Case summaries for March 28-April 3, 2025

Civil | Criminal | Environmental | Family | Insurance | Miscellaneous actions | Personal injury | Post-conviction | Real estate

Civil

Right to jury trial not preserved 
Defendant’s pattern of contumacious conduct supported the circuit court’s order sanctioning defendant by cancelling the jury trial. Defendant’s right to a jury trial had protection in constitutional provisions and defendant could preserve that right by raising it in a motion for new trial. Defendant’s motion for new trial incorporated by reference defendant’s suggestions in support of the motion, in which a footnote referred to the provision protecting the right to a jury trial. That drafting was insufficient to preserve defendant’s constitutional objection. The Supreme Court of Missouri affirmed the circuit court’s judgment for plaintiff. 
(Overview summary)
Ethel Barry Masters, Respondent, vs. Jacob Dawson, Appellant.
Supreme Court of Missouri – SC100724

Criminal

Serious physical injury shown 
The circuit court did not intervene when a witness volunteered hearsay testimony placing defendant near the shooting, but other evidence did the same, so no plain error occurred. On a charge of first-degree murder, the jury received instructions on lesser included offenses. As to those offenses, the state’s acquittal-first argument misstated the law and the circuit court did not intervene sua sponte. But defendant did not show “a decisive effect on the jury’s determination” because defendant did not show any relation of the argument to defendant’s theory of misidentification, so defendant did not show any plain error. The elements of class A felony first-degree assault included serious physical injury, which included protracted loss or impairment of the function of any part of the body. Such loss or impairment appeared in surveillance video and other evidence admitted into the record, published to the jury or not, so the record supported that finding. The Supreme Court of Missouri affirmed the convictions. 
(Overview summary)
State of Missouri, Respondent, vs. Anthony Tate, Appellant.
Supreme Court of Missouri – SC100676

Suppression reversed on apparent authority to consent 
Orders suppressing evidence were subject to interlocutory appeals. “What [Defendant] is assured by the Fourth Amendment … is not that no government search … will occur unless he consents; but that no such search will occur that is ‘unreasonable.’” Searches were not unreasonable when conducted under valid consent from persons with authority apparent to a reasonable person. That described a homeowner’s consent to search a room where the homeowner’s son was staying as a guest. The homeowner’s declarations as related by a law enforcement officer’s testimony were not hearsay, and did not implicate the confrontation clause, because the state did not offer them for the truth of the matters stated, only to explain the officer’s conduct. Those facts objectively supported a belief that law enforcement officers had consent to search the room without regard to whether the guest had exclusive use of the room and a reasonable expectation of privacy. 
(Overview summary)
State of Missouri, Plaintiff/Appellant, vs. Jesse M. Bromwell, Defendant/Respondent.
Missouri Court of Appeals-Eastern District – ED112934

Tampering with a judicial officer conviction affirmed 
The elements of tampering with a judicial officer included conduct reasonably calculated to harass or alarm, so whether intimidation occurred was relevant, which made admissible the testimony of persons who received defendant’s demands and threats. And the uniformity of the recipients’ reaction was highly probative. Testimony about the defendant’s threatening statements was not hearsay, because the state offered it to show the effect those statements had on the person who heard them, not whether they were true. Prosecutor comments on courtroom events that anyone could observe themselves — that defendant was left-handed — did not constitute unsworn testimony. The Missouri Court of Appeals affirmed the convictions. 
(Overview summary)
State of Missouri, Respondent, vs. Jeffrey Reuter, Appellant.
Missouri Court of Appeals-Eastern District – ED112276

Parole eligibility amendment did not apply 
A statutory amendment reduced the minimum time served before eligibility for parole, so plaintiff filed for declaratory relief seeking a parole hearing. The amendment expressly excluded robbery in the first degree, petitioner’s offense, so the court did not err in denying relief. 
(Overview summary)
Lester A. Stone vs. Missouri Board of Probation and Parole
Missouri Court of Appeals-Western District – WD87333

Defense instruction was not supported 
In a criminal action, an instruction was due on request when substantial evidence supported it. On a charge of non-support, good cause for non-payment was an affirmative defense. Defendant testified that he had health problems but did not testify how those problems constituted good cause for failure to pay child support. Defendant also testified that an employer withheld from defendant’s pay without remitting to the Division of Family Services but did not testify that the withholding occurred during the period of non-payment. Defendant’s testimony did not support submitting a good cause instruction to the jury. 
(Overview summary)
State of Missouri vs. Juvonie Eugene Minor
Missouri Court of Appeals-Western District – WD86694

