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Case summaries for March 11 - March 17, 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.

Appellate | Criminal | Family | Juvenile | Personal Injury | Post-Conviction | Probate


Transfer Explained 
On transfer to the Supreme Court from the Court of Appeals after the opinion, the opinion of the Court of Appeals “loses precedential value,” and the Supreme Court conducts review on the record as if it were the first tribunal to do so. That means review of the agency decision as described by rule, not of the Court of Appeals opinion as set forth in appellant’s points relied on. Other failures to comply with the rules of appellate procedure include multifarious points, references to the record absent from the statement of facts, and lack of page numbers on the table of authorities. Appellant failed to address the deficiencies cited by the Court of Appeals and failed to correct them, even on a substitute brief in the Supreme Court. “A just rule, fairly interpreted and enforced, wrongs no man. Ostensibly enforced, but not, it necessarily wrongs some men viz., those who labor to obey it-the very ones it should not injure.” The Supreme Court has already spoken on appellant’s point of general interest, so another opinion addressing that point would have no precedential value. Dismissed. 
Michael A. Lexow, Appellant, vs. Boeing Co., Employer, and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99199


Evidentiary Hearing Required in Expungement Action 
Dismissal of a criminal charge is grounds for expungement of a related arrest record. Plaintiff must prove that “no charges will be pursued as a result of the arrest [,]” and the dismissed charge against plaintiff was subject to renewed prosecution without a statute of limitations, so circuit court denied the petition. But statute and rule also require “a hearing” on the petition, which means an evidentiary hearing at which petitioner can show that no charges will be pursued, including evidence of “actual innocence of the offense [,] false information or no probable cause [or o]ther possibilities [.]” Remanded for such evidentiary hearing. 
Elicia Milton, Appellant, vs. St. Louis County, Missouri, et al., Respondents 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109705

Voir Dire Seating Sufficiently Random 
Statutes provide random juror selection, and a departure from that procedure may constitute a violation “so fundamental or systemic in nature as to amount to a ‘substantial’ failure to comply with the statutes, thereby entitling a defendant to relief, even in the absence of a clear showing of actual prejudice or of a constitutional violation.” No such violation occurred when the circuit court seated voir dire panel according to the order in which they arrived at the courthouse. Appellate showed no constitutional violation or any other prejudice. Convictions affirmed. 
State of Missouri vs. Kyle Matthews 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84284 

Double Jeopardy Bars Multiple Punishments Not Multiple Offenses 
On charges that included possessing a controlled substance, and unlawful use of a weapon by possessing a firearm while possessing a controlled substance, the circuit court dismissed the latter citing constitutional protections against double jeopardy. Those protections bar further prosecution after judgment, and bar cumulative sentencings unauthorized by law for one set of facts, but not prosecution and sentencing under multiple laws that all address the same fact. Therefore, the circuit court erred in dismissing the possession charge. 
State of Missouri, Appellant, vs. Gary Andrews, Jr., Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99063

Mandatory Criminal Defense Disclosures Stricken 
The General Assembly amended a bill to require that criminal defense attorneys advise crime victims of certain rights before, and summon other professionals to, any interview. That amendment did not change the bill’s title, original purpose, or single subject. But the amendment regulated professional speech based on content. Content-based regulation of communication is presumptively barred under constitutional protections of free speech, with strict scrutiny applied to the non-commercial speech of professionals like attorneys. To pass constitutional review, a law must serve compelling state interests and be narrowly tailored to that end. 
Mary Fox, et al., Respondents/Cross-Appellants, vs. State of Missouri, et al., Appellants/Cross-Respondents 
(Overview Summary) 
Supreme Court of Missouri - SC98909


No Expenses Awarded in Termination of Parental Rights 
Appellant showed no prejudice from hearsay statements of child declarants. Statute allows circuit court litigation expenses in amounts set forth by regulation, including attorney fees and expert fees to ensure adequate representation, which signifies a matter of circuit court discretion. No abuse of discretion occurred when circuit court denied appellant’s request for the expenses of an examination that was not probative of the “overwhelming” grounds supporting the circuit court’s judgment. 
In the Interest of: L.Q.F., A.E.D., D.G.F., J.S.F., L.T.K., and J.L.K. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109823

Handwritten Provision for Maintenance Not Modifiable 
As to whether an award of maintenance is modifiable, the judgment of dissolution prevails over the parties’ settlement document. Settlement document’s pre-printed form had space for one amount for one period only; so, for another specified amount for another specified period, the parties had to handwrite the provisions elsewhere. And no provision for modification of maintenance appears anywhere in their settlement document. Therefore, neither of the amounts is subject to modification, and the circuit court did not err in dismissing the motion for modification.  
Susan Joseph, f/k/a Susan Schrauth, Respondent, vs. Eric Schrauth, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109631


