Case summaries for April 12 - April 18, 2024

ADR | Appellate | Civil | Criminal | Personal Injury | Real Estate

ADR

Litigation waived arbitration
Under the Federal Arbitration Act, the right to arbitration as set forth in a contract was subject to waiver by a party’s conduct inconsistent with arbitration, even without a showing of prejudice. Buyer brought an action against seller’s assignee challenging a fee allowed by statute for some transactions and not others. The assignee filed a motion to dismiss for failure to state a claim arguing the merits of seller’s theory, which the circuit court denied, and the assignee filed a motion to stay litigation and compel arbitration. In denying the motion to stay litigation and compel arbitration, the circuit court did not err, because the motion to dismiss was inconsistent with arbitration. A party “cannot change its choice of venue after ostensibly availing itself to one alternative only to select another following an unfavorable ruling.”
(Overview summary)
Connie Lange, Appellant, vs. GMT Auto Sales, Inc., Respondent.
Missouri Court of Appeals-Eastern District - ED111498

Appellate

Briefing violations yield dismissal
Rules of appellate procedure required appellant’s brief to recite facts with references to the record and without argumentation, draft a point relied on that identified a challenged ruling and showed why error in that ruling requires reversal, and present an argument supporting the point with standard of review and how the error was preserved. Failure to comply with those rules, especially after a notice to correct them, impaired appellate review and required dismissal of the appeal.
(Overview summary)
Parkside Financial Bank & Trust, Respondent, vs. Yvonne Bohac Allen, Appellant
Missouri Court of Appeals-Eastern District - ED111244

Civil

Breakdown needed for attorney fees award in partition
In an action for partition, the work of plaintiff’s counsel also benefits defendant, so statute and rule allowed an award of attorney fees against defendant for such “ordinary” fees. “Substantial” attorney fees address obstructive conduct, which the record does not support, but the judgment awarded both without distinguishing the amount for either, so the Missouri Court of Appeals-Eastern District reversed and remanded the judgment to determine the amount of ordinary fees due.
(Overview summary)
Angela M. Karstens, Respondent, vs. Kenneth L. Evans, Appellant.
Missouri Court of Appeals-Eastern District - ED111764

Criminal

Unauthorized sentences reversed
Plain error occurs when a circuit court imposes a sentence greater than authorized by statute. Statutes authorized confinement for a term of years for defendant’s offenses, but the circuit court imposed sentences of imprisonment for life. The Missouri Court of Appeals-Eastern District reverses the judgment and remands it for re-sentencing.
(Overview summary)
State of Missouri, Plaintiff/Respondent, vs. Dominic S. Yocco, Defendant/Appellant.
Missouri Court of Appeals-Eastern District - ED111409
 

Agreement to curative instruction waived plain error review
When the state told a venire that the jury’s job was to find the truth, defendant objected that the jury’s job was to weigh the evidence and determine whether the state had carried its burden, so the circuit court drafted a curative instruction. The defendant expressed satisfaction with that instruction. “[A]n affirmative agreement to a [circuit] court’s proposed course of action regarding a jury also waives subsequent appellate review of the [circuit] court’s judgment.” That waiver included plain error review.
(Overview summary)
State of Missouri, Respondent, v. Dawona Cook, Appellant.
Missouri Court of Appeals-Eastern District - ED111280

Personal injury

Jones Act judgment affirmed
The Jones Act allowed awards of damages for seamen and their survivors, including damages for a decedent’s pain and suffering before death, and financial loss to survivors. Such damages had support in the record, including admissions of defendant as to causation, and decedent’s contributions to a household. Damages were subject to remittitur when the jury incurred an honest but glaring mistake, which defendant did not show, so the circuit court did not err in denying a motion for remittitur. A point relied on, related to “evidence of liability and certain damages following appellant’s admission of liability” was multifarious, and failed to identify a ruling challenged, so the Missouri Court of Appeals-Eastern District declined to review that point. Rules barred an instruction’s proponent from challenging the instruction on appeal, and required an appellant to set forth the instruction at length, so failure to comply with those rules supported denial of that challenge. Whether the judgment violated a federal injunction, defendant did not preserve for review by filing any pre-judgment or post-judgment motion.
(Overview summary)
Candace Love, as Personal Representative of the Estate of Casey Redmond, Plaintiff/Respondent, v. Osage Marine Services, Inc., Defendant/Appellant.
Missouri Court of Appeals-Eastern District - ED111905

Real estate

Prescriptive easement affirmed
No deference was due as to a circuit court’s findings on uncontested evidence, but deference was due as to a circuit court’s findings on contested evidence. To contest evidence was not limited to presenting contrary evidence; cross-examination and arguments on credibility also constituted a contest. Whether the standard of proof was a preponderance, or clear and convincing, review on either a no-substantial-evidence challenge or an against the weight-of-the-evidence challenge considered no evidence contrary to the judgment. In an action for a prescriptive easement, the elements included adverse use. Adverse use meant a use that did not acknowledge defendant’s ownership. Long and continuous use raised a presumption of adverse use, and defendants had the burden of rebutting that presumption. The judgment’s findings on the existence and size of an easement had support in the record and was not against the weight of the evidence. The Missouri Court of Appeals-Eastern District modified the judgment by striking surplus language regarding an injunction that plaintiffs did not seek.
(Overview summary)
Keith W. Lay, et ux., Respondents, vs. Sallie Cunningham, et al., Appellants.
Missouri Court of Appeals-Eastern District - ED111508