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Case summaries for March 24 - March 30, 2023


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.

ADR | Appellate | Civil | Criminal | DWI | Employment | Juvenile | Post-Conviction | Real Estate


Interest due on judgment affirming decision 
When authorized by statute, the amount of an arbitrator’s attorney fees award is subject to discretion, and to appellate review for an abuse of discretion. Especially under the heightened deference due an arbitrator’s award, “clear and thorough findings” of fact supported the award of some fees requested, and the denial of others. In the judgment affirming the arbitrator’s decision, statute required the circuit court to order post-judgment interest and set forth the rate, which the circuit court omitted. Remanded for modification of the judgment to cure that omission.  
Floyd S. Wiedner vs. Ferrellgas, Inc., et al 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85747


Arguments insufficient 
The denial of a motion to dismiss is not immediately appealable because it is not a final judgment but, once a judgment becomes final, appellant may appeal the denial of the motion to dismiss. Appellant argued that the United States Constitution’s dormant Commerce Clause entitled him to state tax credits against a city earnings tax but sought a different type of credit in each forum, so preserved nothing for review. Also, even if appellant had preserved the matter, in neither forum did appellant show that the challenged tax violates the dormant Commerce Clause by omitting such credits. Further, the challenged tax has provisions for credits that appellant did not show were inadequate.  An appellate court will not rule on a point relied on that fails to announce its theory: no substantial evidence, against the weight of the evidence, an erroneous declaration of the law, or an erroneous application of the law.  
City of Kansas City, Missouri, A Municipal Corporation vs. Phillip J. Troyer 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85432


Prayer for relief controls over title of motion 
“[T]he relief awarded in a judgment is limited to that sought by the pleadings.” Respondent filed a pleading as a “motion for contempt” but prayed for back payment of maintenance and child support. Because maintenance and child support were the relief sought, and ordering such relief constituted an order enforcing a judgment, that relief was within the circuit court’s authority to grant. That relief had support in evidence entered into the record but, even if it did not, appellant did not preserve that matter for appellate review.   
Thomas M. Bruns, Appellant, vs. Courtney C. Bruns, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110124


No amended judgment allowed, reversal on appeal necessary 
The Court of Appeals has inherent power to confine a circuit court within the circuit court’s authority, and allowing a circuit court to depart from the statutes would also violate the Missouri Constitution’s separation of powers provision. The State’s challenge to a criminal judgment’s error in mandated sentencing does not constitute double jeopardy. Statutes mandated the maximum sentence for class B felony, and sentencing otherwise was open and obvious error in manifest injustice to the State’s public protection duties, even when the State “utterly failed to fulfill” the State’s duty of informing the circuit court about the governing statutes. The initial judgment’s imposition of sentence exhausted the circuit court’s authority, albeit erroneously, so no amended judgment was possible. Judgment reversed and remanded for re-sentencing, though a motion to withdraw the guilty plea may follow and should be freely allowed.   
State of Missouri vs. Jaquan D. Whirley 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85010 and WD85364

Child victim statements admissible 
Statute allows hearsay evidence relating the statements of a child witness who testifies at trial if the statements have sufficient indicia of reliability. Indicia of reliability include “a lack of leading questions, pressure tactics, and excessive prompting [,]” and “[i]nconsistencies and conflicts in testimony go to the credibility of the witness, not the admissibility of the testimony [.]” Child witness’s spontaneous disclosure also supports reliability, while the delay and limitations on the statements go only to weight, not admissibility. Appellant’s concession that such indicia supported the admissibility of other statements made in the same interview undercuts appellant’s arguments against the one challenged statement from that interview.  “The circuit court’s adoption of the State’s proposed order” “even though that order failed to explicitly address the limited out-of-court statements [that appellant] continued to challenge” “has complicated [appellate] review;” but is not grounds for reversal. Appellant showed no abuse of discretion, so the Court of Appeals affirms the judgment.  
State of Missouri vs. Thomas Eugene Antle 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD83333

Plain error review denied for indistinguishable multiple acts 
Missouri Constitution protects the right of a defendant to a unanimous guilty verdict. That requires a separate verdict director for each distinguishable act, when evidence shows multiple distinguishable acts, so that all jurors find defendant guilty of the same act. When the evidence shows multiple indistinguishable acts, one verdict director is sufficient, because there is no danger that jurors will find defendant guilty of different acts on one verdict director. That is especially true when the verdict director furthered trial counsel’s strategy. Plain error review denied.      
STATE OF MISSOURI, Plaintiff-Respondent v. JOHN A. HAYES, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37427


Refusing test is not self-incrimination 
“[A] refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination [,]” so using “evidence of a refusal against a defendant comports with the ‘fundamental fairness required by due process.’” That evidence was therefore not subject to suppression, and the circuit court erred in granting the State’s motion to suppress that evidence, so the Court of Appeals reverses that ruling. But the privilege against self-incrimination bars responses to pre-Miranda questions, and statements likely to evoke a response, beyond those ordinarily accompanying an arrest warning. That evidence was subject to suppression, and the circuit court did not err in granting the State’s motion to suppress that evidence, so the Court of Appeals affirms that ruling. 
State of Missouri vs. Kimberly E. Vandervort 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85748 and WD85752


