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Case summaries for Apr. 17 - Apr. 23


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 | Family | Mental Health | Miscellaneous Actions | Post-Conviction | Probate | Real Estate | Schools | Utilities | Workers' Compensation


Must Resolve Claim Against Unknown
In an action over title to real property, plaintiff named “Unknown Parties,” so a judgment in that action is not final until resolution of claims against the unknown parties, even though they “may not actually exist [.]” Dismissed.
James Randolph vs. City of Kansas City, Missouri, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD82748 and WD82823

New Standard, New Evidence
In a direct review of a decision from the Labor and Industrial Relations Commission, the Missouri Supreme Court’s opinion ruled that the Commission had decided employee’s claim using a wrong standard. The ensuing mandate directed the Commission to conduct a “proper review” of employee’s claim. A proper review of employee’s claim must use the right standard, and a record of evidence relevant under the right standard, which employee did not know to offer under the old standard. Employer sought a writ of prohibition to prevent re-opening of the record, but the circuit court denied that relief, and the Court of Appeals affirms that ruling.
Missouri Department of Transportation vs. The Labor and Industrial Relations Commission
(Overview Summary)
Missouri Court of Appeals, Western District - WD82835

Docket Entry Discussed
A docket entry can be a judgment, but only if denominated as a judgment and signed, which did not occur with an earlier docket entry. Therefore, the earlier docket entry did not start the time running for the circuit court to lose authority. A later judgment saying otherwise was erroneous. Court of Appeals reverses and remands for further proceedings.
Shirley Buxton vs. Brenda Todd and Bank of Kirksville
(Overview Summary)
Missouri Court of Appeals, Western District - WD82641

Finality Indiscernible
When a circuit court grants a motion without reason, the Court of Appeals presumes that the reasons are those in the motion. But respondent’s motion set forth alternative theories, and the circuit court’s ruling was “So ordered [,]” so neither appellant nor the Court of Appeals can tell how the circuit court ruled on any element of any claim or defense. On that record, the Court of Appeals cannot know whether the judgment is final, which determines the Court of Appeals’ jurisdiction, so the Court of Appeals reverses and remands to circuit court for further proceedings.
Steven Loerch, Appellant, vs. City of Union, Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107908


Registration of Foreign Judgment Discussed
United States Constitution entitles the final judgment of any other domestic jurisdiction to full faith and credit, which occurs through an action under the Uniform Enforcement of Foreign Judgments Law. Those statutes provide that the filing of a bankruptcy order raised a presumption of finality and any defense, including finality, was due in a pleading filed 30 days after obtainment of personal jurisdiction over the respondent. A judgment registering the bankruptcy order made the bankruptcy order into a final Missouri judgment. The registering judgment is subject to the same challenges as any other Missouri judgment, including a motion to set aside, but respondent had already waived defenses to the bankruptcy order through lack of timely pleading in the registration action.
BERMAN, DELEVE, KUCHAN & CHAPMAN, LLC, Appellant vs. 417 RENTALS, LLC, Respondent
Missouri Court of Appeals, Southern District - SD36233


Federal Statutes Require State Sex Offender Registration
As required by federal statutes to qualify for federal funds, Missouri statutes create a State registry for sex offenders, and list the offenses of which conviction requires registration as a sex offender. One Missouri statute specifically exempts appellant’s offense from that list. But another Missouri statute specifically requires registration for any person whom federal statutes require to register, and federal statutes requires registration for appellant’s offense. “This is a policy decision for the legislature to determine, not the courts. Missouri has a dual registration scheme and has clearly established a system in which a person who may otherwise be exempt or qualify for removal under Missouri law must still register for their entire lifetime if he or she is required or ever has been required to register under [federal statutes].” The statute is unambiguous, so no construction is necessary, and aids to construction like the rule of lenity do not apply. Remanded for circuit court to determine appellant’s declaratory judgment action on exemption from registration.
Jason Michael Kyle Selig vs. Robert Russell, Prosecutor, Johnson County Circuit Court, Scott Munsterman, Sheriff, Johnson County Sheriff's Department
(Overview Summary)
Missouri Court of Appeals, Western District - WD82804

Domestic Assault Conviction Affirmed
The elements of domestic assault in the second degree include physical injury, which that statute defines to include impairment by choking, which the State showed with evidence that victim lost consciousness. Appellant did not show that victim’s unsolicited testimony that appellant “just got out” resulted in any prejudice. The elements of domestic assault in the second degree also include a specified relationship, which the verdict director omitted, but no manifest injustice occurred because the evidence showing that element was uncontested.
State of Missouri vs. Damon D. Marley
(Overview Summary)
Missouri Court of Appeals, Western District - WD82665

