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Case summaries for Apr. 10 - Apr. 16


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.

Administrative | Appellate | Civil | ContractConstitutionalCriminal | EmploymentFamily | Mental Health | Post-Conviction | Real EstateTaxWorkers' Compensation


Agency Had No Authority, Court of Appeals Has Jurisdiction
Jurisdiction is a constitutional concept so executive branch agencies, without constitutionally assigned jurisdiction, have only authority granted by statute. Statutes provide that the Labor and Industrial Relations Commission has authority over an application made according to Commission regulations, which require the application to specify the findings or conclusions challenged, and an application failing to meet that standard is subject to dismissal. “[T]here is no authority for the proposition that a facially defective application for review can be remediated merely by giving notice of the additional issues the Commission seeks to review that were required to be raised by a party in a properly filed application for review compliant with [the Commission’s regulation].” Whether or not the agency had authority to make a decision, the Court of Appeals has jurisdiction to review that decision, because the Missouri Constitution determines jurisdiction. On appeal, respondent may raise agency authority as a defense, without filing respondent’s own appeal of a decision in which it prevailed on the substantive issues entirely.
Treasurer of The State of Missouri-Custodian of The Second Injury Fund vs. Jimmy Mickelberry
(Overview Summary)
Missouri Court of Appeals, Western District - WD82997


No Standing to Appeal Without Liability
Appellant defendant filed a third-party petition, which plaintiff’s dismissal of appellant did not affect, and judgment did not address. Therefore, the appellant remained a party to the action, and the judgment was not final. Even with a final judgment, appellant has no standing to challenge a ruling on appellant’s motion to intervene in circuit court, without a ruling on that motion, which the Court of Appeals cannot deem to have occurred sub silentio. Circuit court’s confirmation of an arbitration award, for which appellant had no liability, did not affect appellant immediately and directly enough to constitute aggrievement and confer standing. Appeal dismissed.
Richard "Neil" Howe vs. Heartland Midwest, LLC, et al; Time Warner Cable Midwest, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD82656

Briefing Deficiencies Require Dismissal
Appellant’s failure to use rule’s “mandatory ‘erred in/because/in that’ formula” for appellant’s point relied on, insertion of argument in the standard of review section, failure to offer any theory authorized under the standard of review, and failure to offer references to the record in the argument section, impede review and require dismissal.
MAXWELL BIGGS, By His Next Friend DERRICK BIGGS, and DERRICK BIGGS, Individually, Respondent vs. ANGELIA BRINNEMAN, Appellant
Missouri Court of Appeals, Southern District - SD36178


Remand from Removal Re-Starts Time for Change of Judge
Rule provides the right to a change of judge upon motion filed within the later of 30 days from designation of the trial judge or 60 days from service of process, and service of process is deemed to be the date of remand from removal to federal court. Appellant filed within that time but circuit court denied the motion. Judgment vacated and remanded for a change of judge.
Federal Home Loan Mortgage Corporation, Respondent, vs. Wilma Pennington-Thurman, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107853


Life Without Parole Is Constitutional for 19-Year Old
Even under the Eighth Amendment, “the evolving standards of decency that mark the progress of a maturing society,” a person over the age of 18 years may receive a sentence of life without parole, imposed without individualized considerations of youth.
State of Missouri, Respondent, vs. David M. Barnett, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98268


No Money Damages, No Pre-Judgment Interest
Plaintiff did not show that defendant’s race-neutral reason for striking a juror was pretextual, so plaintiff did not prevail in its Batson challenge. Because the jury found in defendant’s favor, the jury could not have awarded damages, so no prejudice resulted in excluding plaintiff’s evidence of damages in the form of lost profits plaintiff could have made on other project profits. Statute providing for pre-judgment interest applies to amounts “liquidated or readily ascertainable [,]” as “ultimately awarded by the fact finder [,]” so circuit court erred in awarding pre-judgment interest when the verdict was against the claimant party.
Assurance General Contracting, LLC, Appellant, vs. Helal Ekramuddin, et al, Respondents/Cross-Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107390


Child Victim’s Non-Verbal Responses Constituted Availability for Cross-Examination
Sixth Amendment protects the right to confront adverse witnesses, meaning cross-examination under oath before a jury, so the Sixth Amendment does not bar out-of-court testimonial statements of a declarant testifying at trial. Statute allows into the record the statement of a child victim if that witness is available for cross-examination, non-verbal responses can be responsive for cross-examination, and the defense sought no ruling that the witness was unavailable for cross-examination.
State of Missouri vs. Frank G. Hawkins
(Overview Summary)
Missouri Court of Appeals, Western District - WD81946

Evidence of First Degree Murder Discussed
Evidence of planning, a prolonged struggle, and leaving victim without needed medical help, all support a finding of deliberation. A witness familiar with criminal slang terms—for one to earn one’s teardrop or earn one’s wings—may testify as to the meaning of those terms. Conviction for murder in the first degree affirmed.
STATE OF MISSOURI, Plaintiff-Respondent v. BRANDY BROOKE SHADDOX, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD35849

