Case summaries for April 15 - April 21, 2022

Appellate | Civil | Criminal | Family | Orders of Protection | Post-Conviction | Real Estate

Appellate

Issue on Appeal Waived at Trial 
On appeal from a judgment terminating parental rights, each of appellant’s points replied on sought reversal for lack of personal jurisdiction over appellant, arguing that service by publication was insufficient. But appellant never raised that issue to the circuit court, and so waived that issue. Judgment affirmed.  
IN THE INTEREST OF: J.J.R.H., a minor child 
Missouri Court of Appeals, Southern District - SD37202

Civil

Re-Platted Lots Irrelevant to Restrictive Covenant  
Respondent sought relief from a judgment enjoining respondent from violating restrictive covenants, arguing that an amendment had deleted the violated restrictive covenant. Restrictive covenants defined subdivision as 14 lots, required a majority of votes to change the restrictive covenants, and granted one vote per lot. One lot owner re-platted one lot into four lots, making 17 lots. But that change, though recorded, never appeared in the restrictive covenants, so the restrictive covenants’ provisions remained unchanged. The number of lots and votes remained 14, one for each lot as originally platted, not 17 as re-platted. The collective ownership of the re-platted lot counted as one vote out of 14, not four votes out of 17. As counted in accordance with the restrictive covenants, eight supporting votes were necessary to amend the restrictive covenants, and only six votes supported amending the covenants. Therefore, respondent did not show the right to relief from the earlier judgment of injunction.  
George R. Wagner, et al. vs. Barry L. Nolan  
(Overview Summary)  
Missouri Court of Appeals, Western District – WD84214

Order to Compel Production of Work Product Prohibited  
Defendant sought and received from circuit court an order compelling production of documents, in possession of plaintiff’s counsel, embodying the negotiation and settlement of a claim related to pending litigation. Drafting those documents because of the related claim makes them attorney work product, notwithstanding that they were for avoiding trial rather than at trial, and immune from discovery. Any disclosure to a third party in the related claim did not constitute a waiver of immunity for defendant. An exception from that immunity exists if defendant showed substantial need and undue hardship, but that showing was negated by plaintiff’s full disclosure to defendant of medical treatment for the related claim. Court of Appeals makes permanent its writ of mandamus barring enforcement of the circuit court’s order compelling production of documents.  
Kristine Hill and Dennis Hill, Relators, v. Honorable Stanley J. Wallach, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District – ED110232 

Motion to Set Aside Default Unsupported  
Rule provides that the elements of an action to set aside a default judgment include good cause for the default, which appellant did not show by any evidence: neither a verified petition, nor supporting affidavit, nor any testimony or document at the hearing on the petition. Allegations and argument of counsel are not evidence. The “verified declaration” of counsel, not sworn before anyone authorized to administer oaths even under procedure for remote notarization, did not constitute an affidavit.  
Trina Dorsey, Respondent, v. JPAM Consulting, Inc., Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District – ED109723

Criminal

Evidence Supporting Defense Must Be Substantial  
The defendant has the burden of raising, and supporting with substantial evidence, the defense of involuntary intoxication. Defendant’s evidence was not substantial; the circuit court did not err in excluding appellant’s proffered expert evidence on the effects of PCP intoxication and an instruction on involuntary intoxication. Because marijuana is unregulated, a marijuana user cannot rely on any warranty of purity, so the spiking of marijuana with PCP unknown to the user of such marijuana does not show involuntary intoxication.  
State of Missouri vs. Curtrail J. Hudson  
(Overview Summary)  
Missouri Court of Appeals, Western District – WD84162

Evidentiary Rulings Related to Self-Defense and Duty to Retreat  
Evidence that defendant received a “graphic and lethal threat, delivered with profanity and racial epithets, was not hearsay [.]” Hearsay is evidence of an out-of-court statement offered for the truth of the matter stated, and the truth of the threat’s content was not the evidence’s purpose, the purpose was to show the defendant’s state of mind. The defendant’s state of mind was a “critical” element of defendant’s self-defense theory, and the evidence was “highly probative” of that element. When the threat came to light, who made the threat to the defendant, and whether any corroborating evidence accompanies evidence of the threat, do not change the defendant’s right to bring evidence of the threat before the jury. Excluding evidence of the threat was plain error. An instruction imposed a duty to retreat on defendant if unlawfully present on property, and State’s witness testified that defendant landlord was unlawfully present because defendant was evicting a tenant, but that testimony was an inadmissible conclusion of law. Eviction, lawful presence, and duty to retreat each constituted a “false issue” before the jury, which caused plain error. Ten or 15 transcript pages of victim’s statements, made during a police interrogation an hour after the shooting, may lack the spontaneity crucial to the hearsay exception for an excited utterance; and may constitute improper bolstering. Evidence of victim’s methamphetamine use was admissible for impeachment.    
State of Missouri, Respondent, vs. Carl Justin Townsend, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District – ED109061

