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Case summaries for Mar. 26 - Apr. 1, 2021


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 | Civil | Corporations and Other Entities | Criminal | Employment | Environmental | Family | Post-Conviction | Workers' Compensation


Unequal Consideration for Arbitration Clause Okay
Federal and Missouri statutes provide that “an interlocutory order denying arbitration is immediately appealable upon entry” so the Court of Appeals has jurisdiction over it. Contract’s arbitration clause binds the parties to arbitrate any dispute “arising out of or relating to” the contract, including fraudulent inducement and negligent misrepresentation, because those tort claims seek damages related to the contract. Obligations need not be identical to be mutual, so appellant’s reservation of other remedies does not make the arbitration clause unenforceable.
Missouri Court of Appeals, Southern District - SD36713


Disputed Facts Immaterial
Summary judgment on a claim is due when a movant establishes the elements of a claim or defense beyond genuine dispute. Plaintiff’s claims for enforcement of a contract, quantum meruit, and unjust enrichment, are subject to five-year statute of limitations. Defendants established that the claims were too old, and whether plaintiff raised a genuine dispute as to any provision of the contract is irrelevant, because no such provision is material to the time limitation. An installment contract is subject to a ten-year statute of limitations for breach each time an installment is due, but plaintiff did not genuinely dispute that no installment contract existed.  
Sally Bacon, Appellant, v. Jeffrey Friedman, et al., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109141

Corporations and Other Entities

Agency Distinguished from Piercing the Veil
Statute sets forth the conduct that submits a person to the jurisdiction of Missouri courts, which includes doing busines and committing a tort in Missouri, and that conduct also constitutes the minimum contact necessary to satisfy the due process of law. Appellant alleged that respondent transmitted a fraudulent statement to Missouri. Therefore, appellant alleged facts on which Missouri courts had personal jurisdiction over respondent. Respondent’s capacity as an agent for a disclosed principal is no defense to respondent’s personal liability for the principal’s debt, when the principal is a corporation, the form of which courts may disregard on proof of fraud, undercapitalization, or asset-stripping to avoid creditors. “[P]iercing the corporate veil [and] pure agency theory ... are separate and distinct [theories] and used in distinctly different situations” “[t]hat Missouri courts may have blurred or confused [.]” Circuit court’s dismissal of appellant’s action reversed.
James P. Bick, Appellant, v. Legacy Building Maintenance Company LLC and William Rostad, Defendants, and Luis Zambrana, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108992


Corroboration Under Corpus Delecti Rule Shown
A statement of “no objection” to the entry of evidence into the record does not waive an already secured continuing objection to that evidence. The corpus delecti rule bars evidence that defendant confessed to a crime unless some other evidence shows that damage occurred in a criminal fashion.  That includes evidence confirming statements in the confession, though not elements of the offense, including physical evidence and observations of complaining witness’s behavior. Testimony relating victim’s accusation was admissible, over hearsay and confrontation clause objections, to explain the witness’s conduct and not for the truth of the statements. An instruction was due, stating that such testimony was not evidence of guilt, but other strong evidence of guilt rendered the omission of that instruction harmless. A finding that victim was asleep supported a conclusion that victim was incapacitated.  
State of Missouri, Respondent, v. Timothy Dean Burroughs, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108518

Expert Admission and Impeachment of Expert Testimony Discussed
The State charged defendant with murder in the first degree and unlawful use of a weapon by shooting into a car. Deliberation means killing consciously rather than reflexively, as shown by planning, using a firearm on a vital body part, and flight afterward. Evidence placing defendant at the scene included evidence connecting defendant to a weapon, and expert evidence connecting the weapon to the killing. No formal evidentiary Daubert hearing is necessary to the entry of expert evidence. To impeach the expert evidence connecting the weapon to the killing, a learned treatise was admissible, but only on a foundation showing the learned nature of the treatise. No cumulative error occurred where no errors occurred at all.
State of Missouri, Respondent, v. Desmond Artez Mills, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108022