Environmental

Remedy against city was inverse condemnation, not nuisance and negligence 
Judgment notwithstanding the verdict was due when plaintiff failed to support any element of their claim with substantial evidence and the circuit court’s ruling on that motion was subject to appellate review de novo. Constitutional provisions barred the state and its political subdivisions from taking property without compensation. Property owners’ enforcement of such rights against any entity with eminent domain power was through an action for inverse condemnation to the exclusion of any other action. That included plaintiffs’ damages for loss of use and enjoyment of their real properties caused by the defendant city’s mismanagement of a wastewater treatment facility. Plaintiffs were “not entitled to recover for the loss of use and enjoyment of their property caused by the odors apart from how that loss affects the overall lost value in their property rights.” The circuit court misapplied the law in denying the city’s motion for judgment notwithstanding the verdict. The Missouri Court of Appeals vacated the judgment and, because plaintiffs did not choose their incorrect theory for strategic advantage, remanded the action for plaintiffs to amend their pleadings. 
ROBERT AND SUSAN FERGUSON, et al., Plaintiffs-Respondents v. CITY OF SUNRISE BEACH, MISSOURI, Defendant-Appellant
Missouri Court of Appeals-Southern District – SD38532

Family

Counsel not shown ineffective 
In an earlier action, the juvenile division found appellant biological parent guilty of neglecting child, and parent did not appeal that judgment. That finding rendered parent’s consent unnecessary in a later action by respondent guardians to adopt child and, in effect, terminate parent’s parental rights. In an action to terminate parental rights, parent had the right to appointed counsel. Appointed counsel had to be “effective in providing his [or her] client with a meaningful hearing based on the record.” The record on appeal from the later judgment did not include documents from the earlier action even if included in an appendix to the record on appeal from the later judgment. Parent included those documents to show that the earlier judgment was jurisdictionally flawed because he received no notice of the action as the putative father. But parent’s biological fatherhood was revealed only at the end of the earlier action, so no such notice was due in the earlier action. And, even if notice was due in the earlier action, a challenge to the earlier judgment in the later action would have constituted a collateral attack on the earlier judgment. For those reasons, arguments related to the earlier judgment would have been meritless arguments that trial counsel need never make to be effective. To be ineffective meant that trial counsel was effectively absent, which the record of trial counsel’s rebutted, with trial counsel’s examination and cross-examination of witnesses on the allegations in dispute in the later action. The Missouri Court of Appeals affirmed the judgment granting the respondent guardians’ adoption of child. 
IN THE MATTER OF A.R.H., a minor, J.M.J. and B.L.N.J., Respondents vs. E.R.T., Jr., Appellant
Missouri Court of Appeals-Southern District – SD38536

Insurance

Loss of attraction coverage explained 
Missouri law applied because it did not conflict with the law of Florida, plaintiff’s home state. Multiple insurers signed on to plaintiff insured’s all-risk property insurance master policy with varying endorsements that replaced the master policy provisions respectively. Master policy coverage included business interruption, which insured experienced due to COVID. COVID did not damage property by tangible impact and physical alteration, so coverage related to direct physical loss or damage to property did not apply. Limits on loss of attraction coverage prevented excess coverage. One insurer’s special perils business interruption extension applied to government closures of insured’s premises, but insured’s petition did not allege those facts. Endorsements excluding loss by virus or communicable disease replaced loss of attraction coverage in the master policy, except one. That one insured’s endorsement was recited on the declarations page, but not included by endorsement, and provisions specific to micro-organisms were ambiguous. Other than that insured, the Missouri Court of Appeals affirmed judgment on the pleadings for insurers. 
(Overview summary)
BBX Capital Corporation vs. Scottsdale Insurance Company, Et al.
Missouri Court of Appeals-Western District - WD86632

Miscellaneous actions

No cause of action for spoliation 
In an underlying action, plaintiffs sought damages for an assault by employees on a theory of respondent superior and filed a motion alleging that the employer had committed spoliation of evidence. The circuit court granted that motion and reserved the remedy for trial. Plaintiffs then filed a separate action seeking damages solely for that spoliation of evidence. Spoliating evidence could result in discovery sanctions and an adverse inference in the underlying action, for “all is presumed in hatred of the spoliator [,]” but did not constitute a separate claim for damages. Besides, the spoliation was not the cause of damages alleged in the underlying action, the conduct of the employees was. The petition for spoliation stated no claim for relief. The circuit court dismissed the spoliation action and the Missouri Court of Appeals affirmed that judgment. But the appeal of the dismissal was not wholly frivolous so the Court of Appeals denied respondents’ motion for sanctions. 
(Overview summary)
William Sandbach, et al., Appellants, v. KMS-KFC, LLC, et al., Respondents.
Missouri Court of Appeals-Eastern District – ED112808

Personal injury

Three-year statute of limitations applied to crash with police officer 
Statute set a three-year limit on filing actions against certain officers acting in their official capacity. That statute barred an action against a police officer who rear-ended plaintiff while on duty filed more than four years after the event. Without a claim against the officer, there was no claim against the officer’s employer. The circuit court dismissed the action and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Deborah Bailey, Appellant, vs. City of St. Louis, and Brendan Byers, Respondents.
Missouri Court of Appeals-Eastern District – ED112520

