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Case summaries for April 14 - April 20, 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.

Appellate | Civil | Criminal | Employment | Evidence | Family | Insurance | Juvenile | Personal Injury | Post-Conviction | Real Estate | Tax | Workers' Compensation


No final judgment pending attorney fees claim   
On a claim for attorney fees, whether raised in a pleading or by separate motion, a judgment on liability remains less than final when the amount due remains at issue absent certification by the circuit court or a statute authorizing an interlocutory appeal. A new rule, providing a separate action for attorney fees, does not apply because the rule was not in effect when the appeal was filed. The Court of Appeals has no jurisdiction and dismisses the appeal.   
Jefferson City Medical Group, P.C. vs. David Brummett  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85467


Judicial estoppel refuted  
Judicial estoppel bars a party from manipulating the legal system in bad faith by asserting a later legal position contrary to that party’s earlier, and successful, legal position. In a circuit court action for religious discrimination and retaliation in employment, on defendant employer’s motion for summary judgment, employer established beyond dispute that defendant had not added his claim to property schedules in bankruptcy. Whether plaintiff’s position in bankruptcy is inconsistent with plaintiff’s position in circuit court, or not, the plaintiff raised genuine dispute as to other material facts. As to bad faith, when plaintiff was asked whether he had a right to sue, plaintiff had not received a right to sue letter from the Missouri Human Rights Commission. As to prevailing on the earlier position, when plaintiff received a right to sue letter, plaintiff dismissed his bankruptcy filing without receiving a discharge. The circuit court failed to credit all favorable inferences to plaintiff and relied on credibility determinations. The circuit court erred in granting summary judgment for the defendant. Reversed and remanded.   
Kevin LaBranche vs. Kansas City Public Schools  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84914

Meritorious defense explained   
Rule allows circuit court to set aside a default judgment by an independent action, from which the judgment is subject to review for an abuse of discretion, and not de novo review. The elements are good cause and a meritorious defense. A meritorious defense is a defense that is, at least, arguable and default does not determine merit. Merit may exist in disputed facts or law, and the party seeking to set aside default need not prevail in the independent action. Whether a refund of overpaid tax is possible, and who caused the overpayment, constitutes a meritorious defense. Good faith includes missing a deadline. Judgment setting aside a default judgment affirmed.     
Independence School District No. 30 vs. County of Jackson, Missouri  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85398

Suit in equity, incidental action at law, no right to jury trial  
Constitutional provisions protect the right to a jury but, when one proceeding includes both legal and equitable theories, circuit courts have discretion to try the claims by the most efficient and effective procedure. That procedure is ordinarily to try the legal claims to a jury first, and then resolve any remaining issues by a bench trial in accordance with the jury’s findings, but may be the opposite when a legal claim is merely incidental to equitable claims. The latter was the procedure in an action to oust appellant, director of an incorporated property owners’ association, when appellant counterclaimed for indemnification of legal expenses under the corporation’s by-laws. The by-laws determined liability for litigation expenses according to the director’s liability for ouster, so the equitable action’s result, which was against appellant, determined that the legal action’s result also must be against appellant. The circuit court did not violate appellant’s right to a jury trial, and acted in accordance with statutes governing corporations, when the circuit court tried the equitable claims first and held no jury trial on appellant’s counterclaim. Pending appeal, appellant’s conveyance of property disqualified him from office, which mooted the remainder of the appeal.   
Missouri Court of Appeals, Southern District - SD37274


No error in third degree domestic assault charged, instruction, and proof   
No plain error occurred in a variance between domestic assault as charged and as instructed, because the variance was on the required mental state while causing injury, which was irrelevant to the defense that no injury occurred at all. The instructions conditioned a verdict of guilty, in part, on a finding that defendant “knowingly caused physical pain to [Victim] by biting [Victim,]” which victim’s testimony showed.     
State of Missouri vs. Justin Andrew Marks  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84927

