20
March
2020
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07:37 PM
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Case summaries for Mar. 13 - Mar. 19

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 | Employment | Evidence | FamilyPersonal Injury | Probate | Tax | Workers' Compensation

Appellate

Mistrial Is Not a Final Judgment
Except as provided by statute, appellate review is unavailable for a judgment before the judgment is final. A final judgment is a judgment that disposes of all counts. That may occur by severance of some counts from others in the same charging instrument. But mistrial of a count is not severance, so mistrial of one count does not make a judgment as to other counts final.
State of Missouri, Respondent, vs. Jeffrey A. Waters, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC97910

Compliance With Judgment Moots Appeal
A “party may be estopped from taking an appeal by performing acts after rendition of the judgment which are clearly inconsistent with the right of appeal.” So when appellants surrendered property that was the subject of an unlawful detainer action, they mooted the judgment against them in that action.
EDWARD A. RILEY, II, and NATALIE D. RILEY, Plaintiffs-Respondents v. RANDALL ZOLL and LANDALL ZOLL, Defendants-Appellants
Missouri Court of Appeals, Southern District - SD36099

Weight-of-the Evidence Argument Needs Facts
The conditions that caused circuit court to exercise its authority included a no-contact order against appellant and appellant’s refusal to accept services that might adjust parental conditions. Those conditions continued after a year, the circuit found, and were unlikely to change soon enough to reunite the family. That finding was the object of appellant’s appeal but appellant did not show that the weight of the evidence was against that finding. Policy arguments, another party’s motion for continuance, and a pending related criminal action, do not support a weight-of-the-evidence argument. Appellant’s defense was actual innocence, but nothing showed that the fact-finder drew an adverse inference, so appellant could not show that exercising his right against self-incrimination weighed against the finding.
In the Interest of S.S., LAWRENCE COUNTY JUVENILE OFFICE, Respondent v. J.R.W.S., Appellant
Missouri Court of Appeals, Southern District - SD36180

Criminal

No New Trial On Newly Discovered Evidence
The elements of murder in the first degree include deliberation, shown by bringing a firearm to the scene of the crime, choosing to use it, following through on that choice, and fleeing the scene. An unpreserved constitutional challenge is subject to review only for plain error, which did not occur when circuit court sentenced 18-year-old appellant to life without parole, because that sentence is statutorily authorized and not unconstitutional. Grounds for impeaching a verdict include juror statements showing bias against ethnicity or religion, but neither of those are implicated in statements about city of defendant’s residence. On a motion for new trial based on newly discovered evidence, the elements include a likely different outcome. The likelihood of exoneration on hearsay, that appellant’s confederate confessed, depends on admissibility of that hearsay, which depends on whether the confession: occurred spontaneously to a close acquaintance soon after the offense, has corroboration in other evidence, and is against declarant’s penal interest.
State of Missouri, Plaintiff/Respondent, vs. Xavier Perkins, Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107622

Judgment Modified After Violations of Release Conditions
When appellant violated agreed conditions of a 120-day program, circuit court had authority to modify its judgment, and need not allow movant to withdraw his guilty plea first. The hearing resulting from an order was not a critical stage of the criminal action, and movant admitted his violations, so movant had no right to relief based on ineffective counsel.
JOHN R. THOMAS, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD35994

Employment

Disability Discrimination Award Affirmed
Statutes bar employment discrimination based on disability. Evidence supported a finding that appellant fired respondent, because respondent could not move at the knees the way respondent demanded, and that respondent’s disability did not stop respondent from executing her essential duties in housekeeping. Evidence also supported a finding that appellant “fail[ed] to maintain contact and participate in good faith with the process” of finding another job for respondent was for a jury to decide. The record relevant to appellant’s unpreserved claim of judicial estoppel is sufficient for plain error review. The elements of judicial estoppel include “truly” inconsistent theories in different proceedings. Respondent’s claims for disability discrimination and Social Security Disability were not inconsistent, because the laws differ, and because losing her job cost respondent her medical insurance, which caused her arthritis to worsen, until she could no longer work. Remanded for circuit court to determine the amount of attorney fees due for appeal.
Tammie McKinney, Plaintiff/Respondent, vs. Mercy Hospital St. Louis, Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107400

Claim Stated Under FCRA
On a motion to dismiss, when both parties submit matters outside the pleadings, they acquiesce in circuit court, treating the motion under the standard for summary judgment. Federal Consumer Reporting Agencies Act requires employers to give notice to job applicants before using consumer information but provides a claim for injuries that are particular and concrete. That does not include procedural violations without real harm but includes damage to reputation and delays in hiring from a false report. Abandoned counts and multifarious points preserve nothing for review.
Rebecca Courtright, et al vs. O'Reilly Automotive
(Overview Summary)
Missouri Court of Appeals, Western District - WD82684

