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Case summaries for Apr. 9 - Apr. 15, 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.

Criminal | Environmental | Evidence | Family | Health | Personal Injury | Post-Conviction | Workers' Compensation


Quintuple Murder Conviction Affirmed
Appellant did not object to circuit court’s screening, conducted before selecting persons for a venire subject to voir dire, and did not show that the screening violated any law or caused any prejudice. Circuit court had the discretion to identify venire persons by number, because that practice made a clear record of voir dire, at least when the circuit court seated jurors by name. Circuit court “judge’s communications with jail personnel regarding security issues related to transporting [defendant] to and from the courtroom” was part of the circuit court judge’s responsibility “for the conduct of the trial, the safety of all persons in the courtroom, and the prevention of escape [;]” and the record shows no forbidden ex parte contact, and no appearance of impropriety in those communications. Stipulation to DNA likelihood ratios, “numbers many times greater than the number of human beings on the planet [,]” waived plain error review.
State of Missouri vs. Brandon B. Howell
(Overview Summary)
Missouri Court of Appeals, Western District - WD82846

Recusal Is Irrevocable
Though numbered as different cases, motion for modification and motion for contempt were not separate actions for an underlying action for paternity, as long as the same judge was assigned to the paternity action. A change of judge as a matter of right in the paternity action resulted in assignment to respondent circuit judge so, when respondent granted another change of judge on a second—and unauthorized—motion for change of judge as a matter of right, there was no grounds for respondent to grant the second motion. But rules allow a voluntary recusal without any stated grounds, which the grant of the second motion is presumed to be. Once respondent ordered that recusal, respondent lost all authority to rule on any matter in that case. Therefore, respondent’s order revoking the recusal were void, and subject to prohibition, so the Court of Appeals makes permanent its preliminary writ in prohibition. 
Missouri Court of Appeals, Southern District - SD36960


Clean Water Permit Conditions Upheld
Statutes require the Clean Water Commission to make its decision based on the record made before the Administrative Hearing Commission, which renders further testimony before the Clean Water Commission “likely inadvisable,” but appellant showed no prejudice from any extra-record evidence. The record showed that appellant’s commercial development was part of a larger residential development, through which appellant planned to route the commercial development’s wastewater, which was subject to Clean Water Commission authority.  An exception for sufficient local administrative water program applies only on a determination by the Department of Natural Resources.  
Carla Malone Steck vs. Missouri Department of Natural Resources and Missouri Clean Water Commission
(Overview Summary)
Missouri Court of Appeals, Western District - WD83568


Conviction Without Content of Municipal Ordinance in the Record Is Plain Error
On a charge of speeding, the record in the trial de novo in circuit court did not include the speeding ordinance. Testimony that the ordinance exists, even with a citation by number, is no substitute for entering the text of the ordinance into evidence; and an ordinance is not subject to judicial notice.  “Moreover, failure to introduce the ordinance for which a defendant was convicted constitutes plain error affecting substantial rights.”
City of Center, Respondent, v. Keith Andrews, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108222


Nominal Modifiable Maintenance Discussed
Circuit court did not err in dividing pension according to amounts accrued before and during marriage. And any argued error did not prejudice appellant. In any event, if circuit court’s method of dividing pension was error, the error was invited, because the method was proffered to the court by appellant. Statute’s list of factors applicable to property division is not exclusive. Circuit court’s order, correcting a miscalculation, mooted appellant’s challenge to that calculation. Child support form assumes that obligee will receive the child dependent tax exemption, so circuit court did not abuse its discretion in awarding the exemption accordingly. An award of “nominal modifiable maintenance is appropriate in situations where one spouse’s ability to remain self-supporting in the future is in substantial jeopardy.” Such an award had support in evidence of obligee’s employment history, especially the imminent expiration of an employment contract, and prospects supported an award of nominal modifiable maintenance. An award of attorney fees stood on evidence relevant to applicable factors, and appellant cannot prevail by addressing evidence in appellant’s favor only, so appellant did not show an abuse of discretion.  
Dmitriy Dubrovenskiy, Petitioner/Appellant, v. Yelena Vakula, Respondent/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108836