Appointment of counsel and trial were timely  
Circuit court appointed counsel in time for defendant’s first adversarial appearance, which was the arraignment, so appointment of counsel was timely. When the State moved to file a sixth amended information, which expanded the time period alleged for one of the charges but added no new charge, defendant had the burden to show prejudice and did not carry that burden. A ruling against relief based on the right to a speedy trial had support in defendant’s many motions for continuance, some without explanation; in the timing of defendant’s request, which was after most of those continuances; and the absence of prejudice to defendant. A prior consistent statement is admissible to rehabilitate a witness whose credibility is challenged, but only if the statement relates to the matter on which credibility was challenged. Defendant undisputedly produced evidence of financial responsibility, so prior consistent statements on that fact were not admissible, and the circuit court did not err in excluding those statements. Also, the exclusion of evidence is harmless beyond a reasonable doubt when the evidence excluded was cumulative. Defendant did not show plain error in circuit court’s misunderstanding of her minimum authorized sentence because she did not show that the circuit court based its sentence on the misunderstanding.   
State of Missouri, Respondent, vs. Jennifer A. Heidbrink, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110697

Spouse’s telephoned threats admissible  
The circuit court admitted into evidence recordings extracted from victim’s telephone. Statute excludes from evidence certain confidential communications between spouses, but that privilege does not apply to the contemplation of future crimes, like threats from one spouse against another. It also does not apply to persons between whom the marital relationship has ended, even before a judgment dissolving the marriage. Even if the disputed evidence were erroneously admitted, it would not require reversal because no different result was reasonably probable, even without the disputed evidence. That evidence also supported an expert witness’s testimony about domestic violence.   
STATE OF MISSOURI, Plaintiff-Respondent v. KENNETH L. LIVINGSTON, Defendant-Appellant  
Missouri Court of Appeals, Southern District - SD37489

Impairment is not coercion  
In support of a motion to suppress a defendant’s confession as involuntary, defendant alleged that he was impaired during interrogation by “intoxication, abuse, and mental illness [.]” But those allegations do not constitute an allegation that the confession was involuntary. Those allegations, if found as facts, go to the weight of defendant’s confession and not to the confession’s admissibility. The confession supported a finding of deliberation, as did evidence of pre-existing hostility between defendant and victim, and flight from the scene.    
STATE OF MISSOURI, Plaintiff-Respondent v. MICHAEL ANTHONY NUGENT, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37396


Whistleblower petition okay  
Statute protects public employees from employer’s retaliation for disclosing what the employee reasonably believes is misconduct. That includes being ordered to resign or be fired, for reporting city officials’ misuse of authority over employee travel, as alleged in the petition. The petition stated a claim, so dismissal was error, and the Court of Appeals reverses that judgment. Due process protects non-government entities, not government entities, so the city has no standing to raise the argument of vagueness against a statute.   
Colleen Spurlock vs. City of Columbia, Missouri  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85580


Prior bad act admissible  
A venire person expressed concerns with gun violence, but also promised to rule based on the evidence, so denying a motion to strike that venire person was not error. Evidence of prior bad acts is not admissible to show criminal propensity, but is admissible to show animus toward victim, which the defense raised in opening statement. Cumulative evidence can be admissible as corroborative, and is subject to exclusion as inflammatory only when it ceases to be more probative than unfairly prejudicial. Evidence of flight is relevant to consciousness of guilt.  
State of Missouri, Respondent, v. Chicory Griffin, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110282


Parentage judgments not final  
Two same-sex spouses had two children, both born of the same spouse, but each with a different donor of genetic material. After the filing of an action for dissolution of marriage, one spouse filed two petitions, one petition for each child, in two counts: the first count sought a determination of the parent/child relationship among the spouses and respective donor; and the second count seeking custody and related rulings. The circuit court issued judgment on each petition’s first count only. The second counts remain pending, the judgments are not certified for appeal, and the pleadings in the dissolution action are not in the legal file. In that posture, the judgments are not final and the Court of Appeals has no jurisdiction. Dismissed.   
S.K., Et al. vs. T.K., M.K., and R.R.  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85701 and WD85702

No personal jurisdiction for decree of dissolution  
Rule allows circuit court to set aside a default judgment for lack of personal jurisdiction, from which the judgment is subject to de novo review, and not review for an abuse of discretion. Statute and rule gave personal jurisdiction to Missouri courts over any person who lived in lawful jurisdiction in state. But plaintiff’s mere allegations of the parties’ ten days’ residence in Missouri, without supporting evidence, do not support a finding of fact in plaintiff’s favor. Dissolution of marriage is also partly an action in rem, but the division of property must be equitable, as the consideration of the previously-defaulting party’s evidence will show. 
Angela Christine Wilson vs. Christopher Darnell Wilson  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85210


