Case summaries for Mar. 19-25, 2021

Appellate | Civil | Commercial | Criminal | Orders of Protection | Post-Conviction | Real Estate | Workers' Compensation

Appellate

Escape Rule Applied to Appellant Nine Years Later
Failure to appear for sentencing constitutes an escape and is grounds to dismiss an escapee’s appeal. “Allowing a defendant to invoke the protections of the legal system after nearly a decade of flouting that system’s authority would encourage criminal defendants to speculate on the chance of reversal while keeping out of the reach of justice” and on remand “evidence and witnesses may no longer be available and memories fade.” Appeal dismissed under the escape rule.
STATE OF MISSOURI, Respondent vs. JAMES W. FREEMAN, Appellant
Missouri Court of Appeals, Southern District - SD36594

Civil

Differing Discovery Practices Yielded Different Results
An order sanctioning a party for discovery violations is interlocutory until final judgment, meaning that the circuit court can change that order in either party’s favor, including to increase the sanction. Appellant did not show prejudice from late production of records because movant already had the opportunity to depose the records’ author, and events in those records were also in other records.
Katarina Hoock, Respondent, v. SLB Acquisition LLC d/b/a Scottrade Center, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108473

Good Cause to Set Aside Default Judgment Not Shown
Rule allows a judgment, interlocutory as to liability on default, and final upon proof of damages. Default judgment is not subject to collateral attack on the sufficiency of the evidence under rule that allows the circuit court to set aside a default judgment on a motion describing a meritorious defense and good cause. As to good cause, movant alleged that movant relied on a co-defendant for a defense in the underlying securities action, but the circuit court was free to disbelieve movant’s affidavit: movant “did not make a mistake, or act inadvertently. He made a deliberate and reckless choice.” Motion to set aside default judgment “is an independent action and not an authorized after-trial motion [,]” so statute allowing attorney fees in the underlying action does not support an award in the action to set aside default judgment.
Timothy G. Vogel vs. Gregory Schoenberg
(Overview Summary)
Missouri Court of Appeals, Western District - WD83861

Commercial

Claims for Misrepresentation, Negligent and Fraudulent, Pleaded
Rule requires plaintiff to plead a claim for fraud with particularity, and approved instructions provide guidance as to those elements, which plaintiff satisfied by describing defendant bank’s representations as to the acceptance and return of an electronic transfer of funds. Electronic transfers of funds are subject to the Uniform Commercial Code exclusively, which grants immunity to banks for processing funds, but processing was not at issue. "Article 4A does not protect against the misconduct alleged here and, therefore, [the] claims are not preempted."
Vulcan Drying Systems, LLC vs. UMB Bank, N.A.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83836

Criminal

Charge of First Degree Burglary Must Specify Intended Crime
When defendant’s testimony minimized his prior convictions, defendant opened the door to cross-examination on “the nature, date, and place of his prior convictions and their resulting sentences [,]” and no error occurred when the circuit court did not sua sponte intervene in the State’s cross-examination. Defendant did not show plain error when the circuit court did not sua sponte intervene in State’s questioning one witness about the veracity of another. On charging an attempted offense, the State need not prove that every element of the attempted offense occurred, only that the attempt occurred, which requires proof of some substantial step toward the attempted offense. A charge of burglary in the first degree includes the element of unlawful entry, of which defendant’s probing of entrances to victim’s residence showed an attempt. But the elements of burglary in the first degree also include committing the burglary with the purpose to commit another specific offense. That other offense—the object of the attempted unlawful entry—the State neither pleaded nor proved. “[T]he State wants this Court to not only supply the [other] offense, but also find the circumstantial evidence in the record to support it.” Court of Appeals reverses conviction for burglary in the first degree, enters judgment finding appellant guilty of trespass in the first degree, and remands for sentencing.
State of Missouri, Respondent, v. Brandon Shane Umfleet, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108591

Complaining Witness as “Victim” Discussed
Appellant did not show that any prejudice occurred when the State referred to the complaining witness as the “victim” only once in voir dire and only once in opening argument. A claim of ineffective assistance of counsel is not available on direct appeal. Challenges not briefed in compliance with appellate rules, and not discernable without abandoning judicial neutrality, are dismissed.
State of Missouri, Respondent, v. Zachary L. Myers, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108903

No Mistrial for Imperfect Redaction
Circuit court barred evidence of an earlier uncharged incident by motion in limine. Accordingly, the State redacted a transcript mentioning that incident, imperfectly, but appellant showed no prejudice from that “gaffe.” Exclusion of evidence is not subject to appeal without an offer of proof.
State of Missouri, Respondent, v. Brian R. Graves, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108768

