Case summaries for March 17 - March 23, 2023

Appellate | Attorneys | Civil | Criminal | Employment Security | Environmental | Family | Juvenile | Personal Injury | Post-Conviction 

Appellate

No appeal from no ruling 
An appellate court will not rule on points relied on that address only rulings “that were not made by” the tribunal appealed from. The Labor and Industrial Relations Commission dismissed appellant’s claim for untimely filing, but untimely filing was not the subject of appellant’s points relied on, statement of facts, and argument; all of which address the merits of appellant’s claim. Rules require appellant’s brief to include a table of authorities, but authority means law, which does not describe federal documents that merely provide guidance to States.  
Dorsey Thompson, Claimant/Appellant, v. Special School District of St. Louis County, MO. Educational Facilities Authority and Division of Employment Security, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110852

Attorneys

Attorney suspended for unwanted advances 
The Missouri Supreme Court has the power and duty to protect the public by enforcing the rules of professional conduct, which includes removing attorneys from the practice and deterring future violations. Attorney’s unwanted sexual advances and contacts with vulnerable female clients constituted sexual harassment, a conflict of interests, and prejudice to the administration of justice, by putting attorney’s desires above the clients’ needs. Aggravating factors include attorney’s years of experience, disciplinary history, and continuous violations even after the start of a disciplinary action. Attorney’s “qualified, after-the-fact remorse is disingenuous. Accordingly, this Court finds insufficient mitigating factors to lessen the discipline imposed.” Suspended, with no credit for 15 months of interim suspension, with leave to apply for reinstatement for 12 more months.  
In re: Dan K. Purdy, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99818

Civil

Dissolution of permanent injunction depends on equities  
An earlier permanent injunction in favor of appellant landowners restricted neighboring respondent’s shooting range activities. A later statute purported to bar any such injunction and, based on the changed law alone, respondents sought to dissolve the permanent injunction. To dissolve a permanent injunction constitutes an attack on a final judgment, which rules narrowly allow when a judgment is “no longer equitable [.]” Contrary to previous case law, equity does not turn solely on a change in law; and, even if it did, neither that consideration nor any other appears in the circuit court’s judgment or respondent’s pleadings. The pleadings alleged facts relevant to the equities, but respondent did not establish such facts in respondent’s list of undisputed facts, and they remain in dispute.  
Glendale Shooting Club, Inc., A Missouri Non-Profit Corporation, Respondent, vs. William K. Landolt and Jeri F. Landolt, Appellants. 
(Overview Summary) 
Supreme Court of Missouri - SC99701

Forum non conveniens inapplicable 
Though plaintiff’s choice of forum has jurisdiction and is a lawful venue, a circuit court may dismiss under the doctrine of forum non conveniens, on a “clear showing” of “weighty reasons” related to vexation, oppression, and harassment of defendant. Defendant denied plaintiff’s allegations, so the petition does not eliminate the need for evidence in support of a motion to dismiss. The nexus between the allegations and the chosen forum need not be substantial; the location of defendant’s registered agent, and an in-State place of business are enough for a Kansas corporation. Missouri residence for purposes of jurisdiction and venue is also residence for purposes of forum non conveniens. Defendant showed no burden on the circuit court and no greater convenience in Kansas.  
Mary Crawford and Jason Crawford vs. Family Tree, Inc. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85628

Criminal

Instruction on necessity defense not required 
Circuit court must give the jury an instruction on any theory that the defendant requests if the evidence supporting that instruction is substantial. Substantial evidence did not support an instruction on the defense of necessity because the evidence, even if assumed to be true, did not satisfy any elements of the defense. While resisting an eviction from a residence, and fearing police violence, defendant appropriated a police car and led police on a high-speed chase at up to 100 mph through city streets while handcuffed and on methamphetamine. On charges of first-degree tampering and resisting arrest, those facts do not support an instruction on necessity. Circuit court did not err in denying an instruction on necessity.  
State of Missouri, Respondent, vs. Jason Michael Hurst, Appellant. 
(Overview Summary) 
Supreme Court of Missouri - SC99799