Insurer’s intervention denied  
In an action to confirm an arbitration award, appellant filed a motion to intervene, which the circuit court denied. Intervention by right or by permission is subject to statute and rule. The statute governs intervention by right and by permission, the circuit court held that the statute did not apply, and appellant does not challenge that basis for the ruling, so the ruling is affirmed as to intervention by right and by permission. The rule provides a right of intervention to protect an interest, but an insurer’s potential liability for indemnification is not an interest supporting intervention, and the insurer protects that interest by defending its insured. Rule permits intervention on a common matter of fact or question of law but, by the time appellant filed the motion, the parties had completed arbitration—which appellant declined to join—and secured an award, of which they sought confirmation. Denied intervention, appellant had no standing to file post-judgment motions as to the judgment of confirmation.   
Leslie M. Henson, Individually, and As Personal Representative of the Estate of Leslie S. Henson vs. Merob Logistics, LLC, and Tedros S. Lakew, and Zurich American Insurance Company  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85158

Equitable garnishment judgment does not preclude claim for bad faith refusal to settle  
In a malpractice action, defendant insured assigned insurance coverage to plaintiffs, who proceeded to judgment on the malpractice claim, and brought actions against insurer for equitable garnishment and bad faith refusal to settle. Defendant agreed to severance of those two claims, the circuit court ordered accordingly, and the claims proceeded to separate judgments. On the equitable garnishment claim, the insured’s failure to cooperate negated coverage. That ruling does not preclude the claim for bad faith refusal to settle, under either res judicata or collateral estoppel, because the ruling on equitable garnishment addressed neither the facts nor issues of bad faith refusal to settle. Also, insured acquiesced in that procedure and waived any splitting of claims.   
Jessica Stacy and Brian Stacy, Appellants, v. The Bar Plan Mutual Insurance Company, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110678


No double jeopardy in status offense  
Delinquency proceedings determine whether a juvenile broke a state or local law that would subject an adult to criminal punishment. Status proceedings determine whether the juvenile division should exercise its authority over a juvenile. Constitutional protections apply to delinquency proceedings, but not to status proceedings, which include the proceeding to determine whether appellant violated an order of home confinement.  Therefore, double jeopardy did not bar the circuit court from finding appellant guilty of a status offense and the delinquency offense of tampering with an electronic monitoring device.  
In the Interest of: J.K.M.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110278

Personal Injury

Notice of defect in thoroughfare discussed  
In an action against certain cities, for damages caused by a defect in “any ... thoroughfare [,]” statute requires plaintiff to give the city notice of certain details about the injury. Thoroughfare means any infrastructure engineered to facilitate passage from one place to another, including a bicycle path, on which plaintiff alleged the injury occurred. The degree of detail in the notice need only be sufficient to “give the municipality a starting point to investigate, not a means to try its case.” For that purpose, plaintiff’s notice was sufficient, and the circuit court misapplied the law by dismissing the action, so the Court of Appeals reverses that judgment.  
Rachel Sender, Appellant, v. City of St. Louis, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110898


Appellant’s deficient brief preserved no error for review  
Rules require appellant to identify the ruling claimed as erroneous, show how such error requires reversal of the judgment against him, and supporting legal authority, and attach an appendix showing the challenged ruling. Appellant’s compliance with those rules is so deficient as to preserve no error for review so, despite the preference for ruling on the merits, the Court of Appeals must dismiss the appeal.   
State of Missouri, Respondent, vs. James S. Murphy, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110600

Investigation of mental health would not have helped  
Movant claimed that trial counsel was ineffective for failure to investigate defendant’s mental health. No such duty exists when defendant “appears to have the present ability to consult rationally with the attorney and understand the court proceedings.” The credible evidence showed only conditions that are expressly excluded from the statutory definition of mental disease or defect, and appellate courts defer to that credibility determination. Those facts rendered meritless any appeal based on denial of a continuance to investigate defendant’s mental health.   
Hubert L. Harris, Appellant, v. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110449

