Case summaries for March 25 - March 31, 2022
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.
Administrative | Appellate | Criminal | Family | Insurance | Post-Conviction | Tax
Public Records Sometimes Open, Sometimes Closed
Sunshine Law allows closure of personally identifiable personnel records, but “personnel records can be closed for some purposes while open for others.” Sunshine Law allows a right of exclusive access to closed records only for specified purposes, but that provision was not implicated in the State’s contract with State workers’ exclusive bargaining representative, because that contract did not provide an exclusive right to personnel records.
Show-Me Institute, et al. vs. Office of Administration, Brandi Caruthers, American Federation of State, County & Municipal Employees Council 61, and Danny Homan
Missouri Court of Appeals, Western District – WD84561
Probation Decision Reviewed Was Agency’s, Not AHC’s
On review of a license denial, the Administrative Hearing Commission ruled in the applicant’s favor subject to probation and set forth the provisions of probation. The agency then made its own decision about probation by a non-contested case, and the applicant appealed that decision, but the circuit court conducted judicial review of the agency decision as for a contested case. Remanded to conduct judicial review of the agency’s probation decision as the statutes prescribe for a non-contested case.
Katherine Sovulewski, Appellant, v. Missouri State Board of Nursing, Respondent.
Missouri Court of Appeals, Eastern District – ED109889
No Implied Consent at Trial, No Review on Appeal
A theory is unpreserved for appellate review when not raised at trial, at least by implied consent, which only happens on the presentation of evidence relevant to no other issue. The petition alleged forgery of a beneficiary deed, and the appeal challenges the acknowledgment of the deed and certificate of acknowledgment, but evidence on the latter also related to the former. Therefore, the issue on appeal was not tried by consent.
IN THE MATTER OF GERALD E. WHISENAND, RACHELLE D. FRANZESKOS, Appellant RUSSELL D. WHISENAND, Respondent vs. REGGIE FATINO and TRACY WHISENAND, Respondents
Missouri Court of Appeals, Southern District - SD37110
Evidence Supports Felony Resisting Arrest as a Felony
Defendant’s abrupt exit to avoid a ruse drug checkpoint constituted individualized suspicion of criminal activity supporting detention. Defendant parked at a residence among farmland, so officer engaged in a consensual contact. Defendant had driven past a gas station, and exited where there was no indication of a gas station, but said that he was looking for a gas station among the farms and residences. Those events supported a reasonable suspicion of criminal activity, which supported a detention. Producing a controlled substance not prescribed to defendant constituted probable cause to arrest defendant for a felony, which defendant resisted by flight, during which officer found more contraband. The circuit court did not err in denying defendant’s motion to exclude the evidence discovered during the warrantless seizure. Resisting arrest can be a misdemeanor or a felony; it is a felony if the arrest resisted is a felony. The possession of the controlled substance was a felony, and the circuit court found that the arrest was for a felony, so the Court of Appeals affirms the conviction for felony resisting arrest.
STATE OF MISSOURI, Plaintiff-Respondent v. NIKIA BARNUM, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36859
Written Finding Required for Departure from Presumed Child Support Amount
Failure to make requested findings of fact is not error where the findings requested were really conclusions of law, and no impediment to judicial review results. A settlement is a contract to be read according to the plain meaning of its words, the interpretation of which is subject to the canons of construction, not the parties’ testimony about their intentions. The parties’ settlement provided for contribution to educational expenses pro-rata according to their Forms 1040, which goes by the calendar year, and is therefore sufficiently definite for enforcement. But the circuit court failed to apply that provision correctly, requiring reversal and remand. Statute and rule require circuit court to establish a presumed child support amount by either accepting a party’s Form 14 or executing its own sua sponte, then adjusting the presumed amount if the presumed amount is “unjust or inappropriate,” which requires an express written finding of fact. Departure from the presumed amount without that express written finding is reversible error. Because appellant’s other point regarding child support can be addressed on remand, the Court of Appeals does not reach that point.
