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Case summaries for April 1 - April 7, 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 | Civil | Criminal | Evidence | Family | Insurance | Miscellaneous Actions | Post-Conviction | Real Estate | Workers' Compensation


Non-Contested Case and De Novo Review Explained 
City ordinances setting forth the procedure on conditional use permit do not provide for an adversarial evidentiary hearing, so that procedure constitutes a non-contested case. A non-contested case does not result in a record subject to judicial review but is subject to de novo review. De novo review means a trial: deciding the application by applying law to the facts found on a record made in circuit court, and not merely reviewing the city’s file for justification of the city’s ruling. A discretionary ruling must stand on supporting facts, which must stand on evidence of record, which the city failed to offer during trial de novo. Failure to file a motion to amend the judgment waived error as to whether the circuit court’s findings supported its order of mandamus. The evidence showed that perfect compliance with a planning policy document was neither necessary, nor even possible, and that the applicant satisfied that condition. 
BG Olive & Graeser, LLC, and Forsyth Investments, LLC., Respondents, v. City of Creve Coeur, Missouri, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109879 


Punitive Damage Remittitur Affirmed  
A statute caps awards of punitive damages. The Missouri Constitution’s protections of the right to trial by jury applies to actions that existed in 1820 and analogous actions. That does not include plaintiff’s action for breaching a duty of loyalty because that action sounds in contract, for which punitive damages were unavailable in 1820. It also does not apply to plaintiff’s action for tortious interference with business because neither that nor any analogous action existed in 1820 as to personal property. Further, it cannot apply to plaintiff’s action for conspiracy without the underlying actions. The capped award does not violate the requirements of due process considering defendant’s bad conduct, ratio to actual damages, and awards in similar cases that gave defendant notice of the possible consequences of its scheme. Defendant’s remaining points are multifarious and preserve nothing for review. Therefore, the circuit court did not err when it determined a remittitur under the statutory cap, and the Supreme Court affirms the judgment. 
All Star Awards & Ad Specialties, Inc., Appellant-Respondent, vs. HALO Branded Solutions, Inc., Respondent-Appellant. 
(Overview Summary) 
Supreme Court of Missouri - SC99007 


Dangerous Offender Status Not Shown 
Statutes provide the elements of an enhanced sentence as a dangerous offender and connects those elements with “and” to signify a conjunction. Statutes also provide the procedure for establishing those elements, which includes pleading facts describing those elements, but the State pleaded less than all the elements. The approved instruction’s conflict with those statutes does not alter that result because the substantive law is in the statutes. Remanded for re-sentencing.  
State of Missouri, Respondent, vs. Shawn W. Yount, Appellant. 
(Overview Summary) 
Supreme Court of Missouri – SC99317 


911 Call Admissible 
Cumulative evidence in a bench trial, even erroneously entered, virtually never creates prejudice because it is not outcome determinative. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, which describes a 911 call, because it described the facts alleged against defendant. The recording and other evidence displayed the elements of an excited utterance, an exception to the hearsay rule, which are “immediate and uncontrolled domination of [her] senses as a result of the shock produced by the event.” The recording also relayed a prior inconsistent statement of a witness, the caller and victim, admissible by statute.  Remanded to correct clerical errors in judgment nunc pro tunc. 
STATE OF MISSOURI, Plaintiff-Respondent vs. LUTHER JOHN CHRISTIANSON, JR., Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37032


Termination of Parental Rights Unsupported by Substantial Evidence 
Statutes permit termination of parental rights, when in a child’s best interest, on specified grounds. Grounds must appear by clear, cogent and convincing evidence, meaning “evidence that ‘instantly tilts’ the scales in favor of termination.” Grounds include failure to rectify the grounds that supported State intervention. Those grounds included failure to maintain employment and financially support children, but that does not require monetary reimbursement to the State foster care. Appellant’s low wages cannot support termination of parental rights, and contributions of clothing and toys rebut that charge, while the record also shows progress in efforts to comply with a social service plan. Grounds also include failure to provide suitable housing, which statutes characterize as abuse, neglect, or unfitness. But the record does not establish any dangerous condition in appellant’s residence, and the State’s permission for appellant to have unsupervised visitation there rebuts that allegation. “Notably, [appellant’s conduct] reflects on her desire ‘to continue the parent-child relationship.’” 
In the Interest of: T.M.P. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109843 and ED109844