Tort Victims’ Compensation Fund explained 
The elements of a claim on the Tort Victims’ Compensation Fund included claimant’s status. Two statuses qualified. The first was a party to an action for either wrongful death or personal injury, which excluded claimants in a workers’ compensation action, because workers’ compensation actions were a fault-free substitute for wrongful death or personal injury actions. The second was a tort victim settling a claim for policy limits, which excluded claimants who did not settle. Appellant had an uncollected workers’ compensation award. The fund and the Missouri Labor and Industrial Relations Commission denied the claim and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Christopher R. Ellis vs. Tort Victim's Compensation Fund
Missouri Court of Appeals-Western District – WD87443

No duty of care between passengers 
The elements of negligence included defendant’s lapse in a duty to protect plaintiff’s decedent. Whether defendant had any duty to protect plaintiff’s decedent was a question of law. The law imposed a duty on persons who unambiguously undertook the protection of another. That did not describe defendant passenger on whose lap the decedent sat in an all-terrain vehicle without a seat belt because plaintiffs did not allege any benefit, assurance, or inducement to decedent. Rule governing enlargement of time allowed late filing for excusable neglect without a specific finding. The time to appeal the dismissal of all claims against one party did not start until judgment in the action resolved all claims as to all parties. The petition failed to state a claim against defendant passenger so the circuit court did not err in dismissing the petition as to defendant passenger. 
(Overview summary)
Carrie L. Gruhn and Izeck K. McCown, By Next Friend Carrie L. Gruhn vs. Joseph G. Schwermer, and Joshua R. Elam
Missouri Court of Appeals-Western District – WD87371

Exclusion of expert testimony reversed 
The foundation for admitting expert testimony included the expert’s qualifications and the testimony’s relevance and reliability. The record showed that “extensive education, training, and experience” “abundantly” qualified appellant plaintiff’s expert, which the absence of other hypothetical qualifications did not negate. Disputes over standards went to the weight of the evidence and not its admissibility. Kansas’ substantive law of products liability did not require plaintiff to show a better design. The circuit court erred in excluding the expert testimony and entering summary judgment for defendant. 
(Overview summary)
Christopher Hanshaw vs. Crown Equipment Corp., Et Al.
Missouri Court of Appeals-Western District – WD86389

Post-conviction

Judgment on the wrong motion was not final 
Filing deadlines were part of the circuit court’s authority to rule on motions. The initial motion was timely but the amended motion was a day late. Nevertheless, the circuit court ruled on the amended motion. The amended motion included some, but not all, of the initial motion’s claims. Therefore, ruling on the amended motion constituted a ruling on some, but not all, of the initial motion’s claims. Because some of the initial motion’s claims remained undisposed, the judgment was not final, and the Missouri Court of Appeals dismissed the appeal. 
JEFFREY L. BRUNER, Appellant v. STATE OF MISSOURI, Respondent
Missouri Court of Appeals-Southern District – SD38430

Strategic considerations in choosing whether to object discussed 
The elements of a claim for ineffective assistance of counsel included substandard practice that prejudiced movant. Trial counsel’s choice to make no objection to evidence showed that trial counsel was ineffective only if an objection had merit and deprived movant of a fair trial. The choice of making no objection could also be a matter of trial strategy that, if sound, could not constitute substandard practice. Objecting to breath test results because the administering law enforcement officer used hand sanitizer would have been contrary to trial counsel’s strategy and meritless as speculation. The evidence of guilt negated prejudice. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Robert A. Thomas, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED112679

Real Estate

Prescriptive easement awarded
The law did not favor actions for prescriptive easements and required clear and convincing evidence of each element. The elements of an action for prescriptive easement were matters of the circuit court’s fact-finding that were due deference on appeal, including visible use, meaning discoverable by a reasonable person. A reasonable person could have discovered plaintiff’s use of the disputed land because plaintiff and their predecessors had used and maintained it for 30 years, and the sewer line beneath the disputed land had a an opening that anyone could see and smell. The circuit court’s finding in plaintiff’s favor was not against the weight of the evidence. The award of a prescriptive easement supported permanent injunctions to remove obstacles to the disputed land and cease interference with its use. The judgment described the land with sufficient certainty to moot a claim about an earlier survey. A ruling on an issue on which one party presented no evidence could not be against the weight of the evidence. Because each point relied on had to be distinct, each respective argument had to be correspondingly distinct, and an attempt to incorporate by reference was reason enough to deny a point relied on.
PAUL E. JOKERST, JR. and VERONICA SUE JOKERST, Plaintiffs-Respondents v. RONALD HUCKABY and DIANE M. HUCKABY, Defendants-Appellants and F & C BANK, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD38462