Case summaries for April 5-11, 2024

Appellate | Criminal | Employment | Personal injury | Probate

Appellate

Appeal from summary judgment explained
Because appellate review of summary judgment was de novo, the statement of facts in appellant’s brief had to conform with the statement of uncontroverted facts in — with citations to — the summary judgment record. Failure to comply with that requirement supported dismissal of the appeal or denial of the merits for points relied on. Points relied on that cited only generally to exhibits, and not to the summary judgment record, set forth no cogent argument. Summary judgments affirmed.
(Overview summary) 
The Switzer Living Trust, U/A Dated February 5, 2019, by and through Alan T. Switzer & Gayle L. Switzer, As Co-Trustees vs. Lake Lotawana Association, INC., Et Al.
Missouri Court of Appeals-Western District - WD86307

Judgment on liability but not damages was not final
On a jury verdict that found defendants liable and awarded damages, the circuit court entered a judgment that found defendants liable and an amended judgment that awarded attorney fees and costs, but no judgment that awarded damages. Such a judgment is not final, and is not subject to appeal, so the Missouri Court of Appeals-Western District dismissed the appeal. 
(Overview summary) 
D.W., a Minor Child, by and through her Natural Parent and Next Friend, L.W. vs. Hogan Preparatory Academy, INC., Et Al.
Missouri Court of Appeals-Western District - WD86206

Motion for directed verdict preserved no argument
No abuse of discretion occurred when the circuit court allowed cumulative testimony from a witness not previously identified. On appeal from a jury verdict, a point on appeal had to appear in a motion for judgment notwithstanding the verdict, which had to match a motion for directed verdict at the close of plaintiff’s evidence and at the close of all evidence. Any motion for directed verdict had to “state the specific grounds therefor.” That did not happen when defendant failed to specify which element of plaintiff’s claim lacked support, and a more specific motion for judgment notwithstanding the verdict did not cure the defect. 
(Overview summary) 
Taryn Piers vs. State of Missouri Department of Corrections
Missouri Court of Appeals-Western District - WD85939

Criminal

Venire panel okay
On charges of statutory sodomy, during voir dire, the state asked whether any venire person could believe that a 13-year-old girl could commit sexual assault on a 70-year-old man. No one answered affirmatively. But that did not require the circuit court to strike the panel because follow-up questioning showed that “quite a few” venire persons could keep an open mind. The defense asked to strike no venire person on that basis, and the circuit court granted defense strikes for cause generously. And defendant “presented no evidence at trial that [v]ictim forced herself on him” so no prejudice to the defendant occurred.
(Overview summary) 
State of Missouri vs. Harvey Oscar Pendleton
Missouri Court of Appeals-Western District - WD86122

Employment

Noncompete clause enforced
In an action to enforce a non-compete agreement by injunction, the employer had the burden of proof. The elements of an injunction include irreparable harm and an inadequate remedy, which the employer showed with evidence that only its non-compete agreements protected the employer’s business from predation from other employers. The elements of an action to enforce the agreement included protection of an employer interest greater than “mere competition by a former employee[,]” which the employer showed with evidence of customer contacts that included both patients and referring physicians. Employee did not show that employer breached any term of their employer agreement, and the record showed that any change in working conditions was endorsed by employee’s vote. Courts enforced an award of attorney fees only for a party who prevailed on the main issue, as the employer did in circuit court and in an earlier appeal, including an award of fees incurred in obtaining the fees. Remanded to determine the award in the present appeal. 
(Overview summary) 
Jefferson City Medical Group, P.C. vs. David Brummett
Missouri Court of Appeals-Western District - WD86589

Right-to-sue procedure discussed
The writ of mandamus issues on a showing of “a clear, unequivocal, specific right to a thing claimed.” Relator claimed a right-to-sue letter, which statutes required the Human Rights Commission to issue on request when the commission failed to complete its procedure on relator’s complaint within 180 days. The commission’s regulations provided a variety of dispositions for a complaint, and the commission’s delegee made a ruling of one such disposition, but the record did not show whether the delegee had authority to make that disposition. The Missouri Court of Appeals-Western District remanded to determine whether the delegee had authority to make the ruling that disposed of the complaint.  
(Overview summary) 
State Ex Rel. Matthew Stone vs. Missouri Commission on Human Rights, Et Al.
Missouri Court of Appeals-Western District - WD86214

Whistleblower attorney fees award affirmed
Statutes allowed plaintiff an award of attorney fees, which consisted of a base or “lodestar” amount with an adjustment or “multiplier,” to compensate counsel for several factors. Those factors excluded the grounds for setting the lodestar amount and included, but were not limited to, the relative risk of the cases taken and not taken. Other factors, like the contingency of the attorney’s fee, and turning away other work because of the work involved, plaintiff’s case supported the award. Statute allowed an appeal from a judgment by any party aggrieved, and a party who prevailed as to all claims, either by dismissal or favorable verdict on the merits, was not aggrieved, and so lacked standing to appeal. Remanded to determine attorney fees on appeal. 
(Overview summary) 
Dawn Warren-Cook vs. Missouri Department of Public Safety, Ernie Rhodes and Todd Farley
Missouri Court of Appeals-Western District - WD85927

Personal injury

No liability to passenger in high-speed chase
In an action for wrongful death, plaintiffs claimed negligence, of which the elements included a duty from defendants to decedent. Decedent was a passenger in a vehicle pursued by law enforcement officers in a high-speed chase that resulted in the crash that killed decedent. For drivers of emergency vehicles, statute created “the duty to drive with due regard for the safety of all persons” but that duty did not include “a duty to passengers in a vehicle pursued by police.” Law enforcement officers had no duty at common law to a voluntary passenger in a fleeing vehicle and, though a high-speed chase created foreseeable risks, law enforcement officers had a duty to respond swiftly to criminal activity. Negating the element of duty entitled defendants to summary judgment so the circuit court did not err in granting summary judgment to defendants. 
(Overview summary) 
Tony Woolfolk, et al., Appellants, vs. St. Louis County, et al., Respondents.
Missouri Court of Appeals-Eastern District - ED111491

Probate

Discovery of assets inapplicable to non-probate assets
Plaintiffs sought a ruling on assets of decedent and the circuit court dismissed the action for lack of personal jurisdiction over the personal representative of decedent’s estate. But decedent’s estate was not at issue, only non-probate assets already bearing a beneficiary designation, so the statutes governing probate procedure, including discovery of assets, did not apply. Judgment of dismissal reversed and remanded. 
(Overview summary) 
Susan Fenlon, et al., Appellants, vs. Rebecca Fenlon, Respondent.
Missouri Court of Appeals-Eastern District - ED111819