One Shot, Three Assaults
Convictions for three counts of assault second degree and three counts of armed criminal action had support in evidence that appellant fired one gunshot into one vehicle carrying three persons because appellant “was aware of the high likelihood of hitting multiple targets.” Jurors’ signature on one wrong verdict form did not result in plain error. Court of Appeals directs circuit court to correct judgment on degree of assault from first to second by order nunc pro tunc.
State of Missouri, Respondent, v. Brian K. Garrett, Jr., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED106966

Sex Offender Distance Starts at Property Line
Statutes bar sex offenders from residing within 1000 feet of a school, which means 1000 feet between the property lines of the school property and the sex offender’s residence. “When a statute is potentially ambiguous, before applying the rule of lenity, ‘a court is permitted to apply rules of statutory construction’ including the rule that a criminal statute should be read with common sense – i.e., ‘that courts shall understand [words] as other people would.’” Conviction affirmed.
STATE OF MISSOURI, Plaintiff-Respondent vs. MATTHEW JAMES LEE MCCORD, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD35696


Punitive Damages Affirmed in Race Discrimination
On claims for racial discrimination, “#Me-Too” evidence was logically and legally relevant. Plaintiff made a submissible case that race was a contributing factor in employer’s hiring decisions with evidence of her qualifications for a promotion compared to the successful candidate. Plaintiff made a submissible case for hostile work environment with evidence on the cumulative effect of increased workload without increased pay, degraded working conditions, and demeaning race-based statements. Plaintiff made a submissible case for that retaliation was a contributing factor in employer’s hiring decisions with evidence of her job performance, racial bias in the decision-makers denial of promotion, and transfer to a distant office. Circuit did not err in submitting to the jury an instruction that “religiously” tracked the approved instruction, which tracked the statutes, and submitting ultimate facts only. Circuit court did not err in refusing an instruction applicable only to sexual harassment without employment actions. Statutory amendment capping punitive damages applies only prospectively, meaning only to causes of action accruing after statute’s enactment, so circuit court did not err in applying the pre-amended statute—with no cap—to plaintiff’s claim filed a year before enactment. Circuit court did not abuse its discretion in awarding attorney fees before appeals were final. Affirmed but remanded to determine award of attorney fees for appeal.
Danielle McGaughy, Respondent, vs. Laclede Gas Company, et al, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107498


Appreciation of Separate Property Is Marital Property
Circuit court premised its property division on a 50/50 split, but circuit court awarded the residential mortgage to one party alone without any clear reason, so Court of Appeals remands for clarification. “Under the source[-]of[-]funds rule, ‘any increase in the value of separate property is marital property if marital assets or marital labor contributed to acquiring that increase.’” Evidence, that one party’s non-marital business increased in equity as a result of marital contributions and the other party’s unpaid work, supported an award from the business’s increased equity to the other party.
Shelbie Torres vs. Alejandro Raul Torres
(Overview Summary)
Missouri Court of Appeals, Western District - WD82498

Mental Health

Restrictions on Voir Dire Related to Victims’ Ages Okay
An allegation of manifest injustice or miscarriage of justice, not merely of prejudice, is necessary for stating a claim of plain error. In an action to confine appellant as a sexually violent predator based on pedophilia, defense counsel questioned the panel on “young,” “younger,” and “small” “kids” to discover bias, so barring counsel from inquiry using the specific ages of victims did not prejudice appellant’s defense. Appellant did not show that trial counsel was ineffective for failure to investigate jury for general community bias, and change venue on that basis, without showing what facts trial counsel should have investigated and what the investigation would have shown. Appellant did not show that his trial plain error in the denial of a new trial based on a venire person allegedly concealing biased, when appellant did not include that theory in the motion for new trial and did not offer any evidence in support of appellant’s allegations, including whether the venire person served on the jury. Statutes provide that a provisionally licensed psychologist may author an end-of-confinement report, and any effect on appellant’s probable cause hearing was cured in jury trial, so appellant showed neither ineffective assistance of counsel for failure to make a meritless objection nor the lack of a meaningful hearing. Expert testimony on the likelihood of re-offending was cumulative, so the exclusion of that testimony was harmless. An incomplete transcript does not show reversible error, and appellant did not show that the context of any inaudible passages addressed any point on appeal. No threat to appellant’s statutory right to a unanimous jury verdict was present in instructions, because instructions did not submit more than one mental abnormality for jury’s finding, and evidence that appellant’s mental abnormality came from the interactions of three different mental conditions did not change that result.
In the Matter of the Care and Treatment of D.N.
(Overview Summary)
Supreme Court of Missouri - SC98077


