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Case summaries for Mar. 5 - 11, 2021


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.

AppellateCivil | Corporations and Other Business EntitiesCriminal | DWIEmployment | Evidence | FamilyInsurance | Local Government | Personal Injury | Post-ConvictionReal Estate | Utilities


Standard for Motion to Set Aside Discussed
The Court of Appeals presumes that the circuit court found the facts in accord with its judgment, so whether the record also included support for appellant’s claim is irrelevant, and “[d]eprived of this analytical starting point ... this appeal cannot succeed.”
In Re the Marriage of: LONA WALKER, Petitioner/Appellant vs. DAVID LEE WALKER, Respondent/Respondent
Missouri Court of Appeals, Southern District - SD36679


No Abuse of Discretion in Denying Extension
Rules freely allow amendments to pleadings, but appellant’s amendment missed multiple deadlines, which circuit court refused to extend. Whether rule governing the grant of a motion to dismiss, expressly allowing an amended pleading to cure the grounds for dismissal, applies was not before the circuit court so an appellate court will not decide that issue. Rule allows an extension of a missed deadline caused by excusable neglect, which means a mishap not resulting from movant’s negligence. Negligence “and deliberate disregard” characterized movant’s multiple failures “to comply with the circuit court’s deadline [,]” as shown in the record, and appellant showed no evidence to the contrary.
Carolyn Holmes, Personal Representative for the Estate of Robert V. Holmes, Appellant, vs. Union Pacific Railroad Co., Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98673

Judgment on the Merits Requires Jurisdiction, Which Requires Standing
The components of justiciability in any matter include plaintiff’s standing, which means some legally protected interest. When the matter is real property damage, the interest must be ownership of the property when the damage occurred, and no later. Plaintiff alleged damage to real property but showed no ownership of the property when damages occurred. Without standing, a circuit court has no justiciable matter to determine on the merits, as it would by summary judgment, and can only dismiss the action without reaching the merits. Court of Appeals remands to circuit court to enter a judgment of dismissal without prejudice.
Dustin M. Bray, Appellant, vs. Tony Y. Lee, Jamie S. Fuhrman, and Christopher A. Gohlke, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108971

No Order Needed for Appointment of Special Server
Voluntary payment of a judgment moots relief from that judgment, but collection activity made the payment in the underlying collection action involuntary, and a void judgment is subject to collateral attack by any means. But the underlying collection action was not void for irregular service. Statutes and rules governing service of process allow the appointment of a special server, and do not require an order identifying the server appointed. Process issued and served accordingly did not offend the due process of law and constituted notice that secured circuit court jurisdiction over appellant in an underlying collection action. The judgment in the underlying collection action was therefore not subject to collateral attack by separate action, and the judgment dismissing the separate action was not error. If the circuit court’s result has support under any reasonable theory that has support in the record, even when the circuit court did not discuss such law and facts in the judgment, the Court of Appeals will affirm the judgment.
Karen Coburn, Appellant, vs. Kramer & Frank, P.C., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108948

Bankruptcy No Obstacle to Garnishment
Rule on serving notice and writ of garnishment, in effect at the time of service, allowed a deputy sheriff to sign the return. That service attached insurance proceeds, which garnishee paid in before expiration of the writ. Bankruptcy court’s automatic stay, and later discharge, did not enjoin circuit court’s declaratory judgment action to determine creditor’s rights to insurance proceeds. Therefore, denial of the debtors’ motion to vacate the disbursement order was not erroneous. The disbursement order did not bear designation as a final judgment, so the disbursement order did not constitute a final judgment, and a later order could not make the disbursement order into a final judgment retroactively. An interlocutory order cannot bar re-litigation of claims or issues, until merged into a final judgment. Judgment dismissing a collateral action did not bar appeal of final judgment. Debtors’ allegations in circuit court, of duplicate recoveries, did not preserve allegations in the Court of Appeals that respondents collected one person’s debt from another person’s assets.
Cornerstone Mortgage Inc., Respondent, vs. Kurt Ponzar and Sandra Ponzar, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108758

