13
March
2020
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06:45 PM
America/Chicago

Case summaries for Mar. 6 - Mar. 12

Summary

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.

Appellate | Criminal | Education | Insurance | Orders of Protection | Post-Conviction | Workers' Compensation

Appellate

Weight of the Evidence Discussed
The Court of Appeals’ “preference to resolve matters on the merits . . . is not a license for non-compliance with” rules, of which fairness to those who do comply requires enforcement. A statement of facts that relies on facts favorable to appellant constitutes an admission that appellant would lose on relevant facts. A point relied on must choose one theory for challenging a ruling. In an appeal on the theory that a ruling is against the weight of the evidence, each point must specify one ruling challenged. An appellate court will consider evidence contrary to the ruling only if that evidence is subject to no dispute, credibility determination, and burden of proof. Court of Appeals grants respondents’ motion to dismiss appeal.
In Re the Marriage of: JANUS LAZARUS, Petitioner/Respondent vs. JULIANA JACOB, Respondent/Respondent and SILVIA IMANDA LAZARUS, Third-Party Respondent/Respondent RICHARD IMANDA LAZARUS, Third-Party Respondent/Appellant
Missouri Court of Appeals, Southern District - SD36060

Judgment Was Not a Default 
Judgment, issued after appellant filed an answer, was on the merits and not a default. The rule allowing circuit court to set aside a default judgment did not apply. Judgment denying the motion to set aside affirmed.  
In Re the Marriage of: CRAIG ANTHONY BELTO, Respondent vs. CASIE DENISE WHITE-BELTO, Appellant 
Missouri Court of Appeals, Southern District - SD36075

Criminal

Knowledge Necessary for Constructive Possession
The elements of possessing a controlled substance include knowledge of the controlled substance. Notations on evidence bag and laboratory report, admitted into evidence without objection, supported a finding as to what the contents were and where officers found them even as to items consumed in testing. Pills were concealed among other persons’ effects in a drawer in a dresser in an apartment, which appellant shared with another person, and to which visitors had access at “all hours of the day.” Those facts do not raise an inference that appellant knew of the pills, so those facts cannot support a finding of constructive possession.
State of Missouri vs. Francis Henry Kempker
(Overview Summary)
Missouri Court of Appeals, Western District - WD82495

Material Representations Defined
Evidence, showing appellant’s conduct in furtherance of her scheme to financially exploit a victim, was not inadmissible merely because that conduct was a bad act. On claims of health care fraud, circuit court correctly rejected the approved instruction defining representations “material” for perjury, and submitting a definition upheld by case law.
State of Missouri vs. Cheryl D. Kelly
(Overview Summary)
Missouri Court of Appeals, Western District - WD82085

Expunged Finding of Guilt Does Not Require Denying Concealed Carry Permit
Whether to deny appellant’s application for a concealed carry permit, based on an expunged offense, was within the discretion of respondent. Respondent thought the expunged offense mandated denial. Therefore, circuit court did not err in requiring respondent to reconsider appellant’s application using appellant’s expunged offense as a factor to guide the respondent’s discretion.
R.F. vs. Mark S. Owen, Platte County Sheriff
(Overview Summary)
Missouri Court of Appeals, Western District - WD83043

Unlawful Entry Shown
On a charge of burglary, the State showed unlawful entry through evidence that the lawful occupant of premises barred appellant from entering the premises unless the lawful occupant gave express permission. The State showed that appellant stayed with the intent to commit a crime through evidence that appellant touched a child in a manner constituting child molestation while on the premises.
STATE OF MISSOURI, Plaintiff-Respondent v. GABRIEL NICHOLAS WOOD, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD35873

Education

Liability for Substitute Teacher’s Conduct Discussed
Missouri Human Rights Act protects against race-based discrimination, which includes unfair treatment like the use of racial slurs, in public accommodations, which includes school. School district’s liability for substitute teacher’s conduct stands on respondeat superior, which can exist when the substitute teacher was the employee or agent of the school district, acting within those capacities. No party established beyond dispute the facts relevant to respondeat superior, so the Court of Appeals remands to circuit court.
M.N., A Minor by and Through His Biological Mother and Next Friend, S.N. vs. North Kansas City School District, and Kelly Services, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD82959