No Circuit Court Intervention Sua Sponte, But No Plain Error
“[A]n attorney may not directly ask one witness if another was lying” but defendant did not object to such questioning. Circuit court did not sua sponte intervene in State’s questioning sua sponte, and appellant showed no manifest injustice from circuit court inaction, because sufficient evidence supported the verdict.
State of Missouri, Respondent, v. Frederick J. Brown, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108761

Child Endangerment Conviction Affirmed
On multiple counts in a criminal prosecution, “the sufficiency of the evidence on each count is considered independently of the others [,]” so inconsistent findings among verdicts are irrelevant on appeal. The elements of the child endangerment statute include putting a child at substantial risk, which includes danger to a child’s health, which the State showed with evidence of a struggle that appellant initiated: a firearm discharged in a hallway outside a room where the child was. Instructions’ mention of child’s mental health was not plain error. Remanded to circuit court for correction of judgment to reflect the classification of voluntary manslaughter nunc pro tunc.
State of Missouri vs. Joseph Gonsalez
(Overview Summary)
Missouri Court of Appeals, Western District - WD82796

No Objection to Instruction, No Plain Error Review 
In a multiple acts case, verdict directors went to the jury with “no … objections” from defense, so Court of Appeals declines plain error review.
STATE OF MISSOURI, Respondent vs. KENNETH ROBERT DAVIS, Appellant
Missouri Court of Appeals, Southern District - SD36467

Orders of Protection

Order Available for Stalking Only
Statutes governing a full order of adult protection sort the grounds for an order according to relationships. Plaintiff sought relief from stalking, for which the elements include fear of physical danger, which plaintiff neither alleged nor offered evidence on. Plaintiff’s fear of economic harm, and of personal criticism, did not satisfy any element of stalking. Emotional distress is not an element of stalking, though it is an element of abuse by harassment, but harassment is grounds for an order only in domestic cases. 
L.M.M., Respondent, v. J.L.G., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109013

Post-Conviction

DNA Technology Was Available
The elements of a claim for DNA testing include the availability of DNA testing technology before movant’s trial. Whether technology was available to movant depends on a subject assessment specific to movant. Evidence supported a finding that movant made a strategic decision against DNA testing, of the items subject to the motion, before trial. Insubstantial progress in technology does not support serial re-testing. 
State of Missouri, Respondent, v. Fred L. Harris, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108750

Issues Depend on Post-Conviction Counsel’s Status
When appointed counsel files an amended motion late, the circuit court must initiate an inquiry into abandonment, but the record does not show whether counsel was appointed or privately retained. Whether counsel was appointed or privately retained will determine whether the abandonment doctrine applies, which will determine whether the circuit court rules on the initial motion or the amended motion, which will determine the claims at issue. Remanded for that determination.  
Drew Ryland vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83470 and WD83553

Real Estate

Inspection Did Not Negate Fraud Claims
Buyer’s inspection was partial, and buyer relied on a specific representation from seller about water issues. Buyer’s inspector lacked specific expertise in water issues to be on an equal footing with seller’s experience with the property. And seller’s representations about water issues were specific and distinct. Therefore, buyer’s reliance on buyer’s own investigation did not negate reliance on seller’s representations. Arguments not raised in circuit court are unpreserved in the Court of Appeals. Substantial evidence supported the circuit court’s award of damages, as measured by pecuniary loss, and seller’s arguments to the contrary require a re-weighing of evidence that appellate court’s do not perform. Because circuit court found against seller’s counterclaim for tortious interference but was silent as to elements of that claim, the Court of Appeals presumes that the circuit court found against those elements, and the record supports those findings.  Remanded to determine attorney fees on appeal.
Shayna Veazie-Gallant, Respondent, v. Deryl Brown, Jr., Defendant, and Amani Investments LLC, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109037

Too Late to Challenge 1906 Condemnation
Statute of limitations provides that “challenges to condemnation proceedings or claims of adverse possession when no proper condemnation has been effected must be brought within ten years of the City's action [.]” The damage occurs when the taking occurs, so the person damaged is the owner at that time, and whether the City ever paved a proposed street is irrelevant to the time for bringing an action to challenge the taking. Summary judgment for City affirmed.
James Randolph vs. City of Kansas City, MO., et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83921

Workers’ Compensation

Sovereign Immunity Bars Retaliation Claim
Workers’ compensation statutes cover State employees and make the curators of the University of Missouri liable for compliance, but other statutes also extend sovereign immunity from liability for other tortious acts to the curators, including the tort of retaliatory discharge. Appellant did not show that the judgment denying injunctive relief was against the weight of the evidence, because appellant did not address evidence supporting the judgment, and so did not show that such evidence lacked probative value in the context of the whole record.  
Melinda S. Wille, Appellant, v. The Curators of the University of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109082