MMPA Violations Not Covered 
Plaintiffs sought equitable garnishment against insurer on a judgment for damages based on insured’s Missouri Merchandising Practices Act violations. But those violations consisted of fraud, which is intentional, and expressly excluded from coverage. That includes the grounds for punitive damages. Voluntary dismissal of all claims against all parties except the claim granted against appellant made the judgment final and subject to appeal. 
Estate of Max E. Overbey, Deceased, By Glenna J. Overbey, Personal Representative, and Glenna J. Overbey vs. Universal Underwriters Insurance Company, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84401

Miscellaneous Actions

Individual Liability Retained in Public Accommodations Under the Human Rights Act  
The Missouri Human Rights Act addresses disability discrimination in public accommodations. Amendments re-defined the term “person” without explicitly including individuals, but retained individual liability for such discrimination, because the General Assembly only makes such changes plainly. The Act’s remedies are exclusive and pre-empt common law remedies, for negligent infliction of emotional distress and negligence, based on allegations of discrimination in a public accommodation due to plaintiff’s disability.     
Garrett Loomis vs. Scott Bowers and Lea Booker 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84424 


Guilty Plea Presumed Okay 
The law presumes that movant was capable of understanding charges against him and consulting with counsel, movant has the burden to show otherwise, and even a degree of mental illness does not necessarily rebut the presumption of competence. Movant’s evidence—expert testimony from movant’s records—did not have to outweigh first-hand testimony from plea counsel as to movant’s capacities. Judgment denying relief affirmed.  
MICHAEL ANDREW HURST, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD37194

Real Estate

Contract Was Complete 
The parol evidence rule generally bars extrinsic evidence inconsistent with an unambiguous integrated contract’s wording. Exceptions include “fraud, mistake, accident or duress [;]” none of which the circuit court found, and excluded or disbelieved evidence does not alter that result. Sellers’ remorse does not demonstrate inequity, and getting the price as negotiated does not constitute unjust enrichment. “The general rule of freedom of contract includes the freedom to make a bad bargain.” 
Lloyd H. Hammond and Nancy Hammond vs. Robert Toole and Tisha L. Toole and F & C Bank 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84598

No Liability for Invitees in Common Area 
A real property lease is subject to cancellation by one party when the other party commits a material breach of duty. The duty not to permit specified activities depends on the ability to control those activities, which lease delegated to the tenant in leased areas and to the landlord in common areas, so the tenant had no duty to control activities in the common areas. Tenant’s directives to business invitees in leased area did not prove any control over business invitees in common area. Therefore, disruptive behavior of tenant’s invitees in the common areas did not constitute a breach of tenant’s duty, justify cancelling the lease, and supporting the right of immediate possession by judgment of unlawful detainer. 
CP3 BP Associates, LLC, Respondent, vs. CSL Plasma, Inc., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109656

No Reformation of Deed on Unilateral Mistake 
Reformation of a deed may occur upon the parties’ mutual mistake, meaning that “both have done what neither intended.” The quantum of proof is clear, cogent, and convincing evidence. The circuit court found that parents intended to convey a life estate in land to themselves, and a remainder to two of their children; but the deed added a third child to the remainder by the parents’ scrivener’s error. That scrivener’s error constituted a unilateral mistake, which supports reformation only when concealed by bad faith conduct, which is absent from the pleadings and record. Reversed and remanded for a judgment denying reformation. 
LILLIAN SINGLETON, Plaintiff-Respondent vs. SHEILA SINGLETON, et al., Defendants-Appellants
Missouri Court of Appeals, Southern District - SD37106

Workers’ Compensation

Pre-Existing Injury Not Qualified 
Statutes governing the Second Injury Fund provide compensation when permanent total disability results from a primary work-related condition combined with any one of several pre-existing conditions that meet the statutes’ description. That description includes a pre-existing condition that “significantly aggravates or accelerates the subsequent work-related injury [.]” The record supports findings of the Labor and Industrial Relations Commission, that pre-existing deafness did not significantly aggravate or accelerate claimant’s knee injuries and that the knee injuries alone did not result in permanent total disability, so the Court of Appeals affirms the award. 
Robert Schebaum vs. Treasurer of the State of Missouri-Custodian of the Second Injury Fund 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84765