Jury waiver procedure explained 
Constitutional provisions protecting the right to a jury trial require that "the waiver is constitutionally sufficient only if the record shows with unmistakable clarity that the waiver was made by the defendant himself knowingly, voluntarily, and intelligently; in other words, the record must show '[a] fully informed and publicly acknowledged consent of the [defendant]' and '[a] personal communication of the defendant to the court that he chooses to relinquish the right [to a jury trial].'' The preferred procedure is by detailed colloquy on the record with defendant but waiver may have other support in the record. Defense counsel’s request for a bench trial is not determinative, even in defendant’s presence when defendant makes no objection. But defendant’s exposure to the jury system also suggests that he understood his right to a jury trial, yet he never argued any violation of that right—even on the circuit judge’s post-judgment questioning, and even on appeal. No plain error occurred when the circuit court conducted a bench trial. Conviction affirmed. Production of, and testimony about, a video recording supported an inference that foundational requirements for admissibility were satisfied.  
State of Missouri, Respondent, vs. Jacob Hilbert, Appellant. 
(Overview Summary) 
Supreme Court of Missouri - SC99747

No plain error in citing wrong statute 
Rules require an information to set forth the statutes violated and the statutes setting forth the sentences, but invalidate an information only on prejudice to defendant's substantial rights, like notice of the offense charged or ability to prepare a defense. Older statute and newer statute set forth the same elements for predatory sexual offender status, so the Court of Appeals declines plain error review of an information that cited the wrong one of those two. Rules allowed denial of defendant's motion for continuance, solely for lack of a written version, because defendant did not have the State's consent and did not show good cause.
STATE OF MISSOURI, Plaintiff-Respondent v. DAVID MICHAEL KING, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37354

Employment Security

Dismissal affirmed reluctantly 
After receiving a series of decisions that included agency error, claimant “did everything a reasonable individual would do under the circumstances here.” “[Appellant] consistently called the [agency], remaining on hold for hours—sometimes for so long that the call would drop.” “This Court has previously remarked that ‘it is not difficult to imagine the confusion’ generated by the often ‘unnecessarily complicated’ unemployment benefits system.” Appellant did not timely file an administrative appeal from one of the decisions. Statutes allow a 30-day extension for good cause shown, but not for the decision that claimant appealed. The Court of Appeals must affirm the dismissal of appellant’s untimely administrative appeal, but that “does not make it fair.” 
Smaila Mujakic, Appellant, vs. Division of Employment Security, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110805

Environmental

No local control of CAFOs 
Counties have no authority that is beyond the control of the General Assembly. Statute bars local ordinances, relating to confined animal feeding operations, if such ordinance departs from statutes or regulations. That statute does not violate Missouri Constitution’s Clear Title provision, because the title of the bill enacting it was not inaccurate; Right-to-Farm provision and provisions for local health agencies because both provisions allow further legislation restricting those rights; and Retrospective Laws provision because the statute only bars the enforcement of ordinances after the statute’s effective date. To effect that bar, no further pre-emptive provision is necessary, and local ordinances are void under the statute. Multifarious points relied on, even citing one constitutional provision, preserve nothing for review.  
Cedar County Commission, et al., Appellants, vs. Governor Michael Parson, et al., Respondents. 
(Overview Summary) 
Supreme Court of Missouri - SC99488

Multiple penalties affirmed 
Appellate briefing rules require appellant to describe how appellant preserved error, which requires a citation to the record. Clean Water Commission may assess a penalty for past violations. Statute of limitations for assessing penalties began, not with an earlier inspection finding no point source of contamination, but with a later inspection showing a violation of statutes. Statutes provide multiple penalties for multiple violations of clean water standards, and violations that “affect separate bodies of water, even if on the same day, are plainly independent violations.” Operating an unlicensed source and causing contamination are separate violations of statutes because those statutes describe different conduct. Clean Water Commission correctly applied its regulation on extended violations and violations continuing after notice.   
Sultany Trucking, LLC and Sultany Farms, LLC vs. Missouri Clean Water Commission and Missouri Department of Natural Resources 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85445

Family

Parenting time need not be equal 
An against-the-weight-of-the-evidence challenge to a circuit court’s ruling requires appellant to cite all evidence supporting the ruling, and failure to do so robs the challenge of analytical value. Statute defines joint physical custody as awarding to each parent “significant, but not necessarily equal,” time and appellant did not show that his time ordered was insignificant. Child support on that basis was not error.  
O.H.B. and E.K.B., by Next Friend S.M.B., and S.M.B., Individually, Appellants, v. L.Y.S., Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110427

Juvenile

No standing to appeal juvenile ruling 
Any right to appeal a judgment exists only by statute. The general statute, allowing any aggrieved party to appeal from a final judgment, does not apply when a specific statute governs appeal from a specific judgment. The judgment in a juvenile adjudication is subject to appeal under a specific statute that does not allow temporary custodians or prospective adopted parents, like appellants, to appeal on their own behalf. Appeal dismissed.  
In the Interest of: L.N.G.S., Juvenile; Juvenile Officer, Respondent, and Missouri Department of Social Services, Children's Division, Respondent, vs. A.S. and A.S., Appellants. 
(Overview Summary) 
Supreme Court of Missouri - SC99786

