Case summaries for April 8 - April 14, 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.
Interest Due at Contractual Rate
Circuit court substituted statutory interest rate for contract’s “offensive and obscenely high interest rate” under usury statutes, but usury statutes include an exception for small consumer installment loans. In those statutes, “the legislature has decided not to put a limit on interest rates for small loans. Where the statute has no exception to this limitless interest, the court cannot insert one.” Court of Appeals reverses the circuit court and remands for entry of a judgment at the contractual rate of 360 percent annually.
MM Finance, LLC, d/b/a EZ Money Check Cashing vs. Andrea I. Rose
Court of Appeals, Western District – WD84379
Continuing Addiction Supports Termination of Parental Rights
“Due process [including] notice of the hearing, with sufficient time to prevent [appellant’s] absence, and the opportunity to be heard” is sufficient for circuit court to convene an evidentiary hearing on termination of appellant’s parental rights, and appellant’s absence alone does not bar such hearing. On a motion for continuance, failure to comply with rule’s requirement of a writing is grounds for denial, and denial of an unwritten motion is not an abuse of discretion. Appellant’s failure to comply with court-ordered social service plan and treat addiction, despite social service agency efforts, showed a statutory cause to terminate appellant’s parental rights. “While the evidence of [appellant]’s actual salary or ability to provide financial contributions was unclear, the multiple positive drug screens demonstrated [appellant]’s ability to fund [appellant’s] substance abuse issues with [appellant’s] income instead of financially supporting the Children.” Addiction not fully addressed constituted a “deliberate” risk to children. Having found one statutory cause to terminate appellant’s parental rights, and that termination was in the child’s best interests, an appellate court need review no other causes. On a motion to re-open the record two years after judgment, the credibility of evidence offered to support such relief is for the circuit court to determine, and the convenience of all parties is relevant.
In the Interest of: K.A.M.L.
Court of Appeals, Eastern District - ED109556
Lack of Custody, Care and Support Shown
Circuit court may exercise jurisdiction over a child, pending a dispositional hearing, for whom a lack of parental care, custody and support appear by clear and convincing evidence. No pattern of neglect is necessary, but the record shows such a pattern, with evidence of recent neglect and earlier neglect resulting in the death of another infant. Substantial evidence supports the judgment and evidence of an allegation not in the petition did not alter the outcome. Appellant had notice of those allegations, as shown by the petition’s content, and by appellant’s request for findings of fact on those allegations. Two grounds for reversing a judgment are based on the record: that a judgment lacks substantial supporting evidence and that a judgment is against the weight of the evidence. Combining them into one point relied on makes a multifarious point that is subject to dismissal. Challenging a judgment as against the weight of the evidence requires an argument structured in a specific way, which appellant did not follow, so the Court of Appeals does not consider that argument.
In the Interest of: T.D.
Court of Appeals, Eastern District – ED109487
No Settlement Reached
In any pending action, a motion to enforce settlement constitutes a collateral action for specific performance, in which the quantum of evidence is “clear, convincing and satisfactory evidence [.]” A settlement is like any other contract: acceptance of the offer must be a perfect mirror image of the offer without departure from the offer’s provisions; any such departure rejects the offer and constitutes a counter-offer. The character of the exchange is a matter of fact standing on evidence of “what was actually said and done” without regard for the parties’ testimony as their intentions. Correspondence between the parties shows that one mischaracterized the other’s offer, negating any allegation that the parties reached a meeting of minds on essential provisions.
Hannah Stickler and Molly Stickler vs. Austin McGinnis
Court of Appeals, Western District – WD84618
TIF Commission Correctly Configured
Real Property Tax Increment Allocation Redevelopment Act provides increased revenue through public funding of private projects. The Act allows a city to adopt an ordinance upon recommendation, after hearing, by a commission composed as the Act provides. One statute determines a commission’s composition by county population while another statute provides that, once county reaches a specified population, such statutes continue to apply even after its population declines below the minimum. There is no conflict, nor repeal by implication, between those statutes; the latter is a savings statute for the former. The savings statute’s use of past events to determine future effect does not make it unconstitutional for retrospective effect. Judgment quashing a preliminary writ is subject to appeal.
State of Missouri ex rel. City of Maryland Heights, Appellant, vs. Mike James, Mike Devereux, Margaret Hart-Mahon, Gail Choate, Paul Hampel, Patty Bedorough, Fletcher Wells, Deanna Venker, Deborah Salberg, Andrew Durket, Ron Orr, Dave Dotson and Sam Page, Respondents.
Court of Appeals, Eastern District – ED109544
No Liability for Third-Party Criminal Attack
Defendants’ governing documents established their respective relationships and duties as to real property and no party raised a genuine dispute as to those facts. As between a landlord and tenant or tenant’s invitee, landlord had no liability for tenant activities in spaces where landlord had no authority to supervise tenants, and no foreseeable duty to do so; and the same was true of landlord’s parent corporation. Parents have no duty to supervise the activities of adult children living at home even with knowledge of activities’ dangerous nature. The facts established without genuine dispute negated plaintiff’s claims of premises liability and negligence, so the circuit court did not err in entering summary judgment for defendants.
A.R.R. vs. Tau Kappa Epsilon Fraternity, Inc., and Delta Nu Teke House Association
Court of Appeals, Western District – WD84545
No Transcript, No Deadline for Amended Motion
The Missouri Sexual Offender Program provides treatment and parole eligibility. Parole eligibility is a collateral consequence of conviction, so plea counsel has no duty to advise on it. Admission to the program requires a guilty plea, which includes an Alford plea, so plea counsel’s failure to distinguish a guilty plea and an Alford plea did not constitute ineffective assistance. The time to file an amended motion starts on the later of two events: counsel’s appointment or entry of appearance, the filing of a “complete” transcript. The latter never occurred, so the time never started to run, and the amended motion was not late. No abandonment inquiry was due, so the circuit court did not err in reaching the merits of the action. The Court of Appeals affirms the judgment denying relief.
Robert M. Tinsley, Sr., Appellant, vs. State of Missouri, Respondent.
Court of Appeals, Eastern District - ED109258
Judgment Unclear on Easement Use and Obstacles
An easement over land has no effect on the servient estate holder except for the easement’s purpose, which prevails over any right of the servient estate holder, and which the servient estate cannot inhibit. A deed reserving an easement, without specifying the easement’s purpose, entitles the easement’s holder to “unlimited reasonable use [.]” A non-exclusive easement is one that the servient estate holder may use, too. Circuit court ordered removal of structures on easement despite evidence showing no interference with ingress and egress and allowed construction of road and utilities on easement without specifying the width of the road. “We cannot tell from the record whether the judgment is too broad or too narrow [.]” Remanded to determine the necessary width of the proposed road and utilities.
Kallash Revocable Inter Vivos Trust, Appellant, v. Sean T. Fitzsimmons and Stacie S. Fitzsimmons, Respondents.
Court of Appeals, Eastern District - ED109154
Petition for Specific Performance Alleges a Ripe Controversy
In a petition for relief on a contract for the sale of real estate, the duty to sell was contingent on the performance of other duties, but the petition did not specify the time for performing those other duties. That state of pleading did not show that performance of the contract was due, so it did not show any breach or other controversy ripe for adjudication, and the circuit court did not err in dismissing the petition. But dismissal of an initial petition with prejudice, and without an opportunity to amend, is unduly harsh and constituted an abuse of discretion.
Sharon Smith, et al., Appellants, vs. Julia L. Stewart, Respondent.
Court of Appeals, Eastern District – ED109668