Case summaries for March 31 - April 6, 2023

ADR | Appellate | Civil | Criminal | Employment | Evidence | Family | Juvenile | Personal Injury | Post-Conviction

ADR

No evidence supported motion to compel 
On a second motion to compel arbitration, the movant has the burden of proof, including proof of an arbitration agreement. None appears in the record. Therefore, as with the first motion to compel arbitration, the circuit court did not err in denying the second motion to compel arbitration.  
QUEEN BARRETT, Respondent vs. MALLORY MOVING & STORAGE, INC., d/b/a APPLE MOVING OF ROLLA, Appellant 
Missouri Court of Appeals, Southern District - SD37663

Appellate

Certification of judgment for appeal erroneous 
Rule allows certification of a judgment for appeal when the judgment disposes of less than all claims as to all parties, but only when the judgment disposes of at least one claim. A claim is all theories on one set of allegations. The allegations in respondent’s petition were that appellant was entitled to records, and to penalties and an attorney fee, because appellant willfully and purposely violated the Sunshine Law. The judgment concluded that appellant violated the Sunshine Law but was silent on willful and purposeful conduct. “[W]hether the violation was done ‘knowing’ and ‘purposely’ [was] factually intertwined with, and part and parcel to, the claim of the  ... right to have access to the  ... records [,]” so the judgment disposed of less than one claim. Certification was erroneous. Respondent’s motion for a sanction is not without merit, and appellant’s deficient briefing does not support its cause, but the circuit court’s judgment moves the Court of Appeals to deny the motion for sanctions without prejudice.  
Willa Hynes vs. Missouri Department of Corrections 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85329 and WD85361

Civil

Forum non conveniens discussed 
A judgment of dismissal based on forum non conveniens is final and subject to appeal, even when purportedly done without prejudice, because it has “the effect of terminating the case in the [plaintiffs’] chosen forum.” The judgment’s wording shows that the circuit court intended to dismiss the action as to all claims and all parties. Rule governing change of venue requires a motion filed before the rule’s deadline, allegations and evidence of good cause, and supporting evidence. Also, a Missouri circuit court has no authority to transfer venue to an Iowa court, and movant did not show that the Missouri venue was improper. To prevail on a motion to dismiss for forum non conveniens requires application of the standards of convenience, and findings of fact relevant to those standards, as to which movant offered neither allegations nor evidence. Rule governing sanctions requires a separate motion. Without those things, the circuit court had no authority to grant the motions. Remanded for further proceedings.
Peter Loew and Kathy Loew vs. Heartland Trophy Properties, Inc. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85343

Criminal

Registration requirement depends on clean record provision 
In an action for declaratory judgment, appellant argued that appellant was never required to register as a sex offender. Appellant pleaded guilty to an offense in 1995, only later did Missouri law require registration for appellant’s offense, and that law cannot apply retroactively. But Missouri law now requires registration of any person ever required to register under federal law. Whether federal law ever required appellant to register depends on several factors. The federal law was effective in 2008, and generally required registration for appellant’s offense until 2010, so appellant was required to register for two years. But the federal law also includes an exception that specifically reduces the registration requirement for appellant’s offense to 2005—before the federal registration requirement even existed—for a “clean record.” Therefore, the clean record provision determines whether appellant was ever required to register, and whether that provision applies remains subject to a genuine dispute. Summary judgment for respondents reversed and remanded for further proceedings. 
Liana MacColl (formerly known as Liana M. Bradford), Appellant, vs. Missouri State Highway Patrol and Boone County, Missouri, Sheriff, Respondents. 
(Overview Summary) 
Supreme Court of Missouri - SC99656

Counsel’s conflict of interest issues are for post-conviction procedure 
On direct appeal, an appellate court reviews only the evidence supporting the conviction. Sufficient physical evidence corroborated defendant’s statements to satisfy the corpus delecti rule, the elements of first-degree assault, and armed criminal action. Whether trial counsel was free of conflicts of interest is a matter for post-conviction relief, including a hearing on what the circuit court knew and did, and not for direct appeal.  
State of Missouri vs. David A. Harris 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84804

Employment

Election to unionize confirmed 
Missouri Constitution provides that employees may bargain collectively. Certain county investigators and lawyers voted to unionize, through an election not conducted by the State Board of Mediation, which disclaimed any authority over the election. Statutes created a Board of Mediation but gave the Board no authority over unionization elections. Legislative amendments sought to change that, giving the Board authority to conduct unionization elections, but exempted public safety unions in violation of constitutional Equal Protection provisions, so that legislation was void ab initio. That restored the status quo ante the amendments, in which the Board had no authority over unionization elections. The County refused recognition of the union for lack of Board supervision. In a declaratory judgment action, the circuit court granted summary judgment for the union. Affirmed.  
St. Louis Police Officer's Association, Respondent, vs. St. Louis County, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110948

Evidence

Admission eliminates need for evidence  
Federal statute requires States to maintain a registry of sex offenders, which must include certain persons, and the corresponding Missouri statute requires those persons to register. Appellant was such a person under trial counsel’s judicial admission in circuit court. Appellant did not preserve an objection to hearsay objection, because appellant objected to it only the first time the State offered it, and did not object the second time the State offered it, nor when appellant procured the same testimony on cross-examination. “[E]ven under a plain-error analysis, ‘hearsay evidence offered without objection is not plain error.’” Convictions affirmed.  
STATE OF MISSOURI, Respondent v. ERIC CHRISTOPHER GIBBS, Appellant 
Missouri Court of Appeals, Southern District - SD37369 and SD37370