Prompt Payment Act Applied
Insured’s assignment of benefits to hospital supported hospital's standing to seek payment from insurer for insured’s treatment at hospital because it included the right to sue insurer for those benefits. And the benefits due the hospital are those for an in-network provider under the plain and unambiguous terms of the insurance plan, which defines an in-network provider to include providers under contract and identified on insured’s plan membership card, and as admitted by plan representatives. Claims against the insurer are an adequate remedy at law for purposes of negating a promissory estoppel claim against insurer’s claims administration subcontractor. And hospital did not show that it was a third-party beneficiary of a contract with insurer’s claims administration subcontractor. Claims filed with insurer by fax are not subject to Missouri Prompt Payment Act’s penalties because faxed claims do not constitute claims filed electronically, and filing electronically with the hospital’s claims clearinghouse was no substitute. But the Act also required insurer to make electronic filing accessible for claims, and insurer and insurer’s contractors asked that hospital file no claims electronically, so the insurer and insurer’s contractors have no claim for attorney fees under the Act’s provision for groundless claims. Rule allows amendment of an answer to accommodate newly discovered facts, but the only new facts in the motion to amend were known to insurer two years before hospital filed its action, so circuit court did not err in denying that motion.
Saint Luke's Hospital of Kansas City vs. Benefit Management Consultants, Inc., Carthage R-9 School District, and Gerber Life Insurance Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD83388, WD83418, WD83420 and WD83425

Personal Injury

Insurer Cannot Intervene in Action to Confirm Arbitration Award
In an action for negligence and recklessness, insurer denied a defense for its insured, so insured and injured party agreed to arbitration. The arbitration agreement was valid, because it addressed existing controversies, and statutes gave circuit court authority over that agreement. The parties brought an action to confirm the award. An earlier denial of confirmation was interlocutory and did not determine the merits of the personal injury action, so that order did not collaterally estop the confirmation action. Insurer sought intervention by right and by permission. Rule provides intervention as a matter of right for persons holding an interest, meaning “a direct and immediate claim [with] its origin in, the ... proceeds” at stake “by direct operation of judgment.” That does not describe an insurer’s potential indemnity of an award, neither in arbitration of an insured’s liability, nor an action for confirmation of that award. Rule also provides intervention as a matter of right in accordance with statutes, but statute provides intervention only in circuit court actions pending within a certain time, and not in arbitrations. Rule permits intervention when movant has something “in common” with the action, which did not describe insurer’s challenge to the award in arbitration between insured and injured party, because insurer raised no facts or law raised by the parties in the confirmation action. Those conclusions do not unconstitutionally deprive the insurer of the right to defend its interests, because the insurer had the opportunity to defend against the injured party’s allegations and refused without reservation, and may litigate coverage in an action for garnishment.
Weston T. Loveland III, Respondent, vs. Gabriel Austin, Respondent, and Shelter Mutual Insurance Company, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108859

Kansas Statute Bars Some Claims for Heavy Metal Poisoning
Plaintiff’s allegations described causation between heavy metal exposure and illness, but did not describe a duty to disclose release of toxic substances, under Kansas substantive law and Missouri fact pleading. While Missouri procedural law always applies in circuit court, “Missouri follows the Restatement (Second) of Conflict of Laws,” under which “the place of the alleged injury and the state with the most significant relationship with the case” is Kansas, which determines the applicable substantive law. Substantive law includes Kansas’s time bar for bringing an action because that statute starts the time with defendant’s last act, so it can extinguish a claim before plaintiff discovers the claim, and so constitutes a statute of repose. That statute bars some of plaintiff’s claims for heavy metal poisoning but not all.
Lona Leann Grosshart vs. Kansas City Power & Light Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD83672


Plea Agreement Waived Challenge to Sentence
A plea of guilty waives all claims except claims related to jurisdiction and the knowing, voluntary, and intelligent quality of a guilty plea. Movant’s plea of guilty in exchange for a sentence that included restitution was knowing, voluntary, and intelligent as shown in the record. The guilty plea therefore waived any challenge to the circuit court’s statutory authority to impose a sentence of restitution.
Kevin T. Chandler, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108792

Workers' Compensation

Primary Jurisdiction Includes Cause of Death When Employment Relationship Alleged
Plaintiff’s circuit court action alleged resources and conduct inadequate to treat decedent found unconscious at the workplace. “[T]he Labor and Industrial Relations Commission has sole authority to determine whether an employee’s injury or death was the product of a work accident or an intentional act by the employer.” Employer’s pleading, denying that damages came from workplace conditions, did not negate Commission authority. The Commission’s primary authority includes the cause of decedent’s injury to the exclusion of circuit court. Therefore, no plain error occurred when circuit court dismissed plaintiff’s action.
Nancy J. Ducoulombier vs. Ford Motor Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD83430