Retaliatory Sentencing Not Shown
Exercise of a constitutional right, including the right to trial, is not grounds for increasing a sentence. But the record showed that the circuit court’s basis for selecting movant’s sentence included movant’s untruthfulness and irresponsibility, and did not include exercising the right to trial.
State of Missouri vs. David Jose Escalona
(Overview Summary)
Missouri Court of Appeals, Western District - WD83807

Intoxicated Consent to Search Okay
The State has the burden of proving that consent to a search was freely given, which intoxication does not negate unless intoxication is so great that it made defendant incompetent to understand what he was doing. The totality of circumstances, including defendant’s responses to officer’s requests and suggestions, showed that defendant understood that he was consenting to officer entering defendant’s domicile. Court of Appeals affirms circuit court’s order denying defendant’s motion to suppress.
State of Missouri vs. Joshua Smith
(Overview Summary)
Missouri Court of Appeals, Western District - WD83657

Sentence Okay
To preserve a challenge to sentencing on appeal, defendant must raise an objection at the first opportunity. The first opportunity to object to judge’s responses to jury questions was when the judge announced the intended response. That intended response met with agreement from the defense, waiving plain error review. Plain error review would not help, because the circuit court ran jury-recommended terms of imprisonment concurrently, which the statutes required, and because appellant did not show that jury’s recommendation resulted from judge’s responses to jury questions.  
State of Missouri vs. Martese Jamon Johnson Winters
(Overview Summary)
Missouri Court of Appeals, Western District - WD83417

Offenses Charged Together, One Enhances Sentence for Another
Statutes enhance sentencing if defendant has “previously committed” specified offenses, whether convicted of such offense or not. Since no conviction is necessary for the offense to count, no charge is necessary for the offense to count, so one offense counts for enhancing the sentence for another offense when both are charged in one instrument.
State of Missouri vs. Robert E. McDonald
(Overview Summary)
Missouri Court of Appeals, Western District - WD81991

Crack Use and Debt Admissible to Show Motive
Evidence of uncharged bad acts is admissible to show motive. Evidence that a crack creditor threatened defendant’s household over debts was “highly probative” of defendant’s motive to commit robbery in the first degree. Circuit court did not err in entering evidence of crack use and threats into evidence. 
STATE OF MISSOURI, Plaintiff-Respondent vs. RODNEY BENSON BOWEN, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36565


Instructional Error Reverses Employer’s Verdict
At-will employment is conditioned on a reason for termination that is not unlawful. On a charge of unlawful termination under the Missouri Human Rights Act, lawful justification is a defense. Departure from an approved instruction is error and raises a presumption of prejudice. Employer failed to rebut that presumption because employer’s modification “kept the jury from getting to the question of whether there was a lawful reason for discharge by keeping that question at arms-length and simply limiting the jury to deciding whether [appellant] was an at-will employee.” Judgment for employer reversed and remanded for new trial.
Dimple "Denise" Kelly vs. City of Lee's Summit, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83742


CAFO Permit Upheld
Applicant sought a clean water permit for confined animal feeding operation. Statute bars issuing a permit that will cause polluted runoff, and applicant confined animal feeding operation will generate manure containing pharmaceuticals through which water would flow, but the record shows that the applicant will ship all manure off-site. The record shows that the Administrative Hearing Commission considered all evidence in making its recommendation, and that the Clean Water Commission understood the scope of its review in adopting that recommendation. Clean Water Commissioner’s review includes considering agricultural interest, and appellants did not show that a Clean Water Commissioner’s former pro-CAFO lobbying efforts impacted the decision. Remand for compliance with a procedural regulatory requirement would be futile when that requirement no longer exists.
In the Matter of: PVC Management II, LLC, Permit No. MOGS10560 Opponents of Cooper County CAFOs, LLC vs. Missouri Department of Natural Resources and Missouri Clean Water Commission
(Overview Summary)
Missouri Court of Appeals, Western District - WD82525


