Case summaries for Apr. 2 - 8, 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.
Judgment Sharing Facts with Other Parties Was Final
Statutes and rules give Court of Appeals authority over judgments when final, including those certified as final, which may include a judgment disposing of all claims against a party. All claims against a party constitute a judicial unit regardless of facts shared with other judicial units. Re‑transferred to Court of Appeals. “[T]he fact the circuit court’s judgments for the Curators were based on sovereign immunity ... decreases the risks” of inconsistent judgments.
Elizabeth Butala, et al., Appellants, vs. The Curators of the University of Missouri, Respondent.
Supreme Court of Missouri - SC98517
Mandate Controls on Remand
Mandate circumscribed circuit court’s authority with specific instructions on first, beyond which circuit court orders were null, so failure to consider relevant factors in determining maintenance as directed requires a second remand.
Michael R. Taylor, Respondent, v. Elaine M. Taylor, Appellant.
Missouri Court of Appeals, Eastern District - ED108724
Motion for Automatic Change of Judge Voids Later Rulings
“The filing of a timely application for change of judge deprives the court of further authority to do anything in the case other than grant the application.” That includes an application from insurer intervenor. The filing deprived respondent judge of all authority except to transfer the action to another judge. Preliminary writ in prohibition made permanent with directions to void orders issued after the filing of a motion for automatic change of judge.
State ex rel. COUNTRY Mutual Insurance Company, Relator, vs. The Honorable Brian H. May, Respondent.
Supreme Court of Missouri - SC98650
Dismissal Without Prejudice in Kansas Bars Action in Missouri
Properly pleading an affirmative defense, with support in all necessary facts established without genuine dispute, entitles a movant to summary judgment. The elements of claim preclusion include an earlier judgment on the merits. The preclusive effect of a judgment depends on the law of the jurisdiction rendering a judgment. A judgment on the merits includes a second voluntary dismissal, under Kansas law, so plaintiffs’ voluntary dismissal of their Kansas action, after dismissal of a Missouri action, bars a third filing of an action in Missouri. That the Kansas court noted the dismissal as “without prejudice” is irrelevant.
Reva Bell, et al vs. Curators of the University of Missouri, et al
Missouri Court of Appeals, Western District - WD83898
Sex Offender Distance Starts at Property Line
The rule of lenity only applies when a court can only guess at a statute’s meaning. Statutes bar sex offenders from residing within 1000 feet of a school, which means the property lines of the school property. “Simply put, the point of the statute is to protect schoolchildren, not school buildings.” Conviction affirmed.
State of Missouri, Respondent, vs. Matthew James Lee McCord, Appellant.
Supreme Court of Missouri - SC98546
Computer-Generated Invoice Admissible
When determining a price is impossible without starting the work, the parties can make an enforceable contract without a price by implicit agreement to set the price later. Evidence that plaintiff determined a price through “a unified billing platform used by both the insurance and mitigation industries” with testimony on the data entered, and the fair and reasonable nature of the result, constituted a foundation for admitting the price into evidence.
Michaud Mitigation Inc. d/b/a Puroclean Restoration Professionals, Respondent, v. Ray M. Beckett, Appellant.
Missouri Court of Appeals, Eastern District - ED108868
Personal and Advertising Coverage Discussed
Insurer’s duty to defend may arise, not only from allegations in petition against insured, but also from facts discoverable on a reasonable investigation. General commercial liability policy covered personal and advertising injury, including disparagement of competitor’s product, which petition alleged as conduct underlying several claims for relief. Those claims covered are not limited to defamation. Exclusions, for claims arising from infringements on intellectual property and confidential information, did not apply even if they were concurrent proximate causes of damage. The duty to indemnify depends on facts as finally determined. Insurer’s refusal to defend bound insurer to insured’s settlement. Bad faith refusal to defend or settle, including failure to investigate, renders insurer liable for a resulting judgment without regard to policy limits. Statutes governing vexatious refusal to pay measure damages by the amount of the injured third party’s injury from refusal to pay damages, as set forth in settlement of claims, and not by the insured party’s damages from refusal to defend or indemnify. Insurer’s liability for refusal to defend includes the cost of insured’s defense starting with insured’s demand for coverage. An award of attorney fees on appeal stands on the same grounds as an award of attorney fees in circuit court.