Evidence

Propensity Evidence Analyzed
On a charge of a sexual offense, the Missouri Constitution allows evidence of prior bad acts as propensity evidence to prove guilt. Considerations that determine admissibility in any one case depend on the case, and State’s effective use of the evidence is not a factor. Contrary evidence does not diminish the propensity evidence’s probative value. Exhibits duplicated testimony in part, but also added information, so they did not constitute improper bolstering. Circuit court did not abuse its discretion in excluding impeachment evidence of previous false allegations.
STATE OF MISSOURI, Respondent v. MICHAEL D. BURGE, Appellant
Missouri Court of Appeals, Southern District - SD35795

Family

Parental Rights Terminated On Failure to Rectify
Appellant admitted in circuit court that the conditions that caused the circuit court to exercise its authority continued to exist for over a year and will continue to exist indefinitely. Those facts are grounds for termination of parental rights so the circuit court’s judgment, terminating appellant’s parental rights, was not against the weight of the evidence. Because a single ground for termination of rights requires affirmance of the judgment, the Court of Appeals need not examine the other grounds.
IN THE INTEREST OF: S.S., a child under seventeen years of age LAWRENCE COUNTY JUVENILE OFFICE, Petitioner-Respondent vs. B.S., Respondent-Appellant
Missouri Court of Appeals, Southern District - SD36181

Personal Injury

Landlord Not Liable For Bite From Tenants’ Dog
Defendant may be liable for the bite of a dog with known vicious tendencies if defendant owned, possessed, or harbored the dog. To harbor the dog means more than to own the land on which the dog lives; even with the right to exclude the dog from the property, it requires proof that defendant took the dog into defendant’s household. Defendant established that they had no “control over [tenant]’s dog(s), the dog pen, the ropes or chains upon which the dog(s) were kept, or any other aspect of the property related to [tenant]’s dog(s)[.]” Plaintiff did not raise a genuine dispute as to that fact by establishing that defendants were tenant’s landlords. Summary judgment for defendants affirmed.
MINOR A.T., by her natural father, and Next Friend R.T., Plaintiff-Appellant v. ROGER and KIMBERLY SATTERFIELD, Defendants-Respondents and STACEY WYATT, Defendant
Missouri Court of Appeals, Southern District - SD36351

Probate

Safe Harbor For Testing Trust’s No-Contest Clause Discussed
The purpose of a trust is to carry out the settlor’s intentions, including what conduct of a beneficiary will cause forfeiture, like any litigation described in a no-contest clause. Statutes provide an action for an interlocutory determination, subject to appeal, of whether a circuit court will enforce a no-contest clause. Those statutes “provided a ‘safe harbor’ in which the Beneficiary should have invoked a challenge to the enforceability and applicability of the no-contest clause to his claims for breach of trust and removal.” On trustee’s counterclaim for declaratory judgment, filed in beneficiary’s action for breach of trust and removal of trustee, Court of Appeals affirms summary judgment for trustee and against beneficiary.
Samuel S. Knopik, Appellant, vs. Shelby Investments, LLC, Respondent.
(Overview Summary)
​Supreme Court of Missouri - SC97985

Tax

Resale Under Sales Tax Differs From Resale Under Use Tax
Supplier sold furniture to a hotel, which sold its guests the right to use the furniture. Statutes impose a tax on the in-State sale of tangible property at retail but exclude any sale for resale. Use tax statutes define resale to include transfer of the right to use, use tax statutes do not apply to the sales tax. Sales tax statutes define resale by passage of “title or ownership [,]” so sales of furniture were subject to sales tax.
DI Supply I, LLC and its Individual Members, Appellants, vs. Director of Revenue, Respondent.
(Overview Summary)
​Supreme Court of Missouri - SC97932

Workers’ Compensation

Injury Did Not Arise Out of And In the Course of Employment
Statutes provide compensation for claimant’s accidental injury that arises out of and in the course of employment, meaning that the accident is the prevailing factor in the accident, and “comes from a hazard or risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.” Claimant testified that the workplace floor was dangerous, but the Labor and Industrial Relations Commission expressly found that testimony not credible. When “the only risk source in this matter was that of walking, one to which [claimant] would have been equally exposed in normal non-employment life [,]” resulting injury did not arise out of and in the course of employment.
Maral Annayeva, Appellant, vs. SAB of the TSD of the City of St. Louis, Respondent, and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
(Overview Summary)
​Supreme Court of Missouri - SC98122 consolidated with SC98124

Misconduct Not Shown
Purpose of temporary total disability is to cover claimant’s healing period until resuming work or reaching maximum medical improvement. Disqualifications include post-injury misconduct, which does not include absence due to injury, so it cannot include failure to report an absence due to injury.
Jeffrey Hicks, Appellant, v. State of Missouri, Department of Corrections and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108023

Increase In Award Rejected
Statute allows an alteration to an award but, an award does not include a compromise settlement, so the Labor and Industrial Relations Commission correctly dismissed an action seeking such modification.
CHARLES RITCH, Claimant-Appellant v. PROFESSIONAL TRANSPORTATION, INC., Employer-Respondent and TREASURER OF THE STATE OF MISSOURI, CUSTODIAN OF THE SECOND INJURY FUND, Respondent
Missouri Court of Appeals, Southern District - SD36435