Real Estate

Prescriptive easement affirmed  
Respondent established an easement over disputed land by adverse possession. Adverse possession’s elements include use that is continuous and hostile. Respondent showed that she possessed the land by building planters on it, that such possession was continuous because respondent maintained the planters all year, and that such possession was hostile in that building and maintaining the planters was inconsistent with appellant’s possession of the disputed land. Appellant sought to restrict defendant to an easement relative to its description in a warranty deed: in circuit court, within that description by express grant; on appeal, outside that description by permissive use. Because the two theories are different, appellant preserved no error as to either.  
Ramalina Steiner vs. Stephanie Stribrny  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85649

Private electrical power generated rejected  
Granting an application for a building permit is ministerial when the application shows compliance with applicable standards. Standards in the respondent City’s zoning code authorize listed uses and accessory uses, defined as customarily incidental to the permitted use, which does not describe a grocery store with its own natural gas-powered electrical generation plant. Also, “[i]t is instructive, if not controlling, in reaching this conclusion, that where the City code intends to authorize power generators as either a permitted use or an authorized accessory use in a zoning district, it has expressly done so.” And it was undisputed that the generator could not comply with City code noise standards. The record refutes other alleged grounds for denial. The Court of Appeals affirms the Board of Zoning Adjustment’s denial of application.   
Four B. Corp. and Harrisonville Marketplace II, LLC vs. City of Harrisonville, Missouri Board of Zoning Adjustments  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85325, WD85332, and WD85421

“Or” means “either”  
Contract for sale of real estate provided transfer of ownership upon delivery of various payments that occurred timely, and: a balloon payment due on a date certain; “or” when buyer paid off seller’s mortgage, which occurred after the balloon payment date. When the buyer paid off the mortgage, the seller refused to transfer ownership for lack of the balloon payment. But “or” means “either,” and the contract did not specify that the earlier was controlling, so paying off the seller’s mortgage satisfied the contract. Judgment on breach of contract for buyer affirmed.   
Hui Jun Lin vs. Ann Clark, Successor of Hsiao Li Chang Estate  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85124


Telecommunication constitutes manufacturing  
“Statutes creating tax exemptions “must be strictly, but reasonably, construed against the party claiming the exemption.” Exemptions from use tax include the purchase of an item, or replacement item, “directly used” in manufacturing something intended for an eventual transaction that will be subject to sales or use tax. Manufacturing means transforming one thing into another when each thing has a different “use, identity or value [.]” Direct use means a place in an integrated plant, which includes “substantial use,” which means proximity to the process and product. Those definitions describe telecommunication’s various conversions of sound into signal and back into sound.   
Charter Communications Entertainment I, LLC, Respondent, vs. Director of Revenue, Appellant.  
(Overview Summary)  
Supreme Court of Missouri - SC99517

Refund period reduced retroactively  
Taxpayer had city earnings tax withheld in 2019 and 2020, when the city’s ordinance allowed a refund of overpaid city earnings tax, on an application filed within five years of the tax’s due date. In 2022, an amended ordinance changed that procedure, requiring any protest to be filed with full payment no later than the delinquency date of the taxes due, which shrank the time for filing to the current year. Taxpayer filed an application for refund of 2019 and 2020 taxes in 2022, so the city applied the 2020 ordinance, and denied taxpayer’s application. Taxpayer appealed by petition to the circuit court under the Missouri Constitution’s protection from retrospective laws. Retrospective laws are those that change rights already vested. Vested rights do not include a tax refund period, the circuit court held, and that is generally true of limitations on the time for filing. But time limitations can neither revive an action already extinguished, nor extinguish an action viable when enacted, unless the enactment saves those actions with a reasonable time to file. Judgment reversed and remanded.   
Kim Huebert vs. City of Kansas City  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85737

Workers’ Compensation

Prevailing factor discussed  
On a claim of occupational disease, claimant has the burden of proving that employment was the prevailing factor, that is, that claimant “contracted an occupationally induced disease rather than an ordinary disease of life.” Claimant met the burden of producing evidence supporting her claim, if persuasive to the Labor and Industrial Relations Commission, but did not meet her burden of persuading the Commission. The issue was the subject of opposing expert witnesses; the Commission determined credibility, and the Court of Appeals defers to that determination.   
Suzanne Steinbach vs. Maxion Wheels, Sedalia, LLC, Hayes Lemmerz International  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85697