Corporations and Other Business Entities

Veils Pierced, Bankruptcy Defenses Denied
An earlier bankruptcy by an LLC member did not protect the LLC against a default judgment. Respondent then sought damages awarded in the default judgment from all appellants, including LLCs and their members, under the Missouri Uniform Fraudulent Transfers Act. Service of process during an automatic stay in a later bankruptcy would be relevant only to circuit court’s personal jurisdiction, which appellants waived with any other bankruptcy-based defenses, by failure to raise them in circuit court. The Act required no evidence on whether any transfer included an exchange of value. Respondent presented evidence supporting the circuit court’s disregard of LLC limitations on personal liability. The Act provided an award in the amount of damages in the underlying action, or the transfers within the applicable period, whichever was less. Because the amount of compensatory damages awarded was correct, the amount of proportionate punitive damages awarded was correct. No automatic stay was in effect when circuit court judgment issued. Multifarious point relied on dismissed.
Eric Dieckmann, Respondent, vs. JH Construction 2, LLC d/b/a JH Exteriors, et al., Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108670


Distance Not Shown
Statute punishes certain persons “present ... within five hundred feet of any ... public park with playground equipment [,]” but the State offered no evidence of how close defendant was to any park. Evidence that defendant was “near” the park, and that grass and trees are visible next to defendant’s location, support only speculation—not a logical inference—on where the park was. “[A] factfinder is simply not permitted to speculate as to that distance.”
State of Missouri, Respondent, vs. Christopher L. Lehman, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98844

Felony Murder Conviction Affirmed
Rule provides that a challenge to the sufficiency of the charging instrument need not appear in a motion for new trial. The elements of attempted robbery in the first degree include the purpose to permanently deprive the owner of property, and the charging instrument omitted permanence, but a citation to the statute defining the offense was sufficient notice. The approved instruction for attempted robbery in the first degree must include all elements of that offense, and verdict director did not set forth the element of a deadly weapon in connection with the attempted offense, but other parts of that instruction did set forth that element so no plain error occurred. Felony murder can occur after the underlying offense is complete until “all other acts or consequences reasonably associated with the felony have occurred including, but not limited to, flight [,]” so defendant was liable for a murder committed in the same course of events as the underlying burglary.
State of Missouri vs. Nathan R. Hendricks
(Overview Summary)
Missouri Court of Appeals, Western District - WD83205

Evidence Must Support Psychiatric Evaluation
Due process requires a psychiatric evaluation of defendant only when a reasonable circuit court would doubt defendant’s competency to stand trial. Reasonable grounds for such doubt may come from an earlier evaluation, and first-hand observations of the circuit court, and the testimony of witnesses.  Appellant did not show that circuit court erred in finding that appellant was malingering.
STATE OF MISSOURI, Plaintiff-Respondent vs. DEMARCUS OWENS, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36510

Shackling Okay
Special security needs or escape risks specific to defendant may support the shackling of defendant, voir dire revealed no issue with shackling for any juror, and defense made no objection at trial. Defendant waived any challenge to venue when his only timely motion for a change of venue cited an inapplicable rule.
Missouri Court of Appeals, Southern District - SD36523

No Plain Error Review of Voir Dire
A jury included a venire person who had doubted that defendant could have an innocent explanation for lying about his offenses. That jury convicted defendant of only the least serious of three charges, and acquitted defendant on the two more serious charges. Whether plain error occurred, when the circuit judge did not sua sponte strike the doubting panelist, Court of Appeals declines to review.
Missouri Court of Appeals, Southern District - SD36520


Out-of-State Convictions Show Habitual Offender Status
Proof beyond a reasonable doubt may consist of a prima facie case, unrefuted by defendant, for which a sister State’s certified driving record is admissible. Statutes enhance the offense of driving while intoxicated to a class B felony on a finding that defendant is a habitual offender. Statutes define a habitual offender as someone found guilty of five or more traffic offenses, committed on separate occasions, that consist of conduct that Missouri statutes intend to deter. Missouri statutes intend to deter, not merely driving with a specified blood alcohol content, but operating a motor vehicle while impaired by any substance. That conduct was the subject of offenses of which Colorado found appellant guilty, according to a certified driving record, so the State made its prima facie case. The possibility that appellant’s Colorado conduct was within Colorado statutes, but outside of Missouri statutes, does not negate that prima facie case because an appellate court disregards inferences contrary to the judgment.   
State of Missouri, Respondent, vs. Timothy A. Shepherd, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108519