Family

Acquiescence Supports Termination  
Rule governing motions for continuance requires a writing and a supporting affidavit, and circuit court need not continue a trial pending resolution of criminal charges. Termination of parental rights is available when (1) a statutory ground has support in clear, cogent, and convincing evidence, meaning evidence that “instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true [;]” and (2) it is in the child’s best interest, as shown by a preponderance of the evidence. Evidence of out-of-court statements of children, including a stepchild, were admissible as an exception to the rule barring hearsay. Grounds for termination of one child include acquiescence in abuse of any other child in the family. More abuse of one child does not diminish the consequences of abusing another child. Any challenge to the judgment’s findings about children, that they were insufficiently specific to each child, was waived in the absence of motion to amend judgment.  
In the Interest of: K.N.D., D.D.D. and G.N.D.; Juvenile Officer, Department of Social Services, Children's Division vs. C.K.D. and D.L.D.  
(Overview Summary)  
Missouri Court of Appeals, Western District – WD84708, WD84709, WD84712, WD84736, WD84737, and WD84738

Orders of Protection

Alarm, Objective and Subjective, Shown  
A judgment made without written findings of fact is presumed to stand on findings of fact that support the judgment’s conclusions of law and order of relief. The elements of a full order of protection for stalking include a course of conduct, serving no legitimate purpose, that causes alarm in the petitioner and in a reasonable person. Evidence supporting such findings included a course of conduct escalating in gravity including threatening communications made electronically and in person and multiple acts of vandalism. Petitioner showed subjective alarm through evidence of measures to protect himself from physical harm.     
J.W.M., Respondent, vs. D.L.O., Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District – ED109500

Alarm, Objective and Subjective, Shown  
A judgment made without written findings of fact is presumed to stand on findings of fact that support the judgment’s conclusions of law and order of relief. A family member of stalker’s primary target has standing to seek an order of protection. The elements of a full order of protection for stalking include a course of conduct, serving no legitimate purpose, that causes alarm in the petitioner and in a reasonable person. Evidence supporting such findings included a course of conduct escalating in gravity including threatening communications made electronically and in person and multiple acts of vandalism. Petitioner showed subjective alarm through evidence of measures to protect himself from physical harm.    
B.L.M., Respondent, vs. D.L.O., Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District – ED109499

Post-Conviction

Record Refutes Ineffective Counsel Claim  
On conviction of domestic assault in the third degree, movant charged appellate counsel with ineffective assistance for failing to challenge the sufficiency of the evidence supporting the element of a continuing intimate relationship. The record refuted the motion’s allegations, with the State’s evidence of an ongoing social relationship including consensual sexual activities. If a prosecutor’s closing argument misstated that law, reasonable trial strategy supported trial counsel’s decision to make no objection to that argument, and no prejudice resulted. No hearing was necessary before denying movant’s claims.  
Corey Burgess, Appellant, v. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District – ED109847

Failure to Advise Does Not Excuse Late Filing  
Rule requires circuit court to inform movant of post-conviction procedure, but failure to do so does not constitute third-party interference that excuses untimely filing of the initial motion, absent affirmative misrepresentation. An untimely filing waives any relief. Court of Appeals reverses circuit court’s judgment on the merits and remands for a dismissal.  
Jason D. Palmer, Appellant, v. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District – ED109781

Strategies Sound, Prejudice Absent  
Movant charged that trial counsel were ineffective but failed to support that charge when citing the following reasonable strategic decisions: not to use a peremptory strikes on a venire person, because that venire person showed no bias, and other venire persons did; not to call witnesses whose testimony would have been not credible, or detrimental to the defense, or cumulative; and not to impeach a witness on a theory unsupported by evidence. Movant showed no prejudice resulting from those decisions, especially against overwhelming evidence of guilt.  
Dyanthany Y. Proudie, Appellant, vs. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District – ED109543

Real Estate

Payment Alone Does Not Quiet Title  
An action to quiet title determines superior rights to property. The record supported a finding that appellant had donative intent when making a deed to disputed property in respondent’s name. An equitable claim based on who paid for the property does not necessarily prevail over a legal claim based on whose name is on the warranty deed to the property. Considering evidence relevant to setting aside the deed did not change an action to quiet title into an action to set aside a deed because evidence relevant to setting aside the deed is also probative to quiet title: “(1) names of the parties thereto, (2) word of grant, (3) description of the property, (4) execution and delivery by the grantor, and (5) acceptance by the grantee.” Adequacy of consideration is not determinative. “[E]ven if the consideration . . . for a deed is inadequate, the operative effect of the deed cannot be defeated in the absence of fraud, mistake, duress[,] or other inequitable incidents.”  
George Schumacher vs. Linda Stalder, et al.  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84570