Insurance

No Coverage Under False Pretense Clause
Insured was a car dealer and had an “auto-dealers policy” with a false pretense clause that protected insured from “acquiring” a car from a seller who did not have title. Acquire unambiguously means more than paying for a car, according to the Missouri Supreme Court’s “institutional dictionary of choice [,]” which is Webster’s Third New International Dictionary. Insured never received possession of the car, so it did not acquire the car, and its loss of the payment was not covered.
Exotic Motors, Appellant, vs. Zurich American Insurance Co., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108090

Policy Unambiguous on Stacking
“[T]he denial of a motion for summary judgment is not reviewable on appeal [unless] the merits of that motion are inextricably intertwined with the issues in an appealable summary judgment granted in favor of another party.” Appellate courts review the interpretation of an insurance policy de novo. A declarations page does not determine coverage, it only introduces the policy, subject to further refinement. Policy’s chart expressly states the maximum payment per accident per vehicle. Limit of Liability Clause sets a single limit on insurer’s liability for each covered vehicle. Other Insurance Clause only limits insurer’s liability and does allow stacking.
KEANNA P. BRANCH KERPERIEN, Natural Daughter of Decedents, STEPHANIE KERPERIEN and JAMES KERPERIEN, Plaintiff-Respondent v. COLUMBIA MUTUAL INSURANCE COMPANY, MEMBER OF COLUMBIA INSURANCE GROUP, INC., Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36236

Orders of Protection

Alarm Discussed
“[A] record with a few inaudible moments” does not require a new trial. Elements of a claim for an order of child protection include alarm, including a parent’s alarm. But a finding of alarm must stand on more than conclusory allegations of alarm and allegations of parental meddling. It must have support in “testimony specifically addressing a plaintiff's fear of physical harm” like “overt threats of physical harm or evidence of physical confrontations.” The quantum of proof is clear and convincing evidence.
S.M.W., Respondent, vs. V.M., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107729

Post-Conviction

Motion on SIS Dismissed
Court of Appeals presumes that circuit court’s judgment of dismissal is correct and reverses only on clear error. Clear error did not occur, when circuit court dismissed appellant’s motion for post-conviction relief from a suspended imposition of sentence; because without imposition of sentence, no conviction exists. “It is well settled under Missouri law that an SIS is neither a conviction nor a sentence.” Because no conviction may ever exist, appellant’s motion was not merely premature, and appellant lacked standing to file the motion. If conviction does occur, a motion for relief from that conviction will not be premature.
Angela L. Brown, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108001

Knowing and Voluntary Plea Distinguished from Factual Basis
To state a claim that trial counsel was ineffective for failure to investigate potential witnesses, movant must identify those potential witnesses and describe their testimony. A factual basis for movant’s guilty plea existed when movant agreed that charging instrument’s allegations are true and constitute an offense. The record refuted the motion’s allegations, that movant enter pleas of guilty to the same charge three times, so no hearing was necessary to deny the motion on that theory. Inconsistent statements at a plea hearing, as to elements of the offense charged, do not make a plea involuntary. “Even if the accused maintains his innocence, so long as the plea of guilty represents a voluntary choice of alternatives available to him, according to his conception of his own best interests, it is not involuntary.” Whether a factual basis exists for a plea is a separate issue from whether a plea is knowing and voluntary, so a motion raising one issue does not preserve the other. But case law conflated the two issues when movant filed his motion, so the Court of Appeals exercises its discretion in favor of review.
Daniell W. Bibbs, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107490

Workers' Compensation

Claim Was Timely
Missouri statutes apply to a claimant employed in Kansas because the claimant accepted employment by telephone in Missouri. Statutes start claimant’s time to file a claim with the date of the injury or of the last payment “on account of” the injury. Even under strict construction, payments on account of the injury include payments under Kansas law for the category of injury that Missouri statutes describe, so such payments determined the time to file. Employer’s failure to file an injury report extends by one year. Claimant’s claim, filed within that time, was timely.
Clifford Austin vs. AM Mechanical Services Treasurer of the State of Missouri-Custodian of the Second Injury Fund
(Overview Summary)
Missouri Court of Appeals, Western District - WD82778