Family

Modification contingent on relocation struck from judgment 
A party whose relief is granted in part and denied in part is aggrieved and has standing to appeal. A point relied on does not preserve any part of an argument that exceeds the point relied on. A guardian ad litem is not required to make a recommendation and, when the guardian ad litem does make a recommendation, the circuit court need not follow it. The guardian ad litem’s recommendation included no explanation, so the circuit court’s departure from that recommendation did not show that the judgment was against the weight of the evidence. In an action for dissolution of marriage, a judgment may provide for events that are certain to occur, like the passage of a certain time. But the circuit court purported to provide for an event that might never occur: relocation. Relocation is the subject of a separate procedure including notice, an opportunity to be heard, and an order. “Because the future contingent parenting time provision seeks to predetermine matters governed by [the relocation statute], it cannot stand.” Remanded to amend the judgment accordingly.  
DESIREE (RAMOS) SCHUPPAN, Petitioner-Appellant v TONY W. RAMOS, IV, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD37503

Omission of custody provisions requires reversal 
Circuit court retains authority to issue an amended judgment for 90 days after the issuance of the initial judgment, the date of entry determines the date of issuance, and the date of receipt by a party’s counsel is not relevant. The amended judgment need have only the additional language to be integrated into the initial judgment. But the amended judgment omitted written findings that support rejection of the parties’ proffered parenting plans, custody provisions for school holidays and vacations, and other matters required by statute. Those omissions necessitate reversal and remand for a parenting plan in compliance with the statutes.  
Mikala E. Harris, Respondent, vs. David W. Harris, Jr., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110533

Juvenile

Juvenile officer’s investigation okay 
Statutes and rules require the juvenile officer to conduct an investigation and prepare a report for the circuit court’s use in deciding whether to dismiss a juvenile action and certify the subject juvenile for a criminal action. The circuit court may also order the investigation and report supplemented, but appellant did not seek that relief, and only argued that the investigation was insufficient at the evidentiary hearing. But the report addressed all statutory factors, and appellant did not show any inadequacy in the investigation or report on appeal, so the Court of Appeals affirms the judgment dismissing the juvenile action and certifying the subject juvenile for a criminal action.  
IN THE INTEREST OF P.T.M., BARRY COUNTY JUVENILE OFFICE, Respondent v. P.T.M., Appellant 
Missouri Court of Appeals, Southern District - SD37606

Personal Injury

Tolling for continuing care and treatment discussed 
Statute of limitations against a physician was two years, and physicians have a duty of continuing care, so the statute starts running when continuing care and treatment ends. The allegations of the petition, filed in 2018, alleged events from 2012 through 2016. The summary judgment record established, beyond genuine dispute, that an earlier course of care and treatment continued only during 2012. The summary judgment record also established, beyond genuine dispute, that no care or treatment occurred in 2013 and 2014 to toll the statute of limitations. Therefore, the earlier claim lapsed and the circuit court did not err in entering summary judgment for defendant as to the earlier claim. But as to a later course of care and treatment alleged from 2015 through 2016, “the undisputed facts support competing reasonable inferences about [when plaintiff] terminated his relationship with” defendant. The patient going off prescribed medication, alone, does not prove the termination of the physician patient relationship against a competing inference arising from other evidence. The circuit court erred in entering summary judgment for defendant on the later claim. 
Dane Templeton vs. Charles Orth, D.O., and Orthopedic Surgeons, Inc. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85405

Post-Conviction

Search of cell phone with defendant’s consent disclosed more offenses 
The record supports the circuit court’s findings and conclusions, that defendant told trial counsel that exculpatory evidence was on defendant’s cell phone, and that trial counsel carefully and strategically negotiated an extraction of cell phone data with defendant’s consent. Because the extraction occurred jointly with the State’s expert, and entering the passcode made discovering the evidence a foregone conclusion, letting the State’s representative see defendant’s passcode did not prejudice defendant. Failure to preserve an issue for appeal is grounds for relief only if the issue on appeal would have made a difference, and preserving an issue on the execution of a warrant would have made no difference, because the discovery of more offenses recorded on the cell phone resulted from a consensual search and not the warrant. And, even if the search was pursuant to the warrant, the manner of its execution made no difference, because “by necessity government efforts to locate particular files will require examining many other files to exclude the possibility that the sought after data are concealed there.” Statute’s provision for consecutive sentences on certain multiple offenses did not support severance of multiple counts for separate trials, and the circuit court made clear on the record that consecutive sentences were for multiple victims, not for multiple incidents in one trial.  
Joanthony D. Johnson vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85067 

Allegation of misadvice refuted 
On a claim of ineffective plea counsel, plea counsel’s misadvice about sentencing can constitute substandard performance, because it can lead to a guilty plea that is not knowing and intelligent. But the circuit court was entitled to believe movant’s plea hearing testimony, and plea counsel’s motion hearing testimony, that plea counsel gave accurate advice. Rule provides for a colloquy during the sentencing hearing to determine whether probable cause exists to believe that counsel was ineffective. But omitting that colloquy, after movant fainted on hearing his sentence, was not grounds for post-conviction relief because it was not relevant to “either the voluntary nature of the plea or the length of the sentence.” 
JOSHUA JOHNSON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD37528

No exception to timely filing shown 
Failure to timely file the initial motion waives all relief, with specified exceptions, which include third party interference. Third party interference means that active interference by a third party beyond movant’s control constituted the sole cause of untimely filing despite movant doing everything reasonably possible to file timely. Movant alleged that COVID restrictions prevented timely filing, but the record showed that COVID restrictions lifted in time for him to prepare the motion, and that movant had all the resources necessary for timely filing. The circuit court did not clearly err in dismissing the motion for late filing. 
JAMES W. HENNEHA, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD37556