Case summaries for March 21-27, 2025
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 | Family | Juvenile | Local government | Orders of protection | Personal injury | Post-conviction | Real estate
Appellate
Changed rule changed timing
The deadline for filing notices of appeal started when judgments became final. Final meant resolving all issues as to all parties. A motion for attorney fees in any action was part of such actions, and so required resolution before actions were final. Just before the plaintiff’s judgment in the underlying action issued, an amended rule provided that a motion for attorney fees incurred in circuit court constituted an independent action. That change was procedural so it applied in pending actions. The plaintiff’s motion to amend judgment constituted a motion for attorney fees. Therefore, that motion was an action independent of the underlying action did not prevent the judgment from becoming final. The judgment’s issuance date started the time for filing after-trial motions, rulings on those motions, and notices of appeal. The Missouri Court of Appeals dismissed the appeal of the underlying judgment and remanded the action for circuit court to determine the amount of attorney fees incurred on appeal.
(Overview summary)
Leesa Wiseman vs. Missouri Department of Corrections
Missouri Court of Appeals-Western District – WD86412
Civil
Unfair surprise from non-retained expert
Parties had to disclose non-retained experts and failure to do so was cause to exclude testimony when unfair surprise resulted. A treating physician could testify as to a decedent’s cause of death based on observations during treatment, on which the plaintiff’s decedent’s treating physician had no opinion in an earlier deposition. But in a later deposition, just three days before trial, that physician offered such an opinion supported with research done solely in preparation for trial. That testimony constituted unfair surprise testimony that supported an inference of prejudice, strengthened by the crucial nature of that evidence, and by the defendant’s emphasis in closing argument. The circuit court abused its discretion in allowing such testimony so the Missouri Court of Appeals reversed the judgment and remanded the action for a new trial.
(Overview summary)
Shirley A. Ralls, Personal Representative for the Estate of James R. Ralls vs. Soo Line Railroad
Missouri Court of Appeals-Western District – WD86617
Criminal
No challenging defendant’s own instruction
Circumstantial evidence could support a conviction as well as direct evidence. “Generally, a juror may reasonably infer that a defendant caused the child victim’s injuries when the child is injured while in the defendant’s care and the injury was caused by non-accidental trauma.” Whether the defendant was the perpetrator was for the jury to infer and such inference had support in the time that the victims spent in the defendant’s care. Whether involuntary manslaughter in the first degree could occur by omission, the defendant did not argue in circuit court and so could not raise in the Missouri Court of Appeals, and did not include in a point relied on. The defendant could not challenge on appeal an instruction that defendant offered at trial.
(Overview summary)
State of Missouri, Respondent, v. Horatio T. Harris, Appellant.
Missouri Court of Appeals-Eastern District – ED112333
No prejudice from variance
On a charge of class B felony shooting at a motor vehicle, submitting an instruction on class E felony shooting into a motor vehicle did not constitute plain error because the same evidence was necessary to defend against either. Plain error occurred when the circuit court sentenced the defendant for class B felony shooting at a motor vehicle. “As an aside, this Court notes the irony of the statute which provides different penalties for a defendant shooting at and shooting into a motor vehicle. Shooting at a motor vehicle is a class B felony and carries a heavier penalty than shooting into a motor vehicle, which is a class E felony.” The Missouri Court of Appeals remanded the action for the circuit court to enter judgment against, and sentence, the defendant for class E felony shooting into a motor vehicle.
(Overview summary)
State of Missouri, Respondent, vs. Isis S. Jones, Appellant.
Missouri Court of Appeals-Eastern District – ED112232
DWI
Reasonable grounds included refusing a breath test
On judicial review of a license suspension, the director of revenue’s burden of proof included probable cause — meaning reasonable grounds — to believe that the driver was operating a motor vehicle while intoxicated. The circuit court found probable cause based on evidence that the driver was speeding and crossing into the left lane, smelled of alcohol, ranting incoherently, and refused a breath test. “[M]ultiple refusals to take a field sobriety test or a breathalyzer test carry some probative weight on the probable cause issue.” The absence of other signs of intoxication did not show that the circuit court’s judgment was against the weight of the evidence.
(Overview summary)
Jessica Swisher vs. Director of Revenue, State of Missouri
Missouri Court of Appeals-Western District – WD87262
Family
No Set Format for Considering Custody Factors
Statutory factors guiding contested awards of child custody included any history of abuse and adjustment to school. During elementary school attendance over the course of four years, child received inappropriate touches from fellow students twice. The circuit court set forth its consideration of those incidents, did not have to give appellant’s testimony more weight than it did, and did not have to set forth that consideration under the factors of abuse and adjustment to school. The circuit court denied the motion to modify child custody and the Court of Appeals affirmed the judgment.
In Re: The Marriage of J.J., Petitioner-Appellant v. D.J., Respondent-Respondent
Missouri Court of Appeals, Southern District - SD38576
Juvenile
School attendance was compulsory
Appellant juvenile had to attend school while of a specified age of some unless incapacitated, physically or mentally, or lawfully employed. The evidence supported a finding that the appellant was of the specified age and failed regularly to attend school, multiple excuses notwithstanding. The appellant’s challenge to an element of the offense charged did not constitute a challenge to personal jurisdiction.
