08:49 AM

Case summaries for March 22 - March 28, 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 | DWI | Employment | Family | Personal injury | Post-conviction


Error unpreserved
In a juvenile action, a statute required the circuit court to ascertain whether all parties had received service of process, but a party claiming error still had to raise the error to preserve the error. If the party had previously presented the error to the circuit court in a bench trial, no motion for a new trial or to amend judgment was necessary to preserve error. But appellant raised error to the circuit court neither before nor after judgment. Unpreserved error was subject to review only for plain error, which appellant did not seek, and an appellate court will not undertake sua sponte in a civil action. Judgment terminating parental rights affirmed.
IN THE INTEREST OF: K.C.G., a child under seventeen years of age. B.L.M., and C.T.A.M., and JASPER COUNTY JUVENILE OFFICE, Petitioners-Respondents vs. M.P.G., Respondent-Appellant
Missouri Court of Appeals-Southern District - SD38180

Record on appeal shows no evidence of untimely filing for administrative review
Statutes governing the Labor and Industrial Relations Commission provided that the time to file an administrative appeal with an Appeals Tribunal started with notice transmitted by an email. The Appeals Tribunal dismissed claimant’s administrative appeal for untimely filing, the commission affirmed that decision, and claimant sought judicial review. Judicial review could not exceed the record on appeal as certified by the commission, so affirming the commission required substantial and competent evidence supporting the dismissal in the record. But the record omitted the emails that purportedly started the time for claimant to file with the Appeals Tribunal. “Claimant requested the Commission supplement the record with these emails, and this Court so directed the Commission, but the Commission failed to supplement the record with the . . . emails.” That omission raises a presumption that such evidence was unfavorable to the commission. For lack of substantial and competent evidence supporting the dismissal, the Missouri Court of Appeals reverses the dismissal, and remands the administrative appeal to the Appeals Tribunal for a ruling on the merits.
(Overview summary)
Stacey L. Boyd, Appellant, v. Division of Employment Security, Respondent.
Missouri Court of Appeals-Eastern District - ED111479



Dismissal as discovery sanction affirmed
“[A]n evasive or incomplete answer is to be treated as a failure to answer.” Circuit courts had an affirmative duty to expedite litigation, including by enforcing discovery, for which rules authorized sanctions on a non-compliant party. A party who has shown contumacious and deliberate disregard for a circuit court’s authority and prejudiced an opposing party was subject to sanctions including dismissal. Dismissal was not an abuse of discretion when “after nearly a year of waiting, [defendant] still did not have complete responses to interrogatories nor any response to their request for production of documents.”
(Overview summary)
Brandie C. Noble vs. L.D. Enterprises, Inc.
Missouri Court of Appeals-Western District - WD86378



No second mental exam necessary
Statutes barred the trial, sentencing, or conviction of any person who lacked the “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [or] a rational as well as factual understanding of the proceedings against him.” On that issue the defendant had the burden of proof, and passed a mental examination under that standard, and the circuit court denied the defense’s motion for a second mental examination. The motion had no support in any evidence and the circuit court did not err in denying the motion. To enter judgment and sentence for a greater offense, when the jury had found defendant guilty of a lesser included offense, constituted plain error. On that count the Court of Appeals vacated the conviction and remanded for re-sentencing.
(Overview summary)
State of Missouri vs. Steven R. Wilkinson
Missouri Court of Appeals-Western District - WD86077

Hearsay from child victim okay
Statute provided that an out-of-court statement of an alleged child victim was admissible on a foundation that included reliability. Reliability depended on the totality of circumstances. Circumstances included a video recording of the statement during an interview by a professional investigator under the observation of a law enforcement officer soon after the offense. The precise protocols for the interview were not an element of the foundation for admissibility. No plain error occurred when the circuit court admitted the video.
(Overview summary)
State of Missouri vs. Kenneth Dewayne Pendergraft
Missouri Court of Appeals-Western District - WD85913



Conviction not shown
Statute required the director of revenue to suspend the license of any driver who accumulated a specified number of points in a specified period. The statute also provided for judicial review in which driver’s prima facie case shifted the burden of proof to the director. The director’s proof could include documentation of a criminal conviction, but the director’s documentation mentioned only a charge and a sanction, not a crime and a conviction. Judgment sustaining revocation of driver’s license reversed and remanded with directions to reinstate driving privileges.
(Overview summary)
Rachel Lynn Sanning vs. Director of Revenue, State of Missouri
Missouri Court of Appeals-Western District - WD85886



