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Case summaries for April 7 - April 13, 2023


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.

ADR | Appellate | Attorneys | Criminal | Employment Security | Evidence | Personal Injury


Third-party beneficiary status in arbitration agreement discussed 
Plaintiff worked for a temporary staffing service under a contract with an arbitration agreement and a choice of law provision. The choice of law provision specified Maryland law, but all parties waived that provision, by citing no Maryland law in circuit court and in the Court of Appeals. The arbitration agreement required plaintiff and plaintiff’s employer to arbitrate certain claims with certain persons. Those persons included plaintiff’s employer, and clients of plaintiff’s employer, but not employees of such clients. An employee of a client could be a third-party beneficiary if the agreement so provided, or if plaintiff alleged that the employee was the client’s agent, or if plaintiff’s claim arose within the scope of employee’s employment. Even inextricably intertwined claims are not subject to arbitration absent an agreement.  
Andrea M. Curns vs. Phyllis Akins 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85486


No abuse of discretion shown 
In an action to terminate parental rights, the elements include the child’s best interest, which is subject to seven statutory factors. Of those factors, there is no minimum necessary for termination, and the determination is subjectively based on the totality of circumstances. The circuit court found that six factors weighed against appellant and ordered termination of appellant’s parental rights. That ruling is subject to review for abuse of discretion, which means that “a ruling is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Appellant did not show an abuse of discretion. “In essence, [appellant] argues [that the Court of Appeals] should reweigh or rebalance the factors [,]” which has “no analytical or persuasive value.” 
IN THE INTEREST OF: H.M.W. and W.E.L., children under seventeen years of age. GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent vs. R.W., Respondent-Appellant 
Missouri Court of Appeals, Southern District - SD37737 and SD37738


Malpractice action filed timely – from client’s point of view 
The statute of limitations for legal malpractice is five years from the date on which damage is objectively ascertainable. Sometimes the error and resulting damage is obvious, but other times are undiscoverable to the ordinary reasonable person without further legal expertise, as in plaintiff’s complex personal injury litigation. Nothing put plaintiff on notice when an $11 million judgment became uncollectible, so plaintiff had no duty to check on his lawyers’ progress, until events that raise concern in an ordinary layperson. Only then was the damage reasonably ascertainable, and plaintiff filed his malpractice petition timely from that date, so the circuit court erred in dismissing the action.  
Daniel McCullen, Appellant, vs. Matthew P. O'Grady, et al., Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110811


Accomplice liability theory raised in closing was okay 
No plain error occurred when the circuit court did not sua sponte intervene as to the State’s closing argument suggesting accomplice liability. That theory did not appear in the charging instrument, but no such pleading is necessary, and the evidence supported it. Also, the State offered no instruction on accomplice liability, so the guilty verdict stood on defendant’s own actions as charged.  
State of Missouri, Respondent, vs. Daniel Ray Robertson, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110046

Employment Security

Filings were untimely 
In an appeal of a determination that claimant received an overpayment of benefits, claimant’s late filing is not subject to any excuse. In an appeal from a determination that claimant is ineligible for benefits, claimant’s late filing is excusable for good cause, defined by regulation as acting reasonably and in good faith. That does not include failing to check for, and act upon, notices delivered to claimant. Dismissals affirmed.  
Jamie A. Marx, Appellant, v. Division of Employment Security, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110579


No outcome determinative effect, no prejudice 
Appellate courts review for error but reverse only for error so prejudicial that it requires reversal. When the error charged is the admission of evidence in a criminal action, prejudice means outcome determinative, meaning that a different result was reasonably likely without the disputed evidence. The disputed evidence was defendant’s demeanor after victim’s murder: new hair-do, manicure, and insurance on victim’s life. That evidence was “approximately forty-two lines on six pages of a 672-page trial transcript [,]” and the State expressly downplayed the disputed evidence in closing argument, focusing instead on other overwhelming evidence of guilt. Conviction affirmed.  
State of Missouri vs. Viola Bowman 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85002

Personal Injury

Verdict affirmed in allergy claim 
A jury found plaintiff 90% at fault for failing to notice that a buffet item was stuffed with seafood to which plaintiff was allergic. Of the six venirepersons challenged on appeal, plaintiff preserved error only as to two, as to whom plaintiff showed no bias. Circuit court did not err in excluding plaintiff’s evidence, offered to show later harm by paramedics, because plaintiff showed no negligence as to paramedics. The doctrine of sudden onset provides that no medical testimony on causation is necessary when a layperson can understand the effect of an occurrence on the human body, like an open wound or a broken bone, but plaintiff’s allegations of later harm involved complex physiological interactions. Medical records were no substitute for expert testimony on causation, to reasonable degree of medical certainty, especially as to plaintiff with morbid obesity and uncontrolled diabetes. Plaintiff did not show that defendant’s isolated reference to medical bills prejudiced plaintiff’s case on comparative fault. Evidence supporting the instruction on comparative fault included plaintiff’s testimony that plaintiff knew of his own allergy but failed to distinguish crab meat from hash browns; and that defendant posted a menu on the buffet and employed persons to describe items on the buffet. Plaintiff’s general objection to an instruction on comparative fault did not preserve an issue on specific language, especially when plaintiff proposed that language.  
Andrew Denney, Appellant, v. Syberg's Westport, Inc., d/b/a Syberg's, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110498

Employer’s negligence irrelevant to respondeat superior 
In an action against an employee and employer, plaintiff argued the negligence against the employee, and respondeat superior against the employer. As to the latter claim, plaintiff offered evidence of employer’s business practices to show liability for punitive damages, but such evidence is relevant only to a theory of direct liability like negligence, and not to any theory of vicarious liability like respondeat superior. Circuit court did not err in excluding the evidence on the grounds of relevance. 
Missouri Court of Appeals, Southern District - SD37398