Case summaries for April 19 - April 25, 2024

Appellate | Administrative | Civil | Criminal | DWI | Employment | Employment security | Evidence | Family | Probate | Workers' compensation

Appellate

Appellate review addresses written ruling, not spoken comments
Statute allowed an interlocutory appeal from circuit court’s ruling on a motion to suppress. Appellate review was for clear error, which is the “the definite and firm impression that” the circuit court made a mistake. A circuit court ruling without written findings of fact and conclusions of law raised the presumption that the circuit court made its ruling based on the evidence and argument of the prevailing party. No authority cited bound the circuit court to conclusions as spoken, during argument on the motion, over its written order. “[A]ppellate review is ordinarily limited to the written [order] and does not extend to oral comments made by the [circuit] court, which are not part of the [order because] courts speak only through their records.” Of two theories offered by the prevailing party in support of the order, appellant’s brief challenged only one, leaving an unchallenged basis to support the ruling. Order suppressing evidence affirmed.
(Overview summary) 
State of Missouri vs. Larry Daniel Brashier
Missouri Court of Appeals-Western District - WD86602

Appeal from judgment for erroneously included plaintiff dismissed
In plaintiff’s action for wrongful death, circuit court erroneously named an additional person as a second plaintiff in its default judgment against defendant. Such an error in the form of the judgment was subject to direct appeal. But defendant filed no appeal, only an independent action for relief from judgment, and an appeal from the adverse ruling in that action, each time serving only the plaintiff and not the second plaintiff. Settlement between plaintiff and defendant mooted the appeal as to those parties, and relief from the judgment as to the second plaintiff would constitute a denial of due process, so the Missouri Court of Appeals dismissed the appeal.
(Overview summary) 
Tabitha Holt vs. ZX International, INC.
Missouri Court of Appeals-Western District - WD86465

Sovereign immunity not preserved
In an action for employment discrimination, the employer challenged the reasonableness of the circuit court’s attorney fee multiplier. That challenge did not preserve any error as to whether the use of a multiplier against the state was barred under sovereign immunity. Sovereign immunity is not jurisdictional issue. Appellant’s brief must expressly address preservation of error. Preservation of error is a threshold issue. The Missouri Court of Appeals dismissed the appeal and remanded the action to circuit court for a determination of attorney fees for the appeal.
(Overview summary) 
Susan Hays, Respondent, vs. State of Missouri, Department of Corrections, Appellant. 
Missouri Court of Appeals-Eastern District - ED111748

Administrative

Sunshine law violation affirmed
Sunshine Law statutes required agencies to disclose and reproduce certain documents on request, and such documents were not subject to protective orders under discovery rules. Statutes also penalized an agency failing to comply “knowingly and willfully.” A violation is knowing when the violator knows that conduct is contrary to law. A violation is purposeful when the violator has a further agenda in violating the law. Circuit court ruled on one matter by partial summary judgment and another matter after trial. Therefore, the ruling on the one matter was subject to review under the standard for appellate review of summary judgment, which is de novo. Plaintiff established, and defendant agency failed to raise a genuine dispute as to, the material facts that defendant was an agency possessing records sought subject to the Sunshine Law. Defendant agency did not allege, within the summary judgment record, that an exception for institutional security applied. The other matter was subject to review as in any civil judgment. Substantial evidence supported a finding that the agency violated the Sunshine Law knowingly and purposefully to delay legal action against the agency.
(Overview summary) 
Willa Hynes vs. Missouri Department of Corrections
Missouri Court of Appeals-Western District - WD86483

Availability of judicial review discussed
Two parties had a contract that was subject to a decision by an agency. When the agency’s decision was reversed in circuit court, both the agency and the party aggrieved by the decision had the right to appeal. The agency’s appeal was not moot because a controversy remained even though the agency had no stake in that controversy. The party had standing to appeal because its contract rights were at stake even if it were a public entity, and statutory amendments did not deprive the party of judicial review of the administrative decision. The Missouri Court of Appeals did not review unpreserved arguments and arguments in excess of the related point relied on.
(Overview summary) 
Genesis School, INC vs. Missouri State Board of Education
Missouri Court of Appeals-Western District - WD86457

No substitution of discretion on judicial review
Statutes created an intervention program for licensees suspected of substance issues. Those statutes allowed the licensee and licensing agency to forego the usual disciplinary process in favor of drug testing, which the parties could set forth in an agreement. Admitting a violation of the agreement waived hearing on the matter and required suspension of the license until the licensee met specified conditions. That procedure constituted a non-contested case that was subject to judicial review de novo except as to the remedy — statutes provided that when the circuit court found the facts as the agency had, the circuit court had no discretion as to the resulting order. But on review of the agency’s order, even though the circuit court found a breach of the agreement, the circuit court applied factors not authorized by statute and reversed the agency’s order. “We recognize [appellant]’s efforts after she missed her drug screen indicate her mistake was genuine, and it is unlikely she used marijuana on August 19, 2021, given her negative test result the next day [because] the half-life of carboxy-THC is about one to two and a half days[.] But these considerations have no bearing on the plain and unequivocal language of [the statute] and the terms of the Consent Agreement.” The Missouri Court of Appeals reversed the judgment and remanded the action to the circuit court for reinstatement of the agency’s order.
KAYLA WILLIAMS, Plaintiff-Respondent v. MISSOURI STATE BOARD OF NURSING, Defendant-Appellant
Missouri Court of Appeals-Southern District - SD37731

