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Case summaries for Apr. 16 - 22, 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.

Appellate | Attorneys | Civil | Employment | Local Government | Post-Conviction | Real Estate | Workers' Compensation


Incomplete Dismissal Is Not Final
Circuit court’s judgment did not dispose of all claims as to all parties, in that it did not discuss all claims, so its judgment is not final. Rule allows certification of such a judgment for appeal, but no certification occurred. Therefore, the Court of Appeals lacks jurisdiction and must dismiss the appeal.
Laronda Phox vs. Joann C. Boes, et. al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD82194


Lawyers’ Fees Due Despite Conflict of Interest
Clients’ joint retention of lawyers supported presumptions of joint liability for legal services and agreement to pay, supported by substantial and probative evidence that no such alteration to that agreement ever occurred, and appellant’s evidence to the contrary did not negate the substantial or probative character of that evidence. Lawyers can forfeit their fees by withdrawing representation, but only when violation of a professional duty results, and the weight of the evidence shows that no such violation occurred when a conflict of interest arose between clients. No finding of apportionment was necessary.      
Pivot Holdings, LLC and DH Advisors, Appellants, v. The Daniel and Henry Company, Defendant, and Devereaux Murphy LLC, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108856


Facts Found in Interlocutory Order
Rule governing summary judgment allows an interlocutory order finding facts not genuinely disputed, which circuit court cannot change without notice, but which must appear in the final judgment only if material. “As a result [a fact] was established … so far as it goes. The fault in [appellant]’s argument is that [the fact] does not go very far” and does not contradict anything in the final judgment. Appellant’s evidence at trial did not compel a conclusion that appellant actually and exclusively possessed disputed land.
The Empire District Electric Company, a Kansas Corporation, and Westar Generating, Inc., a Kansas Corporation, Respondents, vs. John Thomas Scorse, as trustee under that certain Trust Agreement dated November 17, 1976, and its unknown successors and assigns, and John Thomas Scorse, individually, and his unknown heirs and assigns, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98380


Theories of Age Discrimination Discussed
The substantive law applicable to a fact is the law in effect when the fact occurred. When the facts alleged in appellant’s petition occurred, the law provided a "contributing factor" test for causation between damages and unlawful discrimination in employment. Unlawful discrimination in employment includes hostile environment, and  appellant’s evidence of supervisor’s “subjectively offensive” conduct raised a genuine dispute as to whether supervisor’s “conduct [wa]s objectively severe or pervasive.” Appellant’s evidence, including diversion of clients and denial of training, described adverse employment actions that, if appellant’s age was a contributing factor, raised a genuine dispute as to whether appellant suffered age discrimination. Missouri recognizes that constructive discharge is a form of adverse employment action, and alleging that employer fired appellant does not waive an allegation that employer constructively discharged appellant, in the alternative. Appellant’s allegations did not describe employment actions against her based on her status in a protected class, and resistance to those employment actions, so appellant stated no claim for retaliation.
C.L. Clark vs. AT&T Mobility Services, L.L.C., et. al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83821

Local Government

Funding for Services in Annexed St. Louis County Territory Okay
Constitution requires notice of, and imposes limits on, special laws. A special law is one that creates a classification with no plausible reason. Plausible reasons for cities in St. Louis County to pay fire districts for services in annexed territory, differently from  cities, include maintaining fire protection district tax revenue. Those payments from the city to the district do not constitute a tax on city residents and so violate neither due process nor the Hancock Amendment.
City of Crestwood, et al., Appellants, vs. Affton Fire Protection District, et al., Respondents.
(Overview Summary)
Supreme Court of Missouri - SC97653


Juror Misconduct at Issue
Direct appeal claimed circuit court error in finding no juror misconduct, while motion claimed ineffective trial counsel in failing to bring more evidence of juror misconduct. Denying the motion without a hearing, after barring investigation into juror misconduct, was an abuse of discretion.
Jamel Yates, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109043

Jail Law Library Sufficient
Record refutes movant’s charges of inadequate access to the courts, through movant’s several seasoned defense lawyers—private and public—and movant’s pro se practice, which shows that the jail law library was adequate. Nothing entitled movant to “unlimited access to the best law library.” Law library’s adequacy was not preserved for appeal, and omission of that issue did not prejudice movant in view of overwhelming evidence of guilt, so movant did not show that appellate counsel was ineffective.  
Tommy J. Davis, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108814

Dismissal Premature
Timely filing is an element of post-conviction relief that movant must plead and prove, but such pleading may only appear in an initial or amended motion, so denial of a separate “motion to excuse” was not error. Nevertheless dismissing, or denying, an initial motion before the time allowed for filing an amended motion was an abuse of discretion. Reversed and remanded.
RICK L. McCARTNEY, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36907

Real Estate

Adverse Possession Not Shown
When challenging a finding for lack of substantial evidence, appellant must address all evidence favoring the ruling, and show that such evidence is not substantial. Evidence contrary to the finding is irrelevant, does not support such a point relied on, and an unsupported point is abandoned. The elements of adverse possession include actual and hostile possession, for which respondent’s supporting evidence included fencing, farming, and otherwise using the disputed land, including for access to respondent’s back acreage.  
Stacey McElvain vs. Jason Stokes, et. al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83737

Workers' Compensation

All Characteristics Determine Permanent and Total Disability for Second Injury Fund
Amended statutes limiting Second Injury Fund liability qualify claimant as totally and permanently disabled depending only on specified pre-existing disabilities and a later qualifying injury. Whether any specified pre-existing disability has reached maximum medical improvement is irrelevant. An earlier physician’s medical report is admissible if attached to a later report entered without objection. Remanded for findings of fact under the applicable statute.
Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Appellant, vs. Jonathan Parker, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98704

Burden to Show an Idiopathic Condition Is on Claimant
To show that an award by the Labor and Industrial Relations Commission is unsupported by sufficient competent evidence, appellants must address all evidence supporting the award, but appellants fail to address evidence that heat index, not decedent’s obesity, caused decedent’s death. Appellants had the burden to prove an exception for idiopathic condition, but showed only that decedent’s obesity contributed to decedent’s death. Therefore, appellants failed to show that decedent’s death was outside the definition of an accident, and that the exclusive remedy of workers’ compensation did not apply.
Missouri Court of Appeals, Southern District - SD36658