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Case summaries for March 1 - March 7, 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.

ADR | Appellate | Attorneys | Civil | Criminal | Family | Health | Post-Conviction | Real Estate


Arbitration compelled in dissolution of marriage
A ruling on a motion to compel arbitration is subject to interlocutory appeal. When otherwise unexplained, a ruling is subject to review in accordance with the result reached and the parties’ arguments. “The terms of an antenuptial agreement . . . are binding unless the court finds the agreement unconscionable.” The Federal Arbitration Act applies to interstate commerce, which does not include the parties’ antenuptial agreement, so the Act’s requirement of a challenge to the arbitration provision distinct from any challenge to the agreement as a whole does not apply. Order denying a motion to compel arbitration reversed and remanded to determine conscionability.
(Overview Summary)
Richard P. Riney, Appellant, vs. Margaret M. Riney, Respondent.
Missouri Court of Appeals, Eastern District - ED111743


Order for accounting not a final judgment
Rule allowed circuit court to certify for appeal a ruling that disposed of at least one claim, but the certification is also subject to review. The circuit court granted an accounting and certified that ruling for appeal. “Critically, an appeal from [an order] granting the right to an accounting is not final for purposes of appeal” because the circuit court must also rule on the accounting. And other claims and defenses remain pending.
(Overview Summary)
Kevin Barnett and R.E. General Contracting, LLC, Respondents, vs. Jeffrey Forster, et al., Appellants.
Missouri Court of Appeals, Eastern District - ED111756


Summary judgment on malpractice claim affirmed
Respondent estate planner’s duty was to the client decedent and possibly to intended beneficiaries. But respondent had no duty to appellant “non-client prospective beneficiaries of the undrafted, unexecuted third amendment to the trust” that would have cut out other beneficiaries in appellants’ favor as, appellants alleged, the decedent client intended. Decedent’s intent was not the subject of any evidence in the summary judgment record to contradict the intention expressed in the trust, which negated causation and damages as well. Respondent’s summary judgment affirmed.
(Overview Summary)
Lara and Brian Fallon, Appellants, v. Mark Easley, Respondent.
Missouri Court of Appeals, Eastern District - ED111682


Summary judgment and dismissal distinguished
Circuit court entered summary judgment on a claim of Sunshine Law violations by partial disclosure, and a claim for declaratory judgment challenging the constitutionality of the grounds for partial disclosure, based on lack of standing. Rules provided that dismissal disposed of an action on procedural predicates to the action, like standing, without reaching the merits; and that summary judgment determined the merits of the action. If a motion for summary judgment addressed a procedural predicate like standing, the courts should have treated the motion as a motion to dismiss, with the remedy as dismissal. Dismissal was the remedy if the face of the petition failed to allege facts sufficient to show standing. Standing for a petitioner to bring an action for declaratory judgment requires “a pecuniary or personal interest directly at issue and subject to immediate or prospective consequential relief.” Standing for petitioner to bring an action under the Sunshine Law required that the petitioner was a “an aggrieved person, taxpayer to, or citizen of,” Missouri. “We note that [appellant] has improperly used his name interchangeably with [other entities] in this appeal as the appellant.” The Sunshine requester was a limited liability company, but the petition alleged aggrievement to only an unincorporated association. The amended petition alleged aggrievement to only the association’s “founder.” The second amended petition alleged that the founder was a Missouri resident only. A Missouri resident is not necessarily a Missouri citizen or taxpayer. Federal law is inapplicable. “When an appellant makes the entire judgment one error and lists multiple grounds therefor, the result is that the point contains multiple legal issues. Separate issues should be stated in separate points relied on.” But briefing errors did not hinder review so the Court of Appeals reverses the summary judgment and remands for entry of dismissal.
(Overview Summary)
The Sunshine and Government Accountability Project vs. Missouri House of Representatives Et Al.
Missouri Court of Appeals, Western District - WD86212