Civil

Time limit for collecting on periodic payments applied
Appellant brought an action to enforce a judgment that divided periodic retirement benefits between the parties. When that judgment issued, the statutes presumed that any judgment was paid 10 years after entry. But a later amendment changed the presumption for periodic payments to 10 years of the due date. “[A]n amendment to a limiting period enacted prior to the expiration of the original period may be applied retroactively, since it does not affect material rights.” That amendment specifically applied to retirement benefits and all judgments not completely paid, which described the parties’ judgment, so the action to enforce the judgment was not time-barred.
(Overview summary) 
Mary Susan McCay, Personal Representative for the Estate of David V. McCay, Respondent, v. Kathleen P. McCay, Appellant.
Missouri Court of Appeals-Eastern District - ED111678

Criminal

Forcible compulsion found
The elements of sexual abuse in the first degree included forcible compulsion, which meant force applied to the victim’s body sufficient to overcome reasonable resistance. Evidence supporting a finding beyond reasonable doubt of forcible compulsion included defendant’s persistent sexual contact, “the disparity in ages, the location of the incident, and the position of authority and control” that defendant held.
STATE OF MISSOURI, Respondent vs. STEVEN EUGENE HARDCASTLE, Appellant
Missouri Court of Appeals-Southern District - SD37771

Prohibition issued in duck boat disaster case
Upon the governor’s directive to assist a prosecuting attorney, and dismissal of all charges filed by the prosecuting attorney and the attorney general, the attorney general re-filed the charges. The circuit court ordered the attorney general to disclose all communications among the governor, the prosecuting attorney, and the attorney general “that relate to the commencement, filing, or prosecution of the charges [.]” The circuit court made an exception for “any opinion, theory or conclusion of counsel [.]” But an opinion, theory or conclusion of counsel would be present in any compliance with the circuit court’s order and was privileged as attorney work product. Irreparable harm would result from their disclosure. The Missouri Court of Appeals made its preliminary order in prohibition permanent.
STATE OF MISSOURI ex rel. ANDREW BAILEY, Relator v. THE HONORABLE JOHNNIE E. COX, ASSOCIATE CIRCUIT JUDGE, Respondent
Missouri Court of Appeals-Southern District - SD37749

Plain error review denied
Plain error review is discretionary on a showing of “an evident, obvious, or clear” circuit court error. No such error appeared in accepting a spoken jury waiver without a writing, allowing the state to rehabilitate the victim after impeachment, not intervening sua sponte in the defense’s cross-examination or the state’s closing argument.
(Overview summary) 
State of Missouri, Respondent, vs. Pedro Torres Jasso, Appellant.
Missouri Court of Appeals-Eastern District - ED111691

DWI

Driving record identified out-of-state court
Statutes allowed revocation of driver’s license if driver had three intoxication-related driving convictions. Supporting evidence could include a certified driving record, which was subject to the interstate Driver License Compact statutes, which required driving records to “clearly identify” the court where any conviction occurred. But that requirement was merely directory and required only minimal information, not complete information, giving notice of the conviction alleged so that the driver may rebut it. With other identifying information included, the driving record need not name which trial court in the foreign state convicted the driver.
(Overview summary) 
David T. Lenau, Appellant, vs. Director of Revenue, Respondent.
Missouri Court of Appeals-Eastern District - ED111606

Employment

No anti-trust Issue in non-compete agreement
Appellate courts “review the summary judgment record in the light most favorable to the party against whom judgment was entered and accord that party the benefit of all reasonable inferences.” Missouri Antitrust Law barred any agreement constituting unreasonable restraint of trade. That did not describe a non-compete agreement between a former employee and former employer, even when characterized as a market allocation agreement, either a per se violation or under the rule of reason. That is especially true of a non-compete agreement entered in settlement of a dispute over an earlier non-compete agreement that was subject to no anti-trust challenge.
(Overview summary) 
MPHLEX, LLC, Et al. vs. Sovereign International, INC., Et al.
Missouri Court of Appeals-Western District - WD86444

Employment security

“Habitually confusing conduct . . . was legally sufficient”
Statutes allowed, and claimant agreed to, notices from the Missouri Division of Employment Security by regular mail or email; so multiple notices sent in either of those media were sufficient to start the time for appeal running. Equitable tolling provided no relief from a statutory deadline.
(Overview summary) 
Linda G. Runnels, Appellant, vs. Division of Employment Security, Respondent.
Missouri Court of Appeals-Eastern District - ED111645