Sexual Misconduct Not Shown
Juvenile is subject to commitment for conduct that would constitute a criminal offense if done by an adult. On a charge of sexual misconduct in the first degree by exposure, the elements include defendant exposing defendant’s genitals. Defendant sent victim an image of genitals, but no evidence showed whose they were. Expert testimony not challenged in circuit court is properly before the Court of Appeals, but the expert did not see the exchange at issue, “which, even under our deferential standard of review, severely limits the probative value of her testimony.” Victim’s fragmentary testimony supported an inference on which to base that element only with additional speculation. Circuit court may disbelieve defendant’s denial of that element, but that credibility determination does not establish the element beyond a reasonable doubt. Judgment reversed and appellant discharged.
In the Interest of: D.G.E. vs. Juvenile Officer
(Overview Summary)
Missouri Court of Appeals, Western District - WD82856 and WD82857


Child’s Best Interest Favor Termination of Parental Rights
Circuit court did not abuse its discretion in ruling that termination of parental rights was in the best interest of children whose parent visited children only sporadically, and failed to support them financially, when no additional services could repair the relationship. Parent’s efforts to retain children do not change that conclusion.
IN THE INTEREST OF: T.T.O., J.J.O., T.N.O., J.A.O., C.D.O., III, and T.M.O. children under seventeen years of age GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent vs. C.D.O., Jr., Respondent-Appellant
Missouri Court of Appeals, Southern District - SD36389, 36390, 36391, 36392, 36393, and 36394

Mental Health

Guardian Ad Litem Does Not Determine Ward’s Competency
Circuit court appointed a guardian ad litem for appellant, and granted a guardian ad litem’s motion to withdraw on the guardian ad litem’s determination that appellant was not incompetent, but determining incompetence is not the guardian ad litem’s job. Guardian ad litem’s job is to represent appellant after a determination of incompetence shows the need for a guardian ad litem. Reversed and remanded for new trial in which co-conservators, appointed after judgment, will represent appellant.
Carl Watkins and Matthew Watkins, Limited Co-Guardians and Full Co-Conservators for Richard Watkins, Appellants, vs. Goose Creek Lake Trustees, Inc., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107966

Miscellaneous Actions

Disqualification for Criminal Offenses Clarified
Statutes grant a concealed weapon permit to persons who meet the statutes’ qualifications. Those qualifications include no plea of guilty to any criminal offenses that carries more than a one-year prison sentence. That description fits appellant because he pleaded guilty to criminal non-support. Those facts are a disqualification even if the plea were in another State. But those facts are not a disqualification if the State where the plea occurred classifies the offense as a misdemeanor. If the plea occurred in Missouri, no other State’s classification of appellant’s conduct applies.
Tonie M. Townsend, Appellant, v. Jefferson County Sheriff's Department, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107660


Appeal Dismissed Under Escape Rule
An absconding movant who causes prejudice to the criminal justice system puts dismissal under the escape rule within the discretion of the Court of Appeals. Repeated violations of probation and repeated escapes, causing repeated delays, support an exercise of discretion in favor of dismissal.
Shamika M. Thomas, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107978


Facts Material to Undue Influence Genuinely Disputed
Undue influence happens indirectly, so indirect circumstances show its occurrence, making it inapt for summary judgment. On a motion for summary judgment, the non-movant has the benefit of all reasonable inferences from facts established in the summary judgment record. The summary judgment record included evidence that a beneficiary had a confidential or fiduciary relationship with a settlor, from whom the beneficiary received a substantial benefit through a document, which the beneficiary helped procure. Those facts give rise to a presumption of undue influence that the defending party did not negate, so summary judgment for the defending party was erroneous.
Charla Ann Broughton, et al., Appellants, vs. Estate of Anna Lois Tyner, et al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108125

Real Estate

Summary Judgment on Mineral Rights Reversed
When respondent rejected appellant’s application to drill for oil, appellants brought an action for inverse condemnation, which made relevant whether appellants’ mineral rights under their lease had terminated. Termination can occur when drilling ceases to produce paying quantities, which means profit over operating expenses, but evidence of profit and operating expenses is absent from the record on summary judgment, so Court of Appeals cannot affirm on that theory. Mineral rights in a lease can also terminate on abandonment, but abandonment does not occur on mere cessation of production, so if respondent established cessation of production—even beyond genuine dispute—it would not show the right to judgment as a matter of law. And appellant raised a genuine dispute as to whether production ceased with evidence explaining when production happens versus when production is recorded. Unlike other judgments, a summary judgment can only survive appellate review on the theories announced in the motion. Summary judgment reversed.
JTC Oil Company, Inc., et al vs. City of Grandview
(Overview Summary)
Missouri Court of Appeals, Western District - WD82859