Default set aside for improper service
Statute provided that service on defendant limited liability company was by delivery to the company’s registered agent. The registered agent was an individual, personally, not the registered agent’s law firm. Plaintiff’s process server delivered process to the law firm’s office manager who neither had nor assumed authority to receive process. On the petition so delivered, defendant defaulted, but prevailed on a motion to set aside the default. Only then did plaintiff file a motion to amend the return of service, so that matter is not before the Court of Appeals. Judgment setting aside default affirmed.
CHAD HOOD, Plaintiff-Appellant v. HALE FIREWORKS, LLC, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD38064

No damages, no final judgment
Appeal was possible as rules provide, including judgments certified; and as statutes provided, including final judgments. A final judgment was a judgment that disposes of all parties as to all issues. Issues remained in an action for negligence under a default judgment that determined liability because the default judgment did not rule on damages. Therefore, the judgment was not final, and no certification existed, so no appeal was available. Appeal dismissed.
(Overview Summary)
Christopher Patterson, As Next Friend for Minor Child C.P. vs. Stephanie Roach, and Lakeview Terrace Property, LLC
Missouri Court of Appeals, Western District - WD86159

Forum election clause valid
The parties’ insurance contracts included a “clear, unambiguous forum selection clause freely agreed upon by the parties.” “Shall” meant a mandate, and not mere permission, to litigate any matter in the specified forum. Such a clause was valid prima facie, and any opponent had a “heavy” burden to show that enforcement was unfair, for which appellant offered neither evidence nor argument. Because the forum selection clause was valid and not unfair, the circuit court did not err in dismissing the petition. Because the judgment resolved all related claims as to all respondents, the circuit court did not err in certifying the judgment for appeal.
(Overview Summary)
Opioid Master Disbursement Trust II, a/k/a Opioid MDT II, Appellant, vs. Ace American Insurance, et al., Respondents.
Missouri Court of Appeals, Eastern District - ED111765


Civil detention supported inventory search
Statutes provided that a person who illegally possessed contraband substance was immune from prosecution if the illegal possession was discovered during treatment in response to a good faith request, but that defense is an affirmative defense, abandoned if not raised in circuit court. Stating no objection waives all review including plain error. “However, in the interest of assuring [defendant] he did not lose an otherwise meritorious point on a technicality, we review this issue ex gratia.” No plain error occurred when the circuit admitted evidence obtained during an inventory search of defendant as part of civil confinement due to detoxification. “[I]nventory searches of a person detained civilly . . . are proper under the Fourth Amendment just as they would be of a criminally arrested person who was to be jailed.”
(Overview Summary) 
State of Missouri vs. Brayon J. Williams
Missouri Court of Appeals, Western District - WD85840

Indictment moots preliminary hearing
The writ of mandamus issued if petitioner showed a clear, unequivocal, specific right. The right to a preliminary hearing in a criminal action is statutory, with a time limit from the filing of a complaint, and extensions only for good cause. Good cause was a subject for circuit court inquiry and likely did not include time for issuing summonses neglected while the State pursued an indictment. But the filing of an indictment mooted the preliminary hearing because no preliminary hearing was due on an indictment. The indictment did not constitute dual prosecution because statutes excluded the previously filed complaint. The exception for cases “capable of repetition, yet evading review” does not apply. The Supreme Court quashes its preliminary writ of mandamus.
(Overview Summary)
State ex rel. Lamar Lamont Woods, Gregory Ponray Crawford, Jessica Monique Jean Carter, Christopher Lamont Robbins, Tyrell Welch, Gennise Mackey, and Toron Mitchell, Relators, vs. The Honorable Catherine Dierker, Respondent.
Supreme Court of Missouri - SC100369