MARK ALAN CLIPPARD, Respondent vs. CATHERINE SUE CLIPPARD, Appellant
Missouri Court of Appeals, Southern District - SD37050
Personal Jurisdiction Waived for Paternity
Waiver of personal jurisdiction may occur, even after judgment lacking personal jurisdiction, “when a defendant makes no motion or pleadings on the issues but otherwise subjects himself to the jurisdiction of the court.” Appellant made no appearance in an action for paternity but, as to the child support ordered in the resulting judgment, sought a modification. And, in that action for modification, appellant did not challenge personal jurisdiction as a defense to the paternity judgment during three years of litigation until the circuit court raised it sua sponte. “[B]y a general appearance after judgment [personal] jurisdiction can be waived and can no longer be questioned.” Circuit court did not misapply the law in ruling that appellant had waived any defense based on personal jurisdiction.
MEGAN B. WITHERSPOON, Respondent vs. JUAN THURMOND, Appellant
Missouri Court of Appeals, Southern District - SD37131
Ruling on Liability Was Not a Final Judgment
In an action for equitable garnishment, circuit court ruled that insurer owed insured a duty to defend and indemnify, and plaintiff dismissed any claim for damages over the policy limit. But the circuit court did not rule on the amount of insurer’s liability, so the ruling is not a final judgment, and the Court of Appeals has no authority to review it.
Tracy Sykora, et al. vs. Farmers Insurance Company, Inc.
Missouri Court of Appeals, Western District - WD84445
SVP Confinement Is a Collateral Consequence of Conviction
Plea counsel has a duty to inform the defendant of direct consequences of accepting a plea agreement, but not the collateral consequences. “[C]ivil commitment under [sexually violent predator] statutes is only a possible collateral consequence of a guilty plea.” And, in any event, the circuit court was unconvinced that movant would have gone to trial if informed of that possibility.
Daniel Fields vs. State of Missouri
Missouri Court of Appeals, Western District – WD84506
Allegations Required No Hearing
Charging ineffective trial counsel for failure to investigate, without alleging how additional evidence would have supported a defense, shows neither a lapse in trial counsel’s performance nor resulting prejudice. As to a video recording, the portion admitted refuted movant’s allegation, that movant was not the initial aggressor. When witnesses’ testimony is cumulative, trial counsel is not ineffective for failure to investigate or call them. Statute allowing a district defender to seek relief, on specified facts including a caseload that prevents effective assistance, explicitly bars post-conviction relief on that basis. No hearing on the motion was necessary to deny relief.
Darwin D. Stevenson, Movant/Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District – ED109610
Delay in Sentencing No Grounds for Relief
Circuit court determined that movant’s guilty plea was knowing, voluntary, and intelligent; and disbelieved movant’s testimony to the contrary. Between pleading guilty and sentencing, movant committed felonies that kept him confined for six years, but that fact does not entitle movant to relief. Movant alleged ineffective assistance of counsel but not as to deciding whether to plead guilty. Judgment denying relief affirmed.
NICK E. JOHNSON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36948
Law of the Case Applies on Second Appeal
Courts always examine the initial motion’s timeliness sua sponte. If an initial motion is late, remand is for dismissal only, but the first remand was for an inquiry into abandonment so the initial motion was implicitly ruled timely. That ruling went unchallenged. “The decision of a court is the law of the case for all points presented and decided.” The second remand was for an inquiry into abandonment again, this time, using the correct standard. On a motion for re-hearing, respondent argued that the initial motion was late, but the law of the case bars that argument.
WESLEY HATMON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD37074
Attorney Fee Award Reversed
Statute and ordinance provide an award to “reimburse” litigation expenses, including attorney fees, when State Tax Commission reduces real property appraisal by specified amounts. That reduction occurred when respondents retained a tax consultant, who retained counsel, on a contingent fee agreement. But that agreement did not require taxpayers to pay out any litigation expenses, which the consultant paid, so no reimbursement to taxpayers was due under the statute and ordinance. The same result is obtained under the Missouri Administrative Procedure Act. The collateral source rule applies to damages in tort actions, and respondents did not object to evidence of consultant’s payments, so an appellate court will not consider it. Reversed and remanded for the Commission to reinstate its denial of an award.
Flower Valley, LLC, et al., Respondents, vs. Jake Zimmerman, Assessor, St. Louis County, Missouri, Appellant.
Missouri Court of Appeals, Eastern District – ED109443