(Overview summary)
In the Interest of: F.P.L. vs. Juvenile Officer
Missouri Court of Appeals-Western District – WD87009
Local government
No legal expense fund money for police board under local control
The Legal Expense Fund paid certain amounts that included judgments settlements of claims against state agencies. State agencies once included the St. Louis City Board of Police Commissioners but voters reverted that board to local control, and the governing statutes barred payment to the board. That bar applied to any claim after the change of control without regard to when the events underlying the claim occurred. In an earlier action filed before the change, the city committed conduct that was the subject of a later action filed after the change. The city’s payment in settlement of the later action was not eligible for payment from the fund because the conduct alleged — discovery abuse — was different from the earlier action. The Missouri Court of Appeals reversed the circuit court’s summary judgment for the city and remanded the action for judgment in favor of the state.
(Overview summary)
City of St. Louis, Respondent, vs. State of Missouri, and Andrew Bailey, Missouri Attorney General, Appellants.
Missouri Court of Appeals-Eastern District - ED112792
Orders of protection
One incident, no stalking
The Missouri Adult Abuse Act allowed a full order of protection for stalking. Stalking, without domestic violence or sexual assault, required “two or more acts” that alarmed respondent. In a boundary dispute with the appellant, the appellant once put the respondent in fear of physical harm and trespassed several times. The latter incidents did not cause any fear of physical harm, as far as the record showed, so the respondent failed to show stalking. The Missouri Court of Appeals vacated the full order of protection.
C.K.U., Petitioner-Respondent v. DARRELL W. HURT, Respondent-Appellant
Missouri Court of Appeals-Southern District – SD38623
Personal injury
No duty to protect from third-party negligence
The elements of negligence included a duty to protect against foreseeable harm. Foreseeability was more than possibility. Foreseeable probable enough that a reasonable person protected against it. That generally did not include injuries to business invitees from third-party conduct, negligent or even criminal, unless the business had notice from numerous recent similar incidents at the same site or the totality of circumstances. A driver crashed into the defendant’s storefront. Only one similar incident had ever occurred and that was 10 years before, which outweighed other circumstances. The plaintiffs did not show that the parking lot design was defective. The Missouri Court of Appeals affirmed summary judgment for defendants.
(Overview summary)
Joseph Simmons III, et al., Appellants, vs. Keat Properties, LLC, et al., Respondents.
Missouri Court of Appeals-Eastern District - ED112785
Post-conviction
No prejudice shown
On a claim for ineffective assistance of counsel, the movant had to show that counsel’s substandard performance prejudiced the movant. “[S]imply showing that the alleged error had a conceivable effect on the trial outcome is not sufficient; instead the [movant] must show that, absent the error, there is a reasonable probability that he would have been found not guilty.” Trial counsel choose against having the movant testify in support of an alternative perpetrator defense. The movant did not show any prejudice because the evidence of the movant’s guilt was overwhelming, other evidence supported that defense, and the movant’s personal testimony was unnecessary to the defense, and the movant’s testimony would have subjected movant to “damning” cross-examination.
(Overview summary)
Antoine L. Ellis vs. State of Missouri
Missouri Court of Appeals-Western District – WD86864
Trial counsel’s observations carried weight in shaping strategy
On a claim for ineffective assistance of counsel, the movant had to show that counsel’s strategic choices were unreasonable. The movant alleged that trial counsel should have further investigated and offered more evidence of the movant’s cognitive decline as mitigating evidence during sentencing. But the evidence did not support a defense, and trial counsel’s first-hand observations of the movant showed that such arguments would be unpersuasive, so choosing against such additional investigation and evidence was not unreasonable.
(Overview summary)
Larnell McDonald vs. State of Missouri
Missouri Court of Appeals-Western District – WD86768
Real estate
Development rights not conditioned, timely exercised
The circuit court had discretion to halt a witness’s reference to notes and was not required to strike the testimony. A challenge to findings as against the weight of the evidence required a specific analysis without which such challenges must fail. When a point relied on challenged a ruling not made, the Missouri Court of Appeals denied the point. The Uniform Condominium Act provided that the developer was solely liable for expenses related to property under development, and required the developer to cede control of the homeowners’ association to homeowners, but those requirements did not constitute a condition for further development. Further development required repairs to a roadway so the circuit court did not err in ordering such repair after completion of the development. Declarations under the act constituted a contract, and the statute of limitations for enforcement of contracts was five years, so the circuit court did not err in limiting liability for assessments to five years. Assessments for common areas and limited common areas could vary because the Act distinguished between the two, barring favorable treatment to the developer as to the former but not as to the latter. The circuit court did not err in treating the developer’s past donation to an operating fund as a credit against the developer’s general liabilities. The Court of Appeals affirmed the judgment.
LANDS' END PROPERTIES, LLC, et al., Plaintiffs-Respondents v. THE GRAND MERIDIAN CONDOMINIUM OWNERS' ASSOCIATION, INC., et al., Defendants-Appellants
Missouri Court of Appeals-Southern District - SD38117