Relief Denied in Death Penalty Case
Movant’s burden includes overcoming a presumption that counsel is effective. Movant did not show that trial counsel was ineffective for calling codefendant, whose testimony included evidence unfavorable to defense, because codefendant’s testimony also included evidence favorable to the defense, including better evidence of an alternative perpetrator than otherwise available. That theory would not have strengthened under questioning about codefendant’s post-conviction motion because that motion’s allegations were inconsistent with the defense’s theory. Trial counsel is not ineffective for failing to make a meritless objection to correspondence between appellant and codefendant that was more helpful than confusing to jury, and was admissible over a hearsay objection because codefendant testified; and to evidence that codefendant identified appellant from a photograph on police station wall, and evidence of how police matched appellant’s fingerprint to evidence at crime scene, not linking appellant to any crime. Trial counsel was not ineffective for deciding not to call witnesses whose purported testimony would have been inadmissible, witnesses whose mitigation testimony could have been less than aggravation testimony; expert evidence of mental age supported no viable defense, and made a bad impression on jury; for deciding against obtaining a medical examination of defendant; for introducing another victim’s medical records that were more likely to harm the defense than help it; and for offering other evidence that would not have helped, like witnesses whose testimony would have helped the State. Trial counsel was not ineffective for deciding not to object to State’s closing arguments showing the benefits of criminal procedure over private retribution, and factually founded, even if emotional. Circuit court did not err in denying disqualification of the prosecutor’s office when the record negated the appearance of impropriety. Appellant had no right to be present at the evidentiary hearing on the motion. Abandonment does not include timely filing of an amended motion, even if the amended motion could have included more claims, because that describes only ineffective post-conviction counsel. Rules limiting time for amendments are constitutional. Appellant showed no prejudice from the denial of his motion to compel testimony from codefendant because appellant did not show how testimony would have helped.
Vincent McFadden, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC97737

Escape Rule Applied
Court of Appeals applies escape rule to dismiss claims of error occurring before appellant’s escape. Appellant received without objection a sentence as provided by statute as read at the time of sentencing, and counsel did not seek relief under a later and more lenient reading of the statute, but that relief is retrospective only so counsel was not ineffective.
Daniel C. Harmon, Movant/Appellant, vs. State of Missouri, Respondent/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108133

Real Estate

Operation of Swimming Pool Enjoined
“[A] a public nuisance may be found where said nuisance is located at ‘a place where the public is likely to congregate, a place where the public has a right to go, or a place where the public is likely to come into contact with the nuisance [,]’ even when that place is on private property, at least when “[a]ppellants invite generally and open their property to members of the public.” The number of past deaths—especially calculated according to swimming season—and current safety hazards at appellants’ swimming and diving facility supported issuance of injunction until abatement of hazards. Circuit court did not err in naming property owners, in addition to facility managers, in its injunction.
State of Missouri, ex rel. Attorney General Eric S. Schmitt, Respondent, vs. Gary Henson, et al., Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107970


Low Income Housing Valuation Explained
Restrictions on residential properties, subsidized with tax credits for low-income housing, limit the market for selling those properties, and support the valuation by actual income from and expenses of operating the properties. A valuation that does not consider those restrictions is merely hypothetical. To account for those restrictions on residential properties, even though other residential properties do not bear such restrictions, does not create a subclass of properties.
Missouri Court of Appeals, Southern District - SD35625

Workers’ Compensation

Later Injury During Treatment for Earlier Injury Is Not Covered
Statutes cover only injuries arising out of and in the course of employment. Claimant did not show that her second injury, caused by stumbling while seeking treatment for a covered first injury, was not an equal risk outside of employment. Therefore, claimant did not show that the second injury is covered. Claimant’s action for that injury against the Second Injury Fund is moot.
Lucille Schoen, Appellant, vs. Mid-Missouri Mental Health Center and Treasurer of the State of Missouri - Custodian of the Second Injury Fund, Respondents.
(Overview Summary)
Supreme Court of Missouri - SC98168

Injury Did Not Arise Out Of And In the Course of Employment
Statutes governing workers’ compensation cover injuries arising out of and in the course of employment, meaning that work caused the injury, in that non-work life did not present the same risk. To sustain an award, substantial and competent evidence is necessary only to support the findings of fact that are necessary to support the award, not to support the credibility determinations that support the findings of fact. “[C]redibility determinations [--] once expressed by the Commission -- are binding on this Court.” Substantial and competent evidence, on which the Labor and Industrial Relations Commission made express credibility determinations, supported the Commission’s finding that claimant’s injury included nothing especially related to work. Therefore, the injury did not arise out of and in the course of employment.
Dontarius J. Marks vs. Missouri Department of Corrections
(Overview Summary)
Missouri Court of Appeals, Western District - WD82956

Second Injury Fund Claims for Permanent Disability Claims Differentiated
Which of two statutes, governing claims against the Second Injury Fund for permanent disability, depends on whether injuries occurred before or after January 1, 2014. The date of filing a claim for the injury is irrelevant.
Missouri Court of Appeals, Southern District - SD36471