Res Judicata Bars Claim for Extrinsic Fraud
Res judicata bars any later action decided, in an earlier action, on the merits. Decision on the merits may occur in a dismissal without prejudice, when a circuit court determines the merits of a claim or defense after a full and fair opportunity to litigate the merits of that claim or defense, even when the determination results from intrinsic fraud. Intrinsic fraud means fraud related to the merits, like using false evidence, or concealing evidence. Res judicata does not apply to a judgment obtained in an earlier action by extrinsic fraud. Extrinsic means unrelated to the merits, and related to how a party procures a judgment, like fraud to induce a default or consent judgment. Establishing extrinsic fraud requires proof that is “clear, strong, cogent, and convincing evidence [;]” and “the complaining party[’s] absence of fault, neglect, or inattention to the case.” Appellant’s allegations, that respondent concealed debts assigned to appellant in the earlier action for dissolution of marriage, described only intrinsic fraud. Appellant’s incomplete discovery in the earlier action was “fatal to his extrinsic fraud claim against” respondent in a later action for equitable relief.
Vicki J. Smith, Appellant, v. Dean A. Smith, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108399

Guardianship for Minors Discussed
Statutes governing guardianship for children does not violate fundamental rights of parents because they presume parental suitability, and provide only a temporary “stop-gap” remedy pending parents’ return to suitability, which is subject to termination on parents’ petition. The burden of proof is a preponderance of the evidence.
In Re: E.R.V.A. R.W. & K.W. vs. H.P.A. & A.M.A.
(Overview Summary)
Missouri Court of Appeals, Western District - WD84222

Omission of Holidays Requires Re-Write of Parenting Plan
Statutes require findings of fact on enumerated factors, but the circuit court findings on child’s best interest show that no manifest injustice occurred, so Court of Appeals declines plain error review. Statutes require that a judgment designating custody must assign custody to one of the parties during “[m]ajor holidays” for all children, and “[s]chool holidays” and “winter, spring, summer and other vacations from school” for school-age children. Omission of those dates constitutes reversible error, requiring remand for an amended judgment, which will moot the remaining points.  
Danialle Lea Taylor and Skyler James Francis, By Next Friend Danialle Lea Taylor vs. Dustin Keith Francis
(Overview Summary)
Missouri Court of Appeals, Western District - WD83122


Appellate Counsel Not Ineffective
In determining whether a motion’s allegations describe facts supporting relief, no favorable inference is due the movant. On a claim for ineffective assistance of appellate counsel, relief is possible only if the motion describes a lapse in representation, but for which the outcome reasonably would have been different. The elements of resisting a stop by fleeing do not include the reason for the stop and, even if they did, a stop has support in reasonable suspicion of criminal activity. Appellate counsel need not raise a futile challenge on appeal. No hearing was necessary to deny the motion.  
Antonio M. Morrison vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83887

Findings of Fact and Conclusions of Law Required
Appellate review of circuit court judgment denying a motion is for clear error in findings of fact and conclusions of law, which are mandatory under law, and without which the appellate review is impossible for movant’s claims. Reversed for entry of findings of fact and conclusions of law.
Brandon Scott Morse vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83654

Workers’ Compensation

Evidence Showed Risk, Not Causation
Repetitive motion injuries are subject to compensation if, like other injuries, “occupational exposure was the prevailing factor in causing both the resulting medical condition and disability.” Causation by “an ordinary disease of life” negates compensation. The issue is one of fact, “the burden to prove the cause of his medical condition rested entirely with” claimant, and factual findings of the Labor and Industrial Relations Commission merit deference on appeal. Proof that osteoarthritis caused claimant’s condition does not support compensation without proof that working conditions caused the osteoarthritis. The Commission accurately characterized the record as devoid of evidence on causation favoring the claimant; expert evidence on risk factors did not constitute evidence of causation.
Jonathan Mirfasihi vs. Honeywell Federal Manufacturing & Technologies, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD84136