Case summaries for March 7-13, 2025

Appellate | Civil | Construction | Criminal | Real estate

Appellate

Motion for rehearing or to transfer denied 
Rule required notice and time to cure failures to perfect dismissal of appeals by filing the complete record or filing fee. That rule did not apply to a dismissal for violations of briefing rules. The Missouri Court of Appeals denied appellant’s motion for rehearing or transfer. 
IN RE THE MARRIAGE OF: BRIAN FLOOD and HOLLY JESSICA FLOOD, BRIAN FLOOD, Respondent v. HOLLY JESSICA FLOOD, Appellant 
Missouri Court of Appeals-Southern District - SD38517

Civil

Content of contempt judgments discussed 
Appellate courts reversed judgments for erroneously admitted error only if the prejudice was outcome-determinative. Circuit judges were presumed to ignore inadmissible evidence and that presumption was subject to rebuttal only on a showing that the circuit judge considered and relied on the inadmissible evidence. A video used to refresh a witness’s recollection was not admissible into evidence, and the circuit judge viewed it anyway, but appellant did not show that the circuit judge considered and relied on the video. Judgments finding a party in contempt had to include findings of fact setting forth the conduct that constituted contempt. The remedies for contempt were within a broad range of circuit court discretion, but limited by the provision of the judgment stating that the judgment was not subject to modification, so the circuit court erred in ordering a change in the judgment as a remedy for contempt. The Missouri Court of Appeals reversed and remanded the judgment for the required findings of fact and a different remedy. 
(Overview Summary) 
Linda J. Tierney, Appellant, v. Lawrence J. Tierney, Respondent 
Missouri Court of Appeals-Eastern District – ED112742

Construction

Permit defined construction 
City code provided that building permits expired one year after issuance unless applicants had started “construction.” Construction had no code definition so the Missouri Court of Appeals applied the dictionary definition and the provisions of the permit, which included tree clearance, excavation, grading, and filling. The applicant had timely started those activities so the Board of Adjustment erred in holding otherwise and upholding a stop-work order on that basis. 
(Overview Summary) 
Harmony Pointe, LLC, Respondent, vs. City of Cottleville, MO, et al., Appellants. 
Missouri Court of Appeals-Eastern District – ED112620

Criminal

Child victim’s out-of-court statement okay 
The purpose of impeachment was to challenge witnesses’ veracity, of which drug use specifically during the events alleged was probative, but past drug use generally was not. Appellate courts did not re-weigh evidence and affirmed a judgment when the evidence supported a reasonable juror’s findings. Victims’ evidence was sufficient to support findings of assault and the assault supported a finding that defendant committed the assault knowingly. Child victim’s out-of-court testimony was admissible on a statutory foundation including sufficient indicia of reliability significant trauma likely from in-court testimony. Application of the statute did not violate constitutional provisions on confrontation. 
(Overview Summary) 
State of Missouri, Respondent, v. Deric A. Rugen, Appellant. 
Missouri Court of Appeals-Eastern District – ED112437

No hearing due on sex offender assessment unit report 
The writ of mandamus issues to compel the performance of a ministerial duty, to which relator had to show a right. Statutes created diversion programs and, for defendants who were successful, gave circuit courts discretion to order probation on successful completion. For unsuccessful defendants, circuit courts had to follow the program’s recommendations, and no hearing was necessary before denying probation and executing sentence. The circuit court placed relator defendant with the Sex Offender Assessment Unit’s diversion program, whose report stated neither that relator was successful nor unsuccessful, but recommended against probation. The Missouri Court of Appeals quashed its preliminary writ that required the circuit court to conduct a hearing before executing sentence. 
STATE ex rel. ROBERT L. BUGGEY, Relator vs. THE HONORABLE GAYLE LEE CRANE, Respondent 
Missouri Court of Appeals-Southern District - SD38678

Real estate

Zoning appeal was too late 
Statute provided that a city building commissioner’s decisions were subject to appeal before the city’s zoning board of adjustment “within a reasonable time, as provided by the rules of the board [,]” which provided that a reasonable time was not more than 30 days from notice, of the decision. The decision issued over a year before appellant filed an appeal with the board, so the board did not err in dismissing the appeal as untimely. 
(Overview Summary) 
David P. Oetting, Appellant, v. City of Ladue, et al., Respondents. 
Missouri Court of Appeals-Eastern District – ED112717