Sprint Lumber, Inc., Scott Laderoute, Jerry Downey, Sheila Higdon, Jess Reynolds, and Ray Meng vs. Union Insurance Company, Continental Western Group, LLC
Missouri Court of Appeals, Western District - WD82930 and WD82939
Action Before Judicial Finance Commission Filed Too Late
Statutes charge circuit court expenses to constituent county’s treasury. That can include attorney fees for defending propriety of expenses, but that issue cannot come to the Court of Appeals until it has come to the Judicial Finance Commission. That Commission resolves disputes between county commissions and circuit courts and judicial rulings do not alter that authority. Appellants’ challenge to circuit court budget, however characterized, stood on reasonableness of expenditures. Operating rule set a deadline for filing with the Commission, subject to good cause, meaning a legally sufficient reason. Legally sufficient reasons do not include tactical delay.
The Board of Commissioners of the County of Franklin, State of Missouri, Tim Brinker, Presiding Commissioner, Todd Boland, First District Commissioner, Dave Hinson, Second District Commissioner, and Angela Gibson, Auditor of the County of Franklin, State of Missouri, Appellants, vs. Twentieth Judicial Circuit of the State of Missouri by The Honorable I.I. Lamke, Presiding Judge, Respondent.
Supreme Court of Missouri - SC98442
Approval of Private Road Altered Standards
Because zoning ordinances derogate common law property rights, courts construe them “in favor of the property owner against the zoning authority [;]” and whether an ordinance supported County Board of Adjustment’s ruling is a question of law. Ordinances provide that any street is a public street unless Planning Commission approved a street as a private street. Private street improvements are not subject to ordinance’s public street standards, ordinances merely “encouraged” appellant to meet public street standards in developing streets already approved as private. Circuit court’s judgment reversed and remanded to Board of Adjustment with directions to grant appellant relief from Planning Commission’s stop work order.
EMERALD POINTE, LLC, Plaintiff-Appellant vs. TANEY COUNTY PLANNING COMMISSION and TANEY COUNTY BOARD OF ADJUSTMENT, Defendants-Respondents
Missouri Court of Appeals, Southern District - SD36725
Stalking Not Shown
Statutes allow an order of protection based on stalking. Elements of stalking includes a pattern of conduct like unwanted contacts, serving no legitimate purpose, and causing alarm. A finding of such conduct must stand on proof and not mere speculation. Legitimate purposes include ejecting trespassers. Proof of alarm requires more than to “assert a bare answer of 'yes' when asked if [he or she] was alarmed [;]” it requires evidence of subjective and objective grounds for fear of physical danger. Initiating a contact precludes a finding that the contact was unwanted. A single incident cannot constitute a pattern of conduct. Judgment entering full order of protection reversed and vacated.
R.J.D. vs. Robert W. Gauert
Missouri Court of Appeals, Western District - WD83817
Stalking Not Shown
Statutes allow an order of protection based on stalking. Elements of stalking includes a pattern of conduct like unwanted contacts, serving no legitimate purpose, and causing alarm. A finding of such conduct must stand on proof and not mere speculation. Legitimate purposes include ejecting trespassers. Proof of alarm requires more than to “assert a bare answer of 'yes' when asked if [he or she] was alarmed [;]” it requires evidence of subjective and objective grounds for fear of physical danger. Initiating a contact precludes a finding that the contact was unwanted. When appellant was merely “offensive and used incredibly inappropriate language, but ... did not threaten” respondents, no basis for alarm existed. A single incident cannot constitute a pattern of conduct. Judgment entering full order of protection reversed and vacated.
L.M.D. vs. Robert W. Gauert
Missouri Court of Appeals, Western District - WD83816
Stalking Not Shown
Statutes allow an order of protection based on stalking. Elements of stalking includes a pattern of conduct like unwanted contacts, serving no legitimate purpose, and causing alarm. A finding of such conduct must stand on proof and not mere speculation. Legitimate purposes include ejecting trespassers. Proof of alarm requires more than to “assert a bare answer of 'yes' when asked if [he or she] was alarmed [;]” it requires evidence of subjective and objective grounds for fear of physical danger. No reasonable basis for alarm existed when appellant photographed respondent in a public place, nor in other conduct not directed at respondent. A single incident cannot constitute a pattern of conduct. Judgment entering full order of protection reversed and vacated.
G.E.G. vs. Robert W. Gauert
Missouri Court of Appeals, Western District - WD83815
Case of Catholic Clerical Abuse Survives Summary Judgment
Defendants were the superiors of a priest against whom plaintiff alleged sexual abuse. Claims of negligent failure to supervise clergy and children excessively entangle the State in interpretations of religious “doctrine, policy, and administration” in violation of the United States Constitution’s First Amendment. Claims of intentional failure to supervise require no impermissible examination of ecclesiastical decisions, so they do not entangle the State in Church affairs. On a claim of intentional failure to supervise, plaintiff’s evidence includes “vague or oblique euphemisms” in personnel records suggesting that defendants had reason to know of sexual abuse by priest and plaintiff’s expert analysis of personnel records before plaintiff’s injury, which raised a genuine dispute as to the material facts alleged in defendants’ summary judgment motion.