Instruction on defense of another required
Evidence showing that one party to a confrontation initiated a physical threat, including display of a weapon, is evidence that such party is the initial aggressor. Statutes provide that no one has any duty to retreat from any place where that person has the right to be, and neither hindsight nor any other person’s assessment is relevant. Defense of another was at issue as shown by the arguments, jury inquiry, and substantial evidence. Substantial evidence is evidence that tends to support a theory. That issue required the circuit court to submit sua sponte an instruction on defense of another, and the circuit court’s failure to do so constituted plain error. Plain error review is subject to waiver on a statement of “no objection” to proffered evidence but not to proffered instructions.
(Overview Summary)
State of Missouri, Respondent, vs. Cyrez Jones, Appellant.
Missouri Court of Appeals, Eastern District - ED111282

Purpose shown
The State charged defendant with attempted second-degree assault by use of a dangerous instrument against a special victim, a law enforcement officer in performance of that officer’s official duties, to cause physical injury. Of that offense, the elements include purpose, which means a “conscious object to engage in that conduct or to cause that result [,]” also called a specific intent. Specific intent is subject to inferences from circumstantial evidence that favor the State. That evidence showed that, while pursued by peace officers, defendant turned around and side-swiped an officer’s vehicle. The State’s incorrect recital of the requisite mental state in closing argument did not alter the elements of the offense.
Missouri Court of Appeals, Southern District - SD37985


Marital debt adjusted
Substantial evidence supported a finding that a payment to the parties was a loan and not a gift. Evidence that each party could earn enough to support their child rebutted the presumed child support amount. Statutes require a substantially equal division of marital property and debt, absent statutory factors, of which the record contains no evidence. Rule allows an appellate court to render the judgment that the circuit court should have, so the Court of Appeals adjusts the assignment of a marital debt equally between the parties.
(Overview Summary)
Katey L. Gipson, Respondent, vs. Joseph L. Gipson, Appellant.
Missouri Court of Appeals, Eastern District - ED111391

Child support: Only agency addresses arrearage, courts address modification only
When the statutes committed a matter to an executive branch agency, the statutory procedures included a hearing, which constituted administrative remedies that a party must exhaust before judicial review of the agency decision. To decide arrearages in past child support, statutes mandated one procedure, which was an action initiated before an agency. To decide modifications of future child support, statutes permitted two options: an action initiated before an agency, or an action initiated in circuit court. None of those procedures were interchangeable. When an action to modify was pending before the agency, obligor defaulted, and obligor did not seek judicial review of the resulting default decision. “[Obligor’s] failure to use the administrative framework provided to challenge the [default decision] preclude[d] judicial review of any challenge to [the default decision].” While the agency action was pending, obligor filed a motion to modify in circuit court. The circuit court eventually stayed enforcement of the eventual default decision, but the obligor’s motion to modify in circuit court did not constitute a petition for judicial review of the default decision because, no hearing and decision had occurred, when obligor filed the motion to modify. Obligor voluntarily dismissed the motion to modify in circuit court, which lifted the stay. On the agency’s motion, the circuit court issued a judgment determining that obligor’s child support obligation was as decided in the default decision. Because the circuit court did not have any authority to alter past amounts accrued under the default order, and obligor abandoned efforts to modify future amounts by dismissing the motion to modify in circuit court, the Court of Appeals affirmed the judgment.
Missouri Court of Appeals, Southern District - SD38023


Immunity from suit for COVID-19 negligence not placed at issue
In an action based on negligence in carrying out COVID-19 and other emergency protections, Missouri and United States statute provided that certain facts constituted immunity from suit. Immunity from suit is a way of saying that the petition does not state a claim and can be the grounds of a motion to dismiss. A motion to dismiss that includes matters outside the pleadings must proceed under rules for summary judgment, but only if the circuit court considers those matters. The circuit court did not consider matters outside the pleadings and denied the motion to dismiss because the petitioner did not allege the facts that support immunity. The Supreme Court quashes its preliminary writ of mandamus.
(Overview Summary) 
State ex rel. Clinton No. 1, Inc., Relator, vs. The Honorable Brandon Baker, Respondent.
Supreme Court of Missouri - SC100099