North Side Condemnation Award Affirmed
On construction of a circuit court’s local rule, appellate courts defer to circuit court that published the rule. Circuit court did not err in applying its local rule on “extraordinary cases requiring individual and continuing attention” to “one part of a large, complicated and extraordinary proceeding involving the acquisition of over 500 properties on an almost 100 acre site in the City of St. Louis.” Circuit court’s order under that rule, not notice of that order, started the time to file for an automatic change of judge. The parties’ stipulation in lieu of testimony, stating how witnesses would have testified, presented conflicting evidence subject to circuit court’s credibility determinations and appellate court’s deference. Statute bars evidence of a lease’s value from a trial on exceptions to commissioners’ condemnation award. Evidence of appellant’s expertise in real estate development was irrelevant to valuation of property, and cumulative, so circuit court did not plainly err in excluding that evidence. No plain error occurred when circuit court prodded counsel to move the presentation of evidence forward without commenting on the evidence. Respondent’s evidence showed condemned property after its taking, but so did appellant’s, and explaining any changes over time made the evidence admissible. Direct examination on the financing of property “opened the door” to cross-examination on that subject, including evidence that the transaction included a vast inflation of price and fraudulent use of tax credits. Appellate courts presume that circuit courts follow the law, so Court of Appeals presumes that the circuit court ordered an award of costs under the rule specifically for condemnation cases, and appellant did not show otherwise.
Land Clearance for Redevelopment Authority of the City of St. Louis, Respondent, vs. James Townsend Osher, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107081

No Deficiency in Contract for Deed
In their action for breach of contract, appellant sellers’ had the burden of proving facts that constituted the elements of their claims for damages, including a deficiency award, which their contract for deed with respondent buyers did not provide. Courts will not read such a provision into a contract for deed. Respondents had no burden to raise any such facts in any affirmative defense. Appellants had the burden of proof. Appellants did not show that waste is a cause of action in a contract for deed. Challenges based on the absence or weight of evidence must follow the format prescribed by case law or fail. 
TANEY COUNTY TITLE & ESCROW, LLC, Plaintiff/Respondent vs. RICHARD JENSEN and DJ JENSEN, Husband and Wife, Defendants/Crossclaimants/Appellants and KEVIN KNUDSEN and SHANNON KNUDSEN, Husband and Wife, Defendants/Crossclaimants/Respondents
Missouri Court of Appeals, Southern District - SD36165


Public Duty Doctrine Protects Mandated Reporter
The public duty doctrine limits the liability of a public employee to breaches of a ministerial duty from which harm to a specific individual is foreseeable and defines the element of duty in an action for negligence. A public employee has no liability to an individual for the breach of a duty owed to the general public only, like a safe work and educational environment, which statutes and school district policies on mandated reporting protect. Therefore, plaintiff failed to state a claim against a teacher who breached the mandated reporting duty, and circuit court did not err in dismissing the action. That ruling gave respondent all the relief that respondent sought, so that ruling did not aggrieve respondent, even though it did not rule on respondent’s alternative theories for dismissal. Rule allows a circuit court to certify an interlocutory judgment for appeal when it disposes of a judicial unit, like all claims against a party, when no such claims overlap with claims against another party.
E.M. By and Through her Mother and Next Friend, Melanee McInnis, Appellant, vs. Gateway Region Young Men's Christian Association, St. Louis Public Schools, Michael Holloman, and John Doe and/or Jane Doe, Defendants, and Tameka Wiggins, Respondent/Cross-Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108227


Net Operating Loss Rejected from ISRS
The statutes allow a public utility to finance the replacement of its infrastructure system through a surcharge (“ISRS”). In calculating a public utility’s ISRS, the Public Service Commission did not err in excluding a hypothetical net operating loss, which is “a tax return adjustment and not a regulatory item,” not related to any specific asset, and which the public utility as a whole will not incur over the ISRS period as a whole. Private tax ruling letters to other utilities generating an actual net operating loss do not change that result.
In the Matter of the Petition of Missouri-American Water Company for Approval to Change an Infrastructure System Replacement Surcharge vs. Missouri Public Service Commission
(Overview Summary)
Missouri Court of Appeals, Western District - WD83067

Workers’ Compensation

Personal Representative Revived Claim
Statutes require that any action before the Labor and Industrial Relations Commission shall be “simple, informal, and summary [.]” The rules of civil procedure do not apply unless some provision of law specifically incorporates them. On the death of a claimant, statute allows a personal representative to revive the claim by notice to other parties, and personal representative’s possession of letters testamentary raises a presumption of timely application and due appointment. A challenge to an award for lack of sufficient competent evidence gains no support if evidence contrary to the award is irrelevant. Nor does it find support in an attack on any evidentiary objection not made already, because objections not made are waived; and evidence, once admitted, can make a submissible case. “’[W]e have previously rejected this manner of "[u]nmade evidentiary objection[], shoe-horned into [an] evidentiary sufficiency claim[.]’”
Missouri Court of Appeals, Southern District - SD36205