Leave Can Be a Reasonable Accommodation
Employee’s multiple related medical conditions constituted a disability and not a minor temporary illness. Employer did not show that speculation, on whether one such condition was work-related, caused any prejudice. The Missouri Human Rights Act, employer’s policy, and employer’s practice required employer to provide a disabled employee with a reasonable accommodation. Reasonable accommodation could have included leave without pay, for which employee applied, and supported with medical documentation. An instruction on re-employment pay had support in evidence that an application for re-employment would have been futile. Court of Appeals declines plain error review of an approved instruction. Damages were sufficient without a discretionary additional amount for front pay. Remanded to determine attorney fees for appeal.
James K. Sherry vs. City of Lee's Summit, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83635 and WD83671


Expert Evidence Excluded
Statute governing expert testimony provides that admissibility requires a foundation of qualifications, relevance, and reliability. Reliability includes sufficient data and appropriate analysis, which assumptions of fact and citations to an unrelated product recall did not satisfy, without “confirmatory testing, third-party validation or other facts and data buttressing the reliability of the methods applied or conclusions produced.” The circuit court did not err in excluding the opinion of plaintiff’s expert based on finding that too great an “analytical gap [,]” between the expert’s data and the expert’s opinion, made the expert’s opinion unreliable. Without the opinion of plaintiff’s expert, circuit court did not err in granting summary judgment for defendant.
Christopher Gebhardt vs. American Honda Motor Co., Inc, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83786


Evidence Supports Uncalculated Maintenance Award
In judgment awarding maintenance, circuit court provided no supporting calculation, so Court of Appeals affirms the judgment if the record supports it. Evidence supports the amount awarded to respondent without consideration of contested expenses because the circuit court may exclude income from marital property awarded to respondent. Because remand did not include child support, the record does not support an increase in child support. Circuit court increased child support, and the Court of Appeals can enter the judgment that the circuit court should have entered. The Court of Appeals modifies the judgment to restore the former child support amount.     
Laura Sulkin, Respondent, vs. David Sulkin, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107931


Neither Uninsured Nor Hit-and-Run Coverage Applied
Appellant’s automobile policy covered damage from uninsured drivers and hit-and-run drivers, but neither coverage applied when driver’s insurer covered appellant’s operator liability claim and appellant never claimed owner’s liability.  Financial responsibility statutes require no different result. Circuit court did not err in granting summary judgment for insurance on claims against insurer for damages and vexatious refusal to pay.
Robert Morris vs. Geico Casualty Company, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83788

UIM Limits Section Missing
Automobile policy’s declarations page need not repeat all the policy’s exclusions and limitations. Provisions for underinsured motorist coverage limits referenced a subsection of the declarations page. The declarations pages did not have that subsection but set forth the limits for underinsured motorist coverage in plain language. Underinsured motorist coverage’s anti-stacking provisions were plain and not contradictory. Circuit court did not err in finding the policy language unambiguous.
Missouri Court of Appeals, Southern District - SD36752

Local Government

Legal Expense Fund Covers State Agencies Only
Statutes apply the protections of the State Legal Defense Fund only to State agencies, which do not include political subdivisions like school districts, or the Special Administrative Board of the Transitional School District. Appointment of a board’s CEO by the governor does not, alone, make that board a State agency. “Because [respondent] is not entitled to judgment as matter of law, [the Supreme] Court need not consider any potential issues of material fact.”
S.M.H., Respondent, vs. Eric Schmitt, Attorney General of the State of Missouri, and Sarah Steelman, Commissioner of Administration, State of Missouri, Appellants.
(Overview Summary)
Supreme Court of Missouri - SC98675