Summary judgment affirmed in discrimination case
Statutes barred discrimination based on age and religion in employment, barred retaliation for opposing such discrimination, and provided a private action for damages as a remedy for discrimination and retaliation. In discrimination and retaliation actions, statutes provided that a burden-shifting analysis was “highly persuasive” in the absence of direct proof, and that federal case law applied. Affidavits were generally inadmissible at trial as hearsay but were specifically admissible in support of a motion for summary judgment by rule. Rule required only that affidavits were “based on personal knowledge, set forth facts that would be admissible, and affirmatively show [ed that the affiant was] competent to testify to the matters included therein.” The circuit court did not err in denying plaintiff’s motion to strike. Rule on summary judgment required a response that either admitted or denied each numbered paragraph of material facts alleged in the motion and provided failure to comply with that requirement, like raising an “objection,” constituted an admission to almost all the motion’s allegations. A single, isolated comment, though offensive, is insufficient to show discrimination. Plaintiff showed no connection between religion and either the elimination of his position, or any protest against discrimination, nor any hostile work environment.
(Overview summary)
Steve Shiffman vs. Kansas City Royals Baseball Club, LLC.
Missouri Court of Appeals-Western District - WD86311



Stale valuation requires remand for recalculations
In an action for dissolution of marriage, when dividing property, the circuit court was required to value property as of the time of trial, unless the property division occurred later than reasonably proximate to trial, which could necessitate another hearing. Seventeen months was not reasonably proximate and increased the value of a 401(k) substantially. The court of appeals remands the action to circuit court for proceedings on property division and consequent ruling on maintenance.
JEANETTE PICKENS, Petitioner-Appellant v. JAMES EDWARD PICKENS, Respondent-Respondent
Missouri Court of Appeals-Southern District - SD37791


Personal injury

Exclusion of THC intoxication opinion affirmed
Circuit court did not err in allowing plaintiffs, decedent’s divorced parents, to participate through separately retained counsel. Statute governing expert opinions in an action for wrongful death sets standards of admissibility that include reliability and relevance. Relevance includes logical relevance and legal relevance, which the circuit court concluded were lacking in a proffered expert opinion that decedent’s driver was intoxicated with marijuana. That ruling did not constitute an abuse of discretion. An abuse of discretion occurs when the circuit court rules “clearly against the logic of the circumstances then before the court or is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration." This shows that the circuit court carefully considered the testimony’s inconsistencies and speculation before excluding that testimony. The record supported an instruction on defendant driver’s failure to keep a careful lookout because it included evidence that defendant driver was driving too fast on a blind curve of which defendant driver knew the dangers, and on which other conditions enhanced the danger, and failed to keep a careful lookout laterally. Additional evidence supporting an instruction on aggravating circumstances supporting punitive damages against defendant driver included intentional violations of professional standards. Evidence supporting an instruction on aggravating circumstances supporting punitive damages against defendant driver included an unwritten policy to drive over the speed limit, failure to investigate the wreck, and failure to remedy the causes of the wreck. That evidence constituted “conduct before and after the fatal accident in this case that was tantamount to intentional wrongdoing.”
(Overview summary)
Carrie S. Schultz and Robert C. Schultz, Sr., surviving parents of Robert C. Schultz, Jr., deceased, Respondents, vs. Great Plains Trucking, Inc. and Lennis H. Beck, Appellants.
Missouri Court of Appeals-Eastern District - ED111241



Open-ended questioning was sound strategy
The elements of a claim for ineffective assistance of trial counsel included sub-standard performance. In the underlying criminal action, trial counsel’s open-ended questioning of movant was sufficient to adduce testimony in support of a self-defense theory, which was sound strategy, though movant did not provide such testimony. Trial counsel’s choice to refrain from leading questions was sound strategy because leading questions would have resulted in objections and unpredictable answers.
(Overview summary)
Tyjuan Caldwell vs. State of Missouri
Missouri Court of Appeals-Western District - WD85729

Record on abandonment necessary
On the late fling of an amended motion, the circuit court was required to make an independent inquiry into abandonment. The inquiry could be as informal as necessary but the circuit court was required to make a record sufficient “to demonstrate on appeal [that the circuit] court’s determination on the abandonment issue [wa]s not clearly erroneous.” Affidavits could suffice but unsworn statements of counsel could not. Reversed and remanded to make a record sufficient for appellate review.
(Overview summary)
Gregory E. Saddler, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED111852