No motion to strike required on rehabilitated venire person
Ineffective assistance of counsel meant prejudice resulting from substandard performance. Substandard performance does not include refraining from meritless motions and making soundly strategic decisions. Strategic decisions include whether to strike a venireperson. A venireperson unequivocally rehabilitated from a suggested bias need not be the subject of a motion to strike. And the circuit court would not have granted that motion, showing that the motion would have been futile. “Special deference is given when the [motion] judge and the [trial and sentencing] judge are the same.”
(Overview Summary)
Victor R. Libeer vs. State of Missouri
Missouri Court of Appeals, Western District - WD85892

No defense in Post-Bazzell Statute
Ineffective assistance of counsel means substandard performance, which excludes a soundly strategic choice, that causes movant prejudice. Prejudice, as to a guilty plea, means only the effect of substandard performance on the plea’s knowing and voluntary nature. The knowing and voluntary nature of a guilty plea is subject to the advice of plea counsel about potential defenses. Potential defenses to stealing once included the Bazzell opinion, which held that statute enhancing sentences only applied when the value of the thing stolen was an element of the offense. The value of the thing stolen was not an element of movant’s offense when movant began an embezzlement scheme and constitutional provisions bar any ex post facto law, which is a law that adds criminal consequences for conduct completed before the effective date of that law. But the law making the value of the thing stolen an element of movant’s offense became effective while movant’s scheme was ongoing, and the statutes allowed the State to prosecute that scheme as a single offense with stolen amounts aggregated. Therefore, amended statute was not applied ex post facto and the value of the things stolen supported enhancement of movant’s sentence. The Bazzell opinion was not a defense, plea counsel’s choice to discuss and pursue other options was a sound strategy, and movant experienced neither substandard performance nor prejudice.
(Overview Summary)
Mary L. Browning vs. State of Missouri
Missouri Court of Appeals, Western District - WD85859

Reasonable trial strategy irrelevant on guilty plea
Ineffective assistance of trial counsel means substandard performance and resulting prejudice. Because movant pleaded guilty, reasonable trial strategy was irrelevant, and prejudice meant that the plea was not knowing and voluntary. Movant alleged that trial counsel failed to depose and call a witness. Trial counsel testified about efforts to locate the witness. The trial court found trial counsel credible, and found movant less than credible, especially compared to movant’s testimony at the plea hearing. And movant did not show how such lapse as alleged could have affected the knowing and voluntary nature of movant’s guilty plea.
Missouri Court of Appeals, Southern District - SD38095

Reasonable trial strategy includes not challenging a favorable witness
At the underlying criminal trial, trial counsel did not object when the State asked movant about, and movant endorsed, the veracity of a witness. That witness supported a defense strategy so the decision to make no objection was soundly strategic. “An objection to the State's line of questioning would have been contrary to trial counsel's strategy and a "failure of counsel to undermine his own trial strategy does not render counsel's assistance deficient.” And movant showed no prejudice, a reasonably likely different outcome at trial, given the overwhelming evidence of guilt.
Missouri Court of Appeals, Southern District - SD38089

Real Estate

Flowage easement conveyed
Circuit court erred in granting summary judgment for owner of lake theory of fee simple ownership when transfer documents showed that the conveyance was a flowage easement only. Reversed.
Missouri Court of Appeals, Southern District - SD37923

Single-family dwelling restriction waived
Transfer document language and the parties’ conduct after the transfer showed that developer and successor intended developer right to transfer to successor. Developer and successor treated a lake as common ground, so promissory estoppel barred a later-formed homeowner’s association from transferring the lake from common status to one owner. Successor waived a restriction limiting construction to single family dwellings by allowing the construction of a warehouse on one lot. As to that one lot, the Court of Appeals reverses the circuit court’s judgment enjoining use as a warehouse, but not as to two other lots. No abuse of discretion occurred in the circuit court’s award of partial attorney fees.
(Overview Summary)
Millstone Property Owners Association, Respondent/Cross-Appellant, vs. Nithyananda Dhyanapeetam of St. Louis, Appellant/Cross-Respondent, and Fogerty Farms, Respondent/Cross-Appellant.
Missouri Court of Appeals, Eastern District - ED110871