Personal Injury

No Legal Expense Fund Coverage for Metrolink
Statutes provide that the State Legal Expense Fund pays judgments against State officials and agencies, but that does not include an interstate compact entity like the Bi-State Development Agency of the Missouri-Illinois Metropolitan District, which operates Metrolink. “Missouri and Illinois are not compelled to fund Bi–State. Significantly, nothing obligates Missouri and Illinois to satisfy Bi–State’s liabilities and obligations.”
Lisa Wilson vs. Attorney General and Commissioner of Administration
(Overview Summary)
Missouri Court of Appeals, Western District - WD83784

Massachusetts Rule on Accumulation of Ice Discussed
In plaintiff’s action for slipping on accumulated ice or snow, Missouri courts use the Massachusetts rule: no liability for “snow or ice that accumulates naturally and is a condition general to the community.” Undisputed facts showed that landowner did nothing about the natural accumulation in its parking lot so an exception, for voluntary assumption of duty, did not apply to landowner. Plaintiff did not establish beyond genuine dispute that a co-defendant contracted to remove natural accumulations, so plaintiff did not show that a contractual duty applied to co-defendant. But co-defendant did not establish beyond genuine dispute that its contract did not require co-defendant to remove natural accumulations on the parking lot, so co-defendant was also not entitled to summary judgment. Whether to abrogate the Massachusetts rule is for the Missouri Supreme Court to decide.
Colleen O'Donnell, Appellant, vs. PNK (River City), LLC, d/b/a River City Casino & Hotel, and Total Lot Maintenance, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108986


Credibility Determines Rulings
Ineffective assistance of plea counsel includes failure to convey a pending plea bargain offer. The circuit court found that plea counsel conveyed a plea bargain offer to movant before the State withdrew that offer. The circuit court also found that, even if plea counsel had not conveyed that offer, it would not have prejudiced movant, because movant would not have taken the offer. Those findings stood on the circuit court’s determination of witness credibility, to which the Court of Appeals defers. Also, plea counsel obtained a better disposition than the plea bargain offered. “Two years of probation is more favorable than five years of incarceration.”
Shane S. Kerpash, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108749

Real Estate

Legal Nonconformance Denied
“The term ‘nonconforming use’ means a use of land which lawfully existed prior to the enactment of a zoning ordinance and which is maintained after the effective date of the ordinance even though not in compliance with the new use restriction.” City code allowed non-conforming use on proof of uninterrupted use since a lawful inception, which appellant did not show.  Appellant’s brief does not comply with rules governing review of administrative agency decisions, and the format for points relied on, but an appellate court has discretion to review appellant’s points relied on nonetheless.
The Parkview Vale, LLC and The Alma, LLC vs. Board of Zoning Adjustment for the City of Kansas City, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83729 and WD83730


Procedure for Transfer of Assets Explained
Appellate review of a Public Service Commission order determines whether the order has support in law and fact. Any person may initiate an action at the Commission seeking authorization for a sale of public utility assets, not just the prospective seller; and the Commission’s regulation, authorizing buyer to apply on seller’s behalf, was consistent with the governing statute. That statute requires approval when the applicant shows that the proposed sale is not “detrimental to the public interest [,]” which does not require proof of the best possible, or even improved, service. When the Commission issues an order authorizing an activity, completion of that activity does not moot an appeal of that order, because an appellate court can undo the Commission’s authorization for the activity. Appellate courts look at the record as a whole, so an argument that does not address evidence supporting the order appealed does not address the weight of the evidence and cannot prevail on such a challenge. A point relied on, charging that the order is “unlawful, unreasonable, arbitrary, capricious, and not supported by competent and substantial evidence” is multifarious. To argue that the Commission both considered and ignored appellants’ evidence “is frivolous.” The Commission’s order shows consideration of all relevant factors. The Commission’s findings had support in the evidence, which an appellate court will not re-weigh, and the Commission correctly applied the law to the facts when finding convenience and necessity, so the Court of Appeals affirms the Commission’s order.
In the Matter of the Application of Osage Utility Operating Company, Inc., to Acquire Certain Water and Sewer Assets and for a Certificate of Convenience and Necessity; Public Water Supply District No. 5 of Camden County, Lake Area Waste Water Association, Inc., Missouri Water Association, Inc., and Cedar Glen Condominium Owners Association, Inc.; and Office of the Public Counsel vs. Missouri Public Service Commission; and Osage Utility Operating Company, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83837