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Case summaries for March 15 - March 21, 2024


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 | Criminal | Evidence | Family | Real Estate


Briefing defects result in dismissal
Rules of appellate procedure protected the neutrality of appellate courts. Appellant’s statement of facts was argumentative and lacked references to the record. Appellant’s points relied on were multifarious. Appellant’s argument cited multiple standards of review and lacked citations to supporting authority. Such briefing preserved nothing for review and invited the Court of Appeals to construct arguments for the appellant under the guise of interpreting appellants’ claims, so the Court of Appeals dismissed the appeal.
(Overview Summary)
Monica Jackson, Appellant, vs. Annie Sykes, Respondent.
Missouri Court of Appeals, Eastern District - ED111565

Frivolous appeal sanctioned
Rule provided that some rules of civil procedure applied to an action in probate and other rules were subject to application by circuit court order. The circuit court never ordered the rule on setting aside a judgment applicable to the parties’ action and, even if it had, that rule is no substitute for an appeal and does not initiate a separate action. Nevertheless, appellant filed a motion under that rule and, on denial, filed an appeal. That appeal was actually a challenge to earlier judgments for which the time for appeal long ago expired. Rule applied equitable principles to sanction frivolous appeals with an award of attorney fees. “[A]ll prior efforts to dissuade [appellant] from continuing to attempt to litigate issues that have been finally decided have proven ineffective, [so] sanctions are appropriate in this matter.” The Court of Appeals dismissed the appeal and remanded the matter to circuit court for a determination of the attorney fees amount due.
(Overview Summary)
Anna Emealia Brown vs. Richard Lotman Brown
Missouri Court of Appeals, Western District - WD85817



Collateral attack rebuffed
In an action for dissolution of marriage, earlier judgments assigned certain expenses to appellant, and a later judgment enforced those judgments against appellant. Appellant charged that the earlier judgments contained errors—lack of limiting language—so the circuit court had no jurisdiction to enforce them in the later judgment. A rule authorized circuit court to grant relief from a judgment void for lack of due process or jurisdiction, so jurisdiction is grounds for a permissible collateral attack on a judgment. But “the Missouri Constitution specifies only two jurisdictional limits on a court’s power to act: personal jurisdiction and subject matter jurisdiction.” Jurisdiction is unaltered by error, and error not appealed is waived, so no error in the earlier judgments caused any error in the later judgment; and appellant’s arguments are forbidden collateral attacks on finality. And another rule required any error in the earlier judgment to appear in a motion to amend, which appellant did not file as to the earlier judgments, so appellant did not preserve the errors. Whether the later judgment awarded more than the earlier judgments allowed, appellant did not raise in a motion to amend, and so did not preserve. Appellant also failed to gather all evidence supporting the later judgment on that point. Appellant did not show that the later judgment was against the weight of the evidence.
DEANNA (HALEY) BROWN, Petitioner-Respondent v. JOHN PATRICK HALEY, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD37223

Long-arm statute inapplicable
A motion to dismiss for lack of personal jurisdiction may include matters outside the pleadings, like affidavits or evidence presented at a hearing, any of which the circuit court could believe or disbelieve. The plaintiff had the burden of proof to show that the circuit court had personal jurisdiction. The personal jurisdiction of circuit courts, assuming that the minimal contacts existed for constitutional purposes, was set forth in the long-arm statute. The long-arm statute attached personal jurisdiction to a claim that arose from any of the following conduct by defendant in Missouri: conducted business, made a contract, or committed a tort. Plaintiffs alleged that defendant sent communications from Colorado to Missouri, including a contract and offers to purchase property. But plaintiffs did not allege that anyone accepted any offer in Missouri. “For purposes of the long-arm statute, a contract is made where acceptance occurs.” Plaintiffs alleged that defendant defamed them when defending against their ethics complaints against defendant in Colorado, so the defamation did not arise from the contract activities. And the fact that plaintiffs were in Missouri when they heard about defendant’s defense to the ethics complaint did not show that any defamation occurred in Missouri. “While the reach of Missouri's long-arm statute is indeed long, it is not that long.” The circuit court did not err in granting defendant’s motion to dismiss.
M. SCOTT MONTGOMERY, Appellant v. SHERRI HOPPER, Respondent And RUSSELL TURNER, Appellant v. SHERRI HOPPER, Respondent
Missouri Court of Appeals, Southern District - SD38183



Multiple change of judge case transferred
Rule provides for an automatic change of judge, and any initial motion for change of judge, however designated, was deemed to be under that rule. The parties sought and received a change of judge from first judge to second judge. Second judge retired, which resulted in re-assignment of the case to third judge. Defendant sought and received a change of judge from third judge. The third judge applied to the Supreme Court for, and received, an assignment of fourth judge. The parties sought re-assignment from the fourth judge back to the third judge and agreed to a writ of prohibition on the fourth judge from the Court of Appeals. The Court of Appeals issued its preliminary writ of prohibition but had no authority to assign circuit judges as the Supreme Court did. The Court of Appeals transferred the case to the Supreme Court and made permanent its preliminary writ of prohibition pending the Supreme Court’s ruling.
Missouri Court of Appeals, Southern District - SD38412