Summary judgment affirmed on discrimination and retaliation  
On appellate court review of a motion for summary judgment, the parties must rely on their statement of undisputed material facts as filed in the circuit court, but failure to do so will not thwart appellate review when an appellate court can discern those facts. Whether co-employee conduct objectively caused a hostile work environment is not immune from summary judgment; and plaintiff failed to show pervasive, ubiquitous, or rampant incidents of a severe, grave, or acute nature in employer’s workplace. On the contrary, defendant employer’s response to the complaint brought defendant’s official power to bear in her favor. Those facts, established beyond genuine dispute, show that plaintiff employee’s complaint about sexual harassment from a third-person fellow employee resulted in no tangible employment action. An argument on employee’s retaliation claim not raised to circuit court, and not the subject to a request for plain error review, is not subject to appellate review.  
M.S. Bracely-Mosley, Appellant, v. Hunter Engineering Co., Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110687


Certification affirmed 
Statutes allow the circuit court to dismiss a juvenile action and certify that a criminal action may proceed against appellant. In making that determination, statutes contemplate felony murder and accomplice liability, and provide factors for circuit court to find and weigh in its discretion. As to the seriousness of the offense alleged and need for public protection, allegations of participation in second degree murder and assault by pistol-whipping to the head involve sufficient violence to support certification. As to escalating or repeating offenses, those offenses need not be identical in character or gravity. As to maturity and sophistication, no psychiatric evaluation was necessary. As to whether the juvenile system could rehabilitate appellant, appellant failed to convince the circuit court. Certification affirmed.  
In the Interest of: A.R.K. vs. Juvenile Officer 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85237

Supervised home placement revoked 
Dispositions authorized under the juvenile statutes include home placement under juvenile officer supervision, subject to conditions that the circuit court orders, including restitution. Such order need not impose, and “suspend execution” of, “probation.” When appellant failed to make restitution, the circuit court did not err in committing appellant to a juvenile facility. 
In re: The Matter of J.R.K. vs. Juvenile Officer 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85143


No relief from sound strategy 
Movant charged that trial counsel was ineffective for failing to call certain witnesses; but movant offered no evidence that trial counsel should have known about, and could have found, any other witness who would have helped his case; nor how such witness would testify, how that testimony would help the defense, or whether that any such witness would testify. Movant charged that appellate counsel was ineffective for failing to assert a violation of movant’s right to a speedy trial, but that claim would not have been meritorious: movant asserted that right only after the setting of a trial date, the unavailability of a key witness justified the delay, incarceration pending trial also served a pending unrelated criminal action against movant, and movant showed no prejudice.  
Darnell Hollings, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110767

Record specific enough to refute allegations 
On a claim of ineffective assistance of plea counsel, no hearing is necessary to deny a motion when the record refutes the allegations, which partially depends on how specifically movant responded to the circuit court’s colloquy. Movant repeatedly expressed satisfaction with plea counsel’s performance and “specifically admitted to the plea court under oath that he possessed the firearm as a convicted felon.” No specialized knowledge was necessary for movant to understand that, if someone else possessed that firearm, those facts constituted a defense.  
Brian C. Lee, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110693

Abandonment inquiry necessary 
An extension of time for filing an amended motion can only occur when the circuit court grants a motion for extension of time before the deadline for filing the amended motion. Otherwise, no extension of time to file the amended motion is possible, unless abandonment occurred. Whether abandonment occurred depends on the result of an independent inquiry that, if not already done, necessitates a remand for that purpose. Late filing is irrelevant if the circuit court fully ruled on all claims in both motions but that did not happen. Remanded for inquiry into abandonment.  
Clayton D. Reehten, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110538

Abandonment inquiry necessary 
The time for appointed post-conviction counsel to file an amended motion starts with the appointment. Late filing must result in an inquiry into whether appointed post-conviction counsel abandoned movant because abandonment excuses late filing, and the circuit court may rule on the amended motion. Remanded for that inquiry.  
Donte McGary, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110408

Real Estate

Pending action doctrines inapplicable 
The pending action doctrine—or abatement doctrine—holds that, between two actions that involve the same parties in the same postures, and the same subject matter, allegations, and issues, the earlier filed action should proceed and the later filed action should be dismissed. That doctrine cannot apply between an action for breach of contract and tortious interference with contract and an action for unlawful detainer. That is because an action for unlawful detainer statutorily excludes matters related to the merits of title, which are central to the contract action. In the unlawful detainer action, the circuit court did not err in granting judgment for respondent over appellant’s motion to dismiss, and the Court of Appeals does not rule on a challenge to that judgment based on the merits of title.   
Willie Hampton vs. Yvonne A. Llewellyn 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84925