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Case summaries for Mar. 12-18, 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.

Appellate | Civil | Contract | DWI | Real Estate | Personal Injury | Post-Conviction | Probate


Omission of Argument Requires Dismissal
Failures to comply with rules governing statement of the facts, standard of review, points relied on, and argument make appellate review impossible “without becoming an advocate for” appellant. Dismissed.
Bradley Burgan, Appellant, vs. Kenneth Newman, et al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109137

Objection to Closing Argument Not Preserved
Court of Appeals can review challenges to a circuit court’s ruling only if preserved for appeal. A motion for new trial that cited “failing to instruct the jury to disregard the personalizing statements” did not preserve an objection to “personalizing to the jury” or “improperly personaliz[ing] the matter for the jury [.]” Judgment affirmed. 
Missouri Court of Appeals, Southern District - SD36704


Authority Lost Before Judgment Amended
Rule limits circuit court authority over a judgment to 30 days, after which the only authority left is over relief sought in a timely filed after-trial motion. Circuit court’s amended judgment, awarding relief not sought in an authorized after-trial motion and issued more than 30 days after initial judgment, was made without authority. Reversed in part and remanded to issue a new judgment without unauthorized relief.  
WARREN COATS, Trustee, Plaintiff-Respondent v. ELVIN LEON MUSTION and LORETTA JEAN MUSTION, his wife, Co-Trustees, Defendants-Appellants
Missouri Court of Appeals, Southern District - SD36788

Instruction Due on Disputed Issue of Fact
Contract promised a commission for obtaining suitable financing, but the parties disputed whether financing obtained was suitable and supported their conflicting allegations with evidence, which supported an instruction on that issue. Suitability is like reasonableness or materiality: it is “general, and required the jury to make a case-specific factual determination whether the 'suitability' condition was satisfied [.]” Accepting the financing obtained did not render irrelevant issues of amount, interest, and repayment period. Circuit court erred in submitting an instruction stating that the financing as suitable was error. Refusing borrowers’ instruction on failure of consideration was not error because borrowers’ allegations did not state that affirmative defense, they stated a failure of performance.   
Equity Financial Resources, Inc. vs. Howard Overman, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83461


Special Verdict Form Useful for Unpaid Commissions
Statute of frauds bars enforcement of certain contracts, but does not apply to a contract that the parties could complete in a year, even if the parties planned for the contract to last longer than a year.  Plaintiffs’ demand for payment was sufficiently “definite as to amount and time” to start the accrual of prejudgment interest by statute. Plaintiffs’ exhibits and testimony specified the commissions at issue specifically for the jury to estimate plaintiffs’ lost profits. Defendants’ objection to jury instructions on one defense did not preserve an objection based on another defense. On a claim for breach of contract, a monetary award was an adequate remedy for past damages but not for future damages, and future damages were the relief due in an action for declaratory judgment, which was ripe because future commission payments were in dispute.  When multiple accounts are at issue, a special verdict form is “permissible and advisable” to detail the amounts due going forward; but the circuit court’s judgment was consistent with the jury’s verdict form and erroneous only as to the date on which past monetary damages end and a declaration of when future damages begin.  
Bassam Khalil, and B-CO, LLC, Respondents/Cross-Appellants, v. 3HB Corporation d/b/a Hale Communications, Appellant/Cross-Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108660 and ED108659


Conviction Related to Alcohol or Drugs Bars Reinstatement
“When the facts are not contested and the issue is one of law, our review is de novo, and no deference is given to the trial court's determination.” On a petition for reinstatement of driving privileges after a ten-year suspension, petitioner must show that the “petitioner has not been found guilty of, and has no pending charges for any offense related to alcohol [,]” which includes non-driving offenses. Petitioner’s guilty plea, to being a disorderly person by intoxication in a public place, negated that element.
John Baker vs. Director of Revenue
(Overview Summary)
Missouri Court of Appeals, Western District - WD83622

Real Estate

Easement By Necessity Not Tried By Consent
Rules provide that the parties try by consent an issue not pleaded when they introduce, without objection, evidence relevant only to an issue not pleaded. Plaintiff pleaded a claim for easement by implication, but the circuit court granted an easement by necessity. Both theories share the element of access available only through defendant’s land, and did not support trial by consent on a claim for easement by necessity, so grant of an easement by necessity was error. Deed’s omission of an easement by title does not defeat the claim for easement by implication, and statutes governing private roads do not apply.  
Matthew J. Buscher, Appellant, v. Mike C. Buscher and Lori Buscher, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108699

Personal Injury

No Sovereign Immunity for MOPERM
Statutes create the Missouri Public Entity Risk Management Fund to be an insurer, and insurers have a duty of good faith claims practice, so the Fund can be held liable for bad faith refusal to settle. Sovereign immunity does not protect the Fund from liability for bad faith because it is not a public entity: though created by statute and having public officials on its governing body, it does not perform any historically governmental function or answer directly to any public official. Statutes expressly provide that monies entrusted to the Fund are for paying claims, that the Fund is subject to suit, and provide no protection for the monies entrusted to the Fund. The Fund’s “after-the fact remittance of policy limits toward partial satisfaction of an excess judgment entered against its insured” does not 'obviate[e]' the duties [that the Fund] owes an insured [.]” Summary judgment for the Fund reversed and remanded to circuit court.
Brenda Estes, As Guardian and Next Friend for Jane Doe vs. The Board of Trustees of The Missouri Public Entity Risk Management Fund In Their Official Capacities, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83764


Hearing Due on Extent of Direct and Cross
Trial counsel decided not to offer a hearsay statement by video, which was inadmissible under exceptions for completeness or state of mind, so that decision did not show that trial counsel was ineffective. Decisions of appellate and trial counsel not to argue that a self-defense instruction was due, when even movant’s evidence was “not consistent with self-defense [,]” did not show that they were ineffective. Additional testimony to support a self-defense instruction, as movant alleges he would have provided, would also not have supported a self-defense instruction. Prosecutor’s reference to prosecutor’s own experience in criminal justice was a comment on the evidence and not a reference to extra-judicial knowledge, so an objection would not have had merit, and trial counsel’s decision not to object did not show that trial counsel was ineffective. Rule does not require an evidentiary hearing on allegations that state no claim for relief. But an evidentiary hearing is due on allegations, unrefuted by the record, that describe grounds for relief. Those include trial counsel’s failure to impeach the complaining witness with a prior inconsistent statement on facts directly related to the central issue, and to elicit further evidence from witnesses as alleged in the motion.  On remand, circuit court shall determine whether trial counsel was ineffective and whether cumulative prejudice resulted.
Timothy S. Kelley vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83185


Undue Influence Shown
In an action to challenge a trust on the issue of mental capacity and undue influence, the proponent of the trust instrument has the burden of proof to show testamentary capacity and the opponent of the instrument has the burden to show incapacity by clear cogent and convincing evidence. Trustees showed that beneficiaries of trust amendment had a confidential relationship with the settlor, received a substantial bequest from the trust, and that the settlor’s physical and mental condition made settlor susceptible to beneficiaries’ undue influence. Declaratory judgment statute creates an action neither equitable nor legal, so the circuit court did not err in submitting fact issues to a jury.
Howard Smith, Darrell Smith, and Howard Smith and Darrell Smith, In Their Capacities as Co-Trustees of the Virginia Marie Smith Revocable Trust (An Inter Vivos Trust Agreement) Executed on June 20, 2006 vs. Roger C. Smith and Lavonne Morrisey
(Overview Summary)
Missouri Court of Appeals, Western District - WD83677 and WD83783