Actual innocence not shown for habeas corpus
A writ of habeas corpus would issue to remedy an unlawful deprivation of petitioner’s liberty. On a petition for a writ of habeas corpus, the petitioner had the burden of proof, including overcoming the procedural bar against claims that were or should have been raised earlier. Petitioner could overcome some procedural bars with new evidence unavailable at trial and showing actual innocence, but not claims already denied on direct appeal or post-conviction relief. Trial counsel was not ineffective because of a conflict of interest for receiving a flat fee when additional litigation separate expenses were available and trial counsel pursued a reasonable trial strategy. Ineffective post-conviction counsel is not a claim. The elements of first degree murder include deliberation, so negating deliberation would show actual innocence. But petitioner’s supporting affidavits were “inconclusive [,]” and merely “suggest[ed]” impaired judgment, while petitioner’s admissions at trial showed methodical deliberation. The United States Constitution’s Eighth Amendment barred capital punishment for persons who did not meet the penological goals supporting capital punishment like deterrence and retribution. But petitioner’s post-sentencing personal growth did not negate the deterrent and retributive value of petitioner’s execution, and is grounds for clemency only, which is not within the courts’ jurisdiction. The Supreme Court denied habeas corpus relief.
(Overview Summary)
State ex rel. Brian Dorsey, Petitioner, vs. David Vandergriff, Respondent; and In re Brian Dorsey, Petitioner, vs. David Vandergriff, Warden, Potosi Correctional Center, Respondent.
Supreme Court of Missouri - SC100388, SC100486

Credibility is for circuit court
Even gross inconsistencies in victim testimony are reserved for the finder of fact’s credibility determinations. “The jury was well aware of all the inconsistencies and credibility issues [defendant] raises on appeal, and the jury was in the best position to resolve these issues. [An appellate court] will not second-guess the credibility determinations of the jury.” Defendant did not facially show that the State’s argumentative cross-examination was outcome-determinative, given the victim’s direct testimony, so the Court of Appeals declines plain error review. The State’s closing argument—that “maybe we wouldn't be here” if defendant were stopped earlier—was improperly inflammatory, but defendant did not show that it was outcome-determinative, so defendant did not show plain error. Where no errors exist, no cumulative error could exist.
(Overview Summary)
State of Missouri vs. Jacob-Charles S. Weston
Missouri Court of Appeals, Western District - WD85819


Recollection refreshed before trial
A Miranda warning was due during a custodial interrogation but sitting on the ground constituted a mere Terry stop, not custody, which a law enforcement officer could prolong as reasonably necessary to resolve whether criminal activity has occurred. Incriminating statements, and the refusal of an alcohol test, made during the stop were therefore admissible without a Miranda warning. In testimony before trial, a witness stated that he lacked independent recollection without reference to a report so, at trial, defendant objected to any testimony from the witness. But the witness had reviewed his report before trial, so the witness’s testimony was admissible without using the report as past recollection recorded or present recollection refreshed. “When a witness uses a document to refresh recollection before testifying, the testimony is based on personal recollection ‘not then aided and assisted by . . . notes in hand.’” The circuit court minimized prejudice from evidence of prior revocation by reading a short statement about it to the jury. That and other evidence supported findings of guilty on charges of driving while intoxicated and driving while revoked including the required mental state.
STATE OF MISSOURI, Plaintiff-Respondent vs. JOSEPH P. SALSMAN, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37358



Parental rights not terminated
In an action to terminate parental rights, the juvenile officer had the burden of proof, and the respondent had no burden of proof, so a judgment for respondent needed no support in substantial evidence, though substantial evidence did support the judgment. The judgment could terminate parental rights only on grounds pleaded in the petition, so the circuit court did not err in denying termination on grounds not pleaded, and the circuit court’s application of the facts to the law negated any showing of prejudice. Events after the petition’s filing date were relevant and substantial evidence supported the circuit court’s finding that the circumstances alleged in the petition had changed. That conclusion mooted appellate review of whether termination was in the child’s best interests.
(Overview Summary)
In the Interest of: K.A.L.; Juvenile Officer vs. H.L.
Missouri Court of Appeals, Western District - WD86314 Consolidated Case: WD86374

Real Estate

Quiet title action expands easement’s boundaries
Statute provides that boundary disputes are subject to resolution through an action to quiet title. In an action to quiet title, statute of limitations started the time for filing with plaintiff’s possession, or the possession of someone else under whom plaintiff claimed title. The time did not start when the possessor first acquired title. Therefore, when the current possessor filed the action, the action was per se timely. The circuit court did not err in denying a motion to dismiss and a motion for directed verdict on the basis of timely filing. Statute allowed circuit court to widen a private road along plaintiffs’ easement upon a showing of strict necessity, which plaintiffs accomplished with evidence that the current width restricted their access to goods and services, especially emergency services. Expert testimony supported the judgment’s expansion and placement of the private road.
(Overview Summary)
Carolyn Casteel, Et Al. vs. Charles Lammers, Et Al.
Missouri Court of Appeals, Western District - WD86164

Circuit court can’t comment on evidence
In a criminal action tried to a jury, circuit judges were generally barred from commenting on the evidence, and from making findings of fact and conclusions of law, other than through approved instructions. The circuit court did not err in rejecting defendant’s offer of proof containing arguments of law. Framed as a claim of evidentiary error, defendant’s point relied on cannot transform into a claim of instructional error. And defendant did not offer the instructions that, he claimed on appeal, were required—including in his self-defense instruction under the Castle Doctrine—so any omission of language from that instruction was invited error. The written judgment’s deviation from the spoken sentence constituted plain error, so the Court of Appeals remands the judgment to conform the judgment as written to the judgment as spoken.
(Overview Summary)
State of Missouri, Respondent, vs. James D. Cummings, Appellant.
Missouri Court of Appeals, Eastern District - ED111089