provides jurisdiction over out-of-state defendants who commit a tort in Missouri, including retaliatory discharge, and reaches as far as allowed with due process. Due process requires minimum contacts between defendant and Missouri, which plaintiff showed with evidence that a Missouri defendant owned out-of-state defendant, which employed Missouri residents to sell products in Missouri, under an agreement expressly subject to the laws of Missouri, and used Missouri as out-of-state defendant’s address. By those actions, out-of-state defendant “purposefully availed itself of the privilege of conducting activities within Missouri so as to establish minimum contacts within the State to satisfy due process.” Missouri defendant used documents that supported a finding that Missouri defendant was a joint employer of plaintiff under Kansas law. Kansas law provides a claim for retaliatory discharge and plaintiff presented substantial evidence on that claim’s elements of a reasonably prudent person’s belief that a violation of law occurred, Missouri defendant participated in plaintiff’ firing for reporting the violation, and that the firing was in retaliation for reporting the violation; and that the given cause for firing was pretextual. Circuit court’s conclusion, that employers’ offer of a separation agreement to plaintiff did not constitute a settlement offer, was not an abuse of discretion because it did not purport to settle any dispute existing when offered. Circuit court did not err in excluding a document, purporting to show the real reason for termination, for failure to respond to discovery when the reason for termination was long at issue; and appellants preserved no error in that ruling, because employers did not offer it into evidence, and made no offer of proof. Rule provides that issues not pleaded but tried by consent are the same as pleaded issues, and evidence supported an award of front pay so, circuit court did not err in awarding front pay even though plaintiff did not plead it. Damages include both back pay and front pay, and evidence supported the amount of the award of front pay to retirement.
Christine Pitcher vs. Centene Corporation, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD82564


Expert’s Lobbying Relevant
Statute governing the foundation for expert evidence includes reliability, which means rational grounds greater than speculation, but does not require extensive reporting in professional literature. The expert’s “testimony was a permissible extrapolation of medical principles sufficient to meet the expert reliability standard, as an expert is not required to have done independent research on the subject and may ‘draw a conclusion from a set of observations based on extensive and specialized experience.’” Learned writings are admissible on a foundation including timing—whether the writing reflects the standards in effect during the relevant events—and whether the writing is authoritative. Impeachment of an expert is wide in scope, and information that “might” show bias is always relevant, so circuit court erred in excluding evidence on expert’s lobbying efforts in medical malpractice law. On a motion for new trial arguing the weight of the evidence, circuit court’s denial is not subject to appeal, because that argument only “goes to matters of evidentiary weight properly decided by a jury.” Appellant’s brief explains "substantially deficient” points relied on, so appellate review is possible.
Amy Revis, Appellant, vs. Donald Bassman, M.D., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107663


Credibility Determined Grandparent Visitation
Statutes provide that the elements of a claim for grandparent visitation include surviving parent’s unreasonable denial of visitation by grandparent for 90 days. The 90 days counts backward from the entry of an order granting grandparent visitation, not from the filing of a petition. That denials were unreasonable had support in evidence that circuit court was free to characterize as pretextual. When arguing that a ruling is against the weight of the evidence, appellant cannot ignore unfavorable evidence, because doing so robs appellant’s argument of analytical value.
TIMOTHY J. BALDON, Petitioner-Respondent v. AMANDA E. BALDON, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD36210

Real Estate

Habitability No Defense in Unlawful Detainer
In an action for unlawful detainer, statutes do not categorically bar affirmative defenses and counterclaims. But the only issue is the right to immediate possession of property, to which the property’s habitability is not relevant, so circuit court did not err in dismissing appellant’s affirmative defenses and counterclaims for breach of a warranty of habitability. “[C]laims beyond those relevant to the unlawful detainer action may be brought in a separate action.”
I-70 Mobile City, Inc. vs. Deidre Cartwright
(Overview Summary)
Missouri Court of Appeals, Western District - WD82790

Exclusive and Continuous Possession Shown
The elements of adverse possession include possession that is exclusive and continuous. The “exclusive” element means possessing the land “for itself, and not for others” to the exclusion of the true owner, though “sporadic use, temporary presence, or permissive visits by others, including the record owner,” do not defeat that showing. Respondents showed exclusive possession by evidence of maintenance of, and ingress and egress through, disputed land without permission. The “continuous” element means occupying or using the land for ten years, though “[t]emporary absences without an intent to abandon will not break continuity.” The ten years may include predecessors’ possession.
A2 Creative Group, LLC vs. Soheil K. Anderson
(Overview Summary)
Missouri Court of Appeals, Western District - WD82454

Workers’ Compensation

Amendments Effective 2014 Govern Permanent Disability, Total or Partial
The Missouri Supreme Court has ruled that 2014 statutory amendments determine whether any claim for permanent disability is subject to compensation from the Second Injury Fund—including any claim based on a subsequent compensable injury—Court of Appeals rulings to the contrary notwithstanding. Court of Appeals can modify an award of the Labor and Industrial Relations Commission, but the Commission did not make findings of fact on determinative issues under the relevant standard, including the cause of subsequent compensable injury. Therefore, Court of Appeals remands to the Commission.
Thomas Dubuc vs. Treasurer of the State of Missouri-Custodian of the Second Injury Fund
(Overview Summary)
Missouri Court of Appeals, Western District - WD82809