Personal Injury

Work product protections explained 
Rules governing discovery provide privilege for attorney work product, both ordinary work product or opinion work product; and, for the latter, compelling production requires “a far stronger showing of necessity and unavailability by other means” than for the former. But as to both, a party waives the privilege on disclosure to any adversary, including an adverse party in an earlier and unrelated action. Preliminary writ in prohibition, barring an order to compel production, quashed.  
Kristine Hill and Dennis Hill, Relators, vs. The Honorable Stanley J. Wallach, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99650

Medical malpractice action served too late 
Rule and statute set the time for service of process after the filing of a petition. Rule generally requires service “promptly” in any action. Statute governing service of process in negligence actions against a health care provider specifically requires dismissal unless service occurs within 180 days. Those provisions do not conflict, so no election between them is possible, and plaintiff failed to comply. Preliminary writ of mandamus, requiring dismissal of the action, made permanent. 
SCOTT J. BRICK, D.O., and LAKE REGIONAL HEALTH SYSTEM, Relators v. THE HONORABLE AARON KOEPPEN, Respondent 
Missouri Court of Appeals, Southern District - SD37767

No employer duty to protect employee from third-party criminal acts 
No one has a duty generally to protect anyone else from a third person’s criminal act. Such a duty can arise when a property owner knows of such a danger on the property, but plaintiff did not make that claim, and the record does not support it. Another exception arises in a special relationship “in which a party entrusts himself to the protection of another and relies upon that person to provide a place of safety.” The employment relationship is not per se such a special relationship. Plaintiff did not show that protection from third-party criminal acts is not part of an employer’s non-delegable duty to provide a safe workplace. On appellant’s claim of negligence, summary judgment for defendant affirmed.  
Debbie M. Earley, Appellant, v. Mary V. Dunn, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110514

Post-Conviction

Law of the case does not determine timely filing 
The law of the case doctrine provides that an appeal bars re-litigation on remand or further appeal. But that doctrine is subject to judicial discretion on several factors, while timely filing of an initial motion is a condition of relief, and courts must enforce that condition. The timeliness of the initial petition was never litigated or challenged in several appeals. “[T]he mandatory time limit imposed by [rule] outweighs the law-of-the-case doctrine such that this doctrine does not preclude the [circuit] court from considering the timeliness of [the initial] motion on remand in accordance with this opinion.” Timeliness depends on the date when movant was first delivered to the Department of Corrections, and for what purpose, which was never the subject of any finding of fact based on evidence of record. The Missouri Supreme Court remands the case to circuit court for that determination.     
Wesley Hatmon, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99591

Allocution sufficient 
When defendant pleaded guilty, defendant waived all defenses, including during allocution. Allocution may include arguments in mitigation of sentencing, which the circuit court heard, in addition to evidence at the sentencing hearing. Defendant suffered no deprivation of due process so the circuit court did not err in denying the motion to vacate the judgment.  
Lakeith R. Courtney vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85114

Counsel must investigate defendant’s mental health 
On a claim of ineffective assistance of plea counsel, based on failure to investigate mental capacity, movant must show prejudice resulting from plea counsel’s substandard performance. As to performance, the portion of movant’s mental health history known to plea counsel was enough to impel counsel of ordinary skill to investigate movant’s mental capacity. Prejudice means that, but for the substandard performance, movant would have gone to trial. “[T]o allow an incompetent person to plead guilty is a per se due process violation,” so the quantum of proof necessary to support a finding of prejudice is only a reasonable probability that movant would have gone to trial, which is less than a preponderance of evidence. Movant’s history of mental illness met that standard, so the circuit court erred in denying relief, and the Court of Appeals remands for withdrawal of the guilty plea and a mental examination.  
Aaron Hecker vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84950

No hearing necessary 
Selecting evidence for presentation to a jury is a matter of trial strategy and, if sound, is subject to virtually no challenge. Trial “counsel is not ineffective for failing to present cumulative evidence” like medical records already offered by the State, especially when those records show additional injuries to the victim, which only helps the State. Objections to closing argument are also a matter of trial strategy, and objecting to an argument supported by the evidence would have been meritless, which trial counsel is never required to do. No hearing was necessary to deny relief without a hearing.  
Leland Dent, Appellant, v. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110430