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Case summaries for Mar. 4 - Mar. 10, 2022


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 | Civil | Employment | Family | Juvenile | Post-Conviction | Real Estate | Workers' Compensation


Appointment of an Umpire Reversed  
Renter’s insurance policy covered property damage and provided for an umpire to assist in the resolution of disputes over the amount of loss, but not disputes over coverage. Coverage means the extent of liability, meaning “exactly what has been damaged [,]” which must find resolution before the dollar amount of such liability. Court of Appeals reverses the judgment appointing an umpire and dismisses it without prejudice.  
Philip Brewer and Lori Brewer vs. State Farm Fire and Casualty Company  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84331


Non-Affidavits Not Admissible  
“A motion to compel arbitration first requires the trial court to determine whether a valid arbitration agreement exists.” On that matter, the burden of proof is with the movant, and evidence is necessary. Affidavits are hearsay but rules make an affidavit admissible in support of a motion. Appellant employer offered documents showing an arbitration agreement with its employees, but documents are inadmissible absent authentication, which employer did not provide with unsworn statements showing no first-hand knowledge of their allegations. Respondents objected and have no burden on appeal. “Our identification of arguments which will uphold the circuit court’s judgment is not limited to issues raised by the respondent.” Missouri rule generally allowing unverified pleadings and federal rule on statements made under penalty of perjury do not apply to a motion in circuit court. Denial of motion to compel arbitration affirmed.  
Roy Brown, et al. vs. Chipotle Services, LLC, et al.  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84613

Failure to State a Claim Explained  
On a motion to dismiss for failure to state a claim, the issue is whether the petition’s four corners contain allegations that, if they are true, describe facts on which the law allows a circuit court to grant relief. Matters outside the pleadings are only before the circuit court if the circuit court treats the motion to dismiss as a motion for summary judgment after notice, which it did not do, especially when those matters are subject to pending litigation. Further, the circuit court erred in relying sua sponte on a defense not pleaded, not proved, and not supported by the record.      
Julie Gomoletz vs. Rockhurst University  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84330


Right-to-Sue Letter Mandated  
Review of summary judgment in an action for writ of mandamus is de novo. In an action for a writ of mandamus, the elements include a right already established as law, which does not mean a right to be established in that writ action. The Missouri Human Rights Act requires the Missouri Human Rights Commission to issue complainant a right-to-sue letter upon written request 180 days of filing a complaint. The Commission’s statutory authority over any complaint includes investigating and determining allegations and denials, including those related to its own authority, which does not extend that time. A written request filed less than 180 days from the complaint’s filing is not subject to denial as premature. Judgment issuing writ mandamus, ordering the Commission to issue a right-to-sue-letter, affirmed.  
Mohammad Q. Najib vs. Missouri Commission on Human Rights, et al. and Mercy Clinic Joplin  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84344, WD84443, and WD84454


Change of Custody Affirmed  
Point challenging separate rulings on prayers for child support, denying appellant’s and granting respondents, is multifarious. Challenges to a ruling are abandoned when not raised in circuit court, or shown to be preserved, or unsupported with citations to the standard of review, or supporting authority on appeal. Judgment modifying custody from joint to sole addressed the applicable statutory factors, with findings of fact supported by relevant evidence, more than adequately for appellate review. Even if appellant had supported an against-the weight-of-the-evidence argument, as to the circuit court’s rulings on parental decision-making ability and child’s best interests, those rulings were not against the weight of the evidence.  
Alexandra C. Prevost vs. Brett M. Silmon  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84501


Adjudication Appearance Restricted to Video, Judgment Vacated  
Like a criminal defendant, a juvenile “is guaranteed the right to be present at any stage of the criminal proceedings that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Rules addressing COVID-19 protect that right. Circuit court erred in conducting adjudication hearing without juvenile present, juvenile preserved the constitutional objection, and the presumption of preserved error is unrebutted. Reversed and remanded for further proceedings.    
In the Interest of: L.I.B. vs. Juvenile Officer  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84107


Sound Strategy Found  
The defense of entrapment requires defendant to show that the disposition toward criminal conduct, not merely the opportunity, came from the State. The evidence did not favor the entrapment defense so, though defense counsel could not remember a strategic reason to eschew that defense, the record showed that such strategy was sound. That showing negates the allegation of substandard performance by trial counsel.  
Jimmy O. Cunningham vs. State of Missouri  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84285

Mailbox Rule Applied   
Mailbox rule provides that motions properly addressed with sufficient postage and postmarked no later than the filing deadline are timely. Movant failed to show ineffective assistance of counsel for failure to call a witness whom movant could not show was locatable, willing to testify, and could support a viable defense.   
KENNETH STEWART, Appellant vs. STATE OF MISSOURI, Respondent   
Missouri Court of Appeals, Southern District - SD37020

Real Estate

Late Assessment Constitutes a Claim   
A tax sale does not constitute a contract subject to any unconstitutional impairment. But, after plaintiff bought land at a tax sale, city filed its assessment for demolition of improvements on that land. Demolition, as described in the petition, benefited the city so it constituted at least a dual function: both public improvement and income for the city. The latter is a proprietary function, to which sovereign immunity from damages does not apply, so the circuit court erred in dismissing that claim.   
KITC Homes, LLC, Appellant, vs. City of Richmond Heights, MO, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED109814 

Workers’ Compensation

New Standard Renders Evidence Newly Relevant  
Regulation of the Labor and Industrial Relations Commission bars new evidence on remand when remand limits the Commission to the existing record. But a remand for the Commission to “consider ‘all of the evidence’” did not limit the Commission to the existing record. That was especially true because the reason for reversal was that “the Missouri courts’ interpretation of the law took an unforeseen direction, changing [a claimant]’s burden of proof after the Commission award[,]” and making different facts relevant. Medical documentation includes any record pertaining to claimant’s condition, and includes claimant’s description of claimant’s condition, so records that may have been based in part on self-reporting were not inadmissible. Remanded again, to consider evidence made relevant by the standard for Second Injury Fund Liability as most recently articulated by statute and appellate opinion, which renders a ruling on remaining point advisory.  
Thomas Dubuc vs. Treasurer of the State of Missouri Custodian of the Second Injury Fund  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84171