Evidence

Clerical privilege discussed
Testimony of the State’s witness in support of the state’s case supported the jury’s verdict, appellate courts did not reweigh that evidence, and no appeal was possible based on the weight of the evidence. Presenting evidence after the denial of a motion to acquit at the close of the state’s case waived error as to that ruling. An offer of proof is necessary to preserve error in the exclusion of testimony. Statute provided a privilege for communications with clergy, so the circuit court did not err in excluding a pastor’s testimony and the presence of a third person — a necessary participant — during such communications did not alter that result. An out of court statement was offered for impeachment of a witness’s credibility, not for the truth of the matter stated, so the statement was not subject to exclusion as hearsay. Constitutional provisions allowed uncharged acts as propensity evidence if probity outweighs prejudice, which was ensured by jury instructions submitted and read aloud, and by the parties’ arguments highlighting those arguments. “[D]espite the glaring deficiencies in [appellant]’s brief on appeal, and with the assistance of the State’s well-organized brief, we exercise our discretion to review the case on the merits.”
STATE OF MISSOURI, Respondent v. JERRY STUDDARD, Appellant
Missouri Court of Appeals-Southern District - SD37372

Exhibit disclosed as soon as practicable okay
Rules required the state to use due diligence to procure evidence in the possession of government sources, not from the victim. Rules required the state to disclose evidence to the defense, and supplement its disclosures but not “to disclose evidence that it does not have.” The state disclosed a picture of victim’s injury a week before trial as soon as the state received it. The absence of a defense motion for continuance undermined appellant’s claim of prejudice.
(Overview summary) 
State of Missouri, Respondent, vs. Martin Wright, Appellant.
Missouri Court of Appeals-Eastern District - ED111602

Family

Child’s best interest prevails over stipulation
In an action for dissolution of marriage, the circuit court has a duty to independently determine provisions of custody and visitation according to the child’s best interests and may do so without regard for the parties’ agreement. On the morning of trial, appellant offered to settle for custody and visitation on the terms set forth in respondent’s petition three years before, but the circuit court heard evidence anyway and issued judgment with different provisions accordingly.
(Overview summary)
Derek Maxwell, Respondent, vs. Christina Maxwell, Appellant.
Missouri Court of Appeals-Eastern District - ED111647

Probate

IRA was non-probate property
Stipulating to the admissibility of an exhibit waived objection to the exhibit’s entry into the record and consideration by the circuit court. Decedent’s individual retirement account listed a contingent beneficiary and a primary beneficiary. The primary beneficiary agreed to transfer all “right, title and interest” in the account to decedent but decedent never altered the beneficiary designations. The beneficiary designations were deemed altered by statute, except those designated as unaltered by dissolution of marriage, which was the context of the transfer. The transfer was merely a disclaimer of the account as marital property and post-dissolution events showed that the decedent intended the primary beneficiary to have it on death. The circuit court’s award of the account to the primary beneficiary had support in the evidence and was not against the weight of the evidence.
(Overview summary) 
Michael Grabb vs. Teresa Lurinda Grabb a/k/a Terry Grabb and Amanda Huffman, Public Administrator for Morgan County, Missouri, Personal Representative of the Estate of Ronald E. Grabb
Missouri Court of Appeals-Western District - WD86056

Date of death determined heirs
Decedent’s heirs were determined as of the date of decedent’s death and not as of the date on which someone filed an application to determine heirship. Decedent’s sole heir when decedent died was a biological daughter. The biological daughter’s later adoption into adoptive family did not alter that result because statutes provided that adoption was effective prospectively only. The biological daughter’s delay in seeking to determine heirship did not alter that result, either, because statutes expressly allowed a determination of heirship after the time for administering an estate had passed and a five-year statute of limitations did not apply. Whether title to disputed property had changed by adverse possession or otherwise was not at issue in circuit court so it is not before the Missouri Court of Appeals.
(Overview summary)
In the Estate of Michall Duncan, Deceased.
Missouri Court of Appeals-Eastern District - ED111925

Workers’ compensation

Motion for reconsideration did not extend time
At the Labor and Industrial Relations Commission, claimant’s petition for review had fewer theories than claimant’s motion for reconsideration, so the motion for reconsideration was really an amended petition for review filed too late. Such a filing did not extend the time for seeking judicial review of the commission’s final award. The commission’s final award was subject to judicial review in the Missouri Court of Appeals, but the appellate court’s jurisdiction required the timely filing of a notice of appeal. A notice of appeal filed untimely can only be dismissed.
(Overview summary)
Tamar Godfrey, Appellant, vs. Metropolitan St. Louis Sewer District, Respondent.
Missouri Court of Appeals-Eastern District - ED111833