Failure to Appear Was Not a Crime 
Failure to appear is a crime, if the appearance required was due at some “stage of a criminal matter against” appellant, or “civil proceedings of parole and probation revocation [.]” So, even if appellant were an adult, failure to appear at the juvenile proceeding would not be a criminal offense. Moreover, juvenile probation is subject to revocation on facts that do not constitute a crime. Rules of juvenile procedure provide consequences for failure to appear at a juvenile proceeding and supersede other rules. Reversed and remanded. 
In the Interest of: J.R.K. Juvenile Officer vs. J.R.K. 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84500

Personal Injury

Official Immunity Applied 
On defendant’s motion for judgment on the pleadings, defendant admits the petition’s allegations, so the answer’s denials could not have supported the circuit court’s ruling. Official immunity protects State employees from liability for the exercise of discretion in the course of official duties and, “even when a clerical [duty] appears to be ... required by statute, official immunity will still apply if the official retains authority to decide when and how the act is to be done.” Defendant State employees’ investigations and recommendations on reports of child abuse were discretionary so plaintiff’s allegations, that defendants breached their duty to protect decedent child from abuse, described events to which official immunity applies. Plaintiffs’ proffered amendments would have only furthered its description of a discretionary duty. Circuit court did not err in granting judgment on the pleadings and denying plaintiff’s motion to amend.          
Judy Conway, et al. vs. Rebecca Caldwell, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84487


Evidentiary Hearing Required on Appellate Counsel’s Performance 
The decision against making a meritless argument does not support a charge of ineffective assistance. “[F]irst-degree child molestation requires proof of additional facts than those required to prove first-degree statutory rape [,]” rendering a double jeopardy argument on those instructions meritless, as to counsel at trial and on direct appeal. The record shows that some of the alleged conduct occurred after the cited statute’s effective date, so appellate counsel was not ineffective for deciding against an argument otherwise, and no evidentiary hearing was before denying relief. As to a charge of a specific manner of contact within a specific time period, the record shows insufficient evidence, even by reasonable inference, and movant showed prejudice in the form of a reasonable probability that appellate counsel’s lapse was outcome determinative. Therefore, an evidentiary hearing was due on whether appellate counsel was ineffective for failure to raise that point on appeal. On those allegations, the Court of Appeals remands for an evidentiary hearing. 
Pervis McAllister, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109569 

No Expansion of the Record 
An initial motion filed too late, unless within an exception to the requirement of timely filing, is subject to dismissal only and not to a ruling on the merits. Movant’s motion to expand the record on appeal was also untimely, and did not relate to the determinative issue of timely filing of the initial motion in circuit court, and lacked evidentiary support. On the merits of the motion’s allegations, the circuit court determined credibility against movant, which an appellate court will not re-determine. 
Marlin Dallas Lane vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84281

Prejudice Is Not an Element of Abandonment 
When appointed post-conviction counsel files an amended motion late, a presumption of abandonment arises, which the circuit court must independently investigate. If the amended motion was filed late without movant’s fault, abandonment occurred, and the circuit court rules on the merits of the amended motion. If no abandonment occurred, the circuit court rules on the merits of the initial motion. Circuit court’s first judgment ruled on the merits of a late filed amended motion without investigating and determining abandonment so, on the first appeal, the Court of Appeals reversed and ordered the first remand to conduct that investigation and determination. On the first remand, the circuit court determined that appointed counsel had filed the amended motion late without movant’s fault, but found no abandonment. No abandonment occurred, the circuit court held, because no prejudice had occurred. No prejudice had occurred, the circuit court held, because the circuit court’s first judgment had reached the merits of the amended motion. On a second appeal, the Court of Appeals again reverses, because prejudice is not an element of abandonment. The Court of Appeals orders a second remand to determine whether abandonment occurred; and, if so, rule on the merits of the amended motion; and, if not, rule on the merits of the initial motion. 
WESLEY HATMON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD37074


Appeal Premature 
In a dispute over the administration of a trust, the parties agreed to dismiss with prejudice their petitions against one another upon satisfaction of their settlement terms. That filing suspended the claims pending performance, and no order of continuing supervision was necessary to maintain the circuit court’s authority. The parties then filed further motions to enforce the settlement and for other relief. The circuit court ruled on some of those matters but not all, only one party dismissed its petition, and that dismissal was without prejudice. The circuit court’s ruling, therefore, left issues unaddressed and did not constitute a final judgment. 
Karen Finley, In her Capacity as Personal Representative of the Estate of Susan M. Finley and In her Capacity as Trustee of the Susan M. Finley Living Trust dated October 1, 2002, Appellant, vs. Steven R. Finley, and Cynthia D. Finley, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109676