John Doe 122, Appellant, vs. Marianist Province of the United States and Chaminade College Preparatory, Inc., Respondents, and Fr. Martin Solma, Defendant.
Supreme Court of Missouri - SC98307
Evidentiary Rulings Affirmed in Defendants’ Verdict
Plaintiff could not show any prejudice from circuit court’s order quashing a subpoena duces tecum directed to claims that were abandoned before trial or mooted by jury’s verdict. Appellant cannot prevail on a ruling never made: whether to quash a subpoena never served. Out-of-court unprompted declarations of defendants’ employees, denying a basis for defendants’ liability, did not constitute admissions because they were not against defendants’ interests and were consistent with defense at trial. Decedent’s earlier visit to hospital did not require hospital to preserve video recordings of the earlier visit. Circuit court did not err in restricting plaintiff’s cross-examination of an expert witness to the witness’s area of expertise, especially when the witness denied expertise in the subject of the proposed cross-examination, and denied having an opinion on the subject.
Roy Dalbey vs. Heartland Regional Medical Center and Ashok Gokhale, M.D.
Missouri Court of Appeals, Western District - WD83602
Demand Must Precede Petition for Recoverable Transfer
Statute governing recoverable transfers provides that a written demand from appellant, timely received by the personal representative, to bring an action for an accounting was a condition precedent to appellant’s action for accounting. Appellant’s petition praying for an accounting was no substitute for the demand from the appellant. The time to file starts with the decedent’s death without regard to when the petitioner receives an adjudication that qualifies their claim. The personal representative’s failure to timely comply with that demand, by filing the demanded action or disclosing specified information, is the only exception to the statute of limitations for filing an action for accounting against the estate in circuit court, and no other conduct of the personal representative tolls the time period: neither for hardship, nor on equitable theories, nor by estoppel.
In the Estate of: ERNEST WINDERS, JR., Deceased, NADIENE LUCILLE BURFORD, Petitioner-Appellant v. LINDA GUSTIN, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36733
Trust and Settlors Are Separate Entities
Appellants owned a car that was totaled. Appellants’ revocable trust then bought another car to replace the totaled car. Statutes reduce a replacement car’s price, on which the purchaser pays sales tax, by the value of the car replaced. But the owner of the replaced car and the owner of the replacement car must be the same person. Statutes also define a person to include a trust so, for sales tax purposes, the trust and its grantors, are separate entities. Since separate entities owned the replaced car and bought the replacement car, the reduction in purchase price does not apply. “Statutory entities [receive] certain benefits under the law not afforded to natural persons, and in exchange, they are also subject to certain restrictions.”
David and Gale Collison, Appellants, vs. Director of Revenue, Respondent.
Supreme Court of Missouri - SC98743
Statutory Employee’s Circuit Court Action Barred
Statutes provide that workers’ compensation constitutes the exclusive remedy for the job-related injury of a statutory employee against a statutory co-employee or statutory employer, the status of which the record shows through “an unbroken chain of contractor-subcontractor relationships [.]” The statutes’ exception for common carriers does not apply to the parties because it applies only when a “for-hire motor carrier is the employer and the owner-operator is the contractor hired as a driver by the carrier.” That system is not unconstitutional. The Supreme Court may treat “relator’s petition for a writ of mandamus as one for a writ of prohibition [,]” and makes its preliminary writ of prohibition permanent.
State ex rel. Beutler, Inc. d/b/a George J. Shaw Construction Co. and Brian Henderson, Relators, vs. The Honorable Sandra C. Midkiff, Respondent.
Supreme Court of Missouri - SC98251
No Survivor Benefits for Dependents Unless Named
Under statutes then applicable, when permanently and totally disabled claimant died from causes unrelated to the workplace injury, benefits passed to dependents when the injury occurred; but only if the award included findings of fact identifying the dependents. A mention of dependents is not enough. The Labor and Industrial Relations “Commission does not have the authority to later disturb the finality of the award by modifying it to make dependency findings that the Commission did not include in the final award.”
John D. Matthews, Appellant, v. Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
Missouri Court of Appeals, Eastern District - ED109168