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Case summaries for April 22 - April 28, 2022


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.

ADR | Appellate | Civil | Constitutional | Contract | Criminal | DWI | Post-Conviction | Workers' Compensation


Using Substitute Arbitrator Okay 
“[C]ontrary to Pitts' assertion, the issue here is the validity of the Delegation Clause [,]” which appellant did not challenge, only challenging the parties’ arbitration agreement generally. Therefore, appellant cannot avoid application of the delegation clause. The delegation clause authorized one specified arbitrator, who was unavailable, which the Federal Arbitration Act addresses by authorizing the circuit court to appoint a substitute arbitrator. The Supreme Court affirms the circuit court’s order confirming substitute arbitrator’s award. 
Car Credit, Inc., Respondent, vs. Cathy L. Pitts, Appellant. 
(Overview Summary) 
Supreme Court of Missouri – SC99335 

Actual Notice of Arbitration Clause No Substitute for Statutorily Mandated Notice 
In an action for breach of contract, circuit court compels arbitration if it finds that the dispute is within the scope of a binding arbitration clause, but only if the contract includes the notice required by statute. Whether the parties had actual notice of an arbitration clause is irrelevant because courts have no authority to make exceptions to the statutes. Statute allows interlocutory appeal of an order denying a motion to compel arbitration. 
Todd J. Wind and Todd J. Wind Enterprises, LLC., Respondents, v. Mark A. McClure, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109818 


Judgment on One Out of Three Claims Not Final 
Statutes allow an appeal only for specified rulings. Such rulings include a final judgment, which is a judgment that disposes of all issues as to all parties, but the ruling appealed addressed only one claim out of three. “[I]n determining whether an action presents more than one claim for relief, the focus is on the number of legal rights asserted in the action.” Such rulings also include a judgment certified for appeal, but no party asked for certification of the judgment for appeal, so no certification occurred. 
Jefferson County 9-1-1 Dispatch, Respondent, vs. Joseph G. Plaggenberg, Acting Director of the Missouri Department of Revenue, Appellant. 
(Overview Summary) 
Supreme Court of Missouri – SC98904

Judgment Not Final Without Ruling on Attorney Fees 
Absent other exceptions, the only circuit court ruling that is subject to appeal is a final judgment, meaning a writing denominated as a judgment that addresses all claims as to all parties. Judgment addressed all claims as to all parties except each party’s claim for attorney fees. “An unresolved claim for attorney’s fees can arrest the finality of a judgment, and defeat appellate jurisdiction.” Appeal, cross-appeal, and claims for attorney fees on appeal dismissed.  
David & Amy Schmidt vs. Dart Bein, LC 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84253, WD84490, and WD84491

Re-Litigation by Appeal Nets Attorney Fee Award 
The Court of Appeals makes instructions on appellate litigation available on its website. The statement of facts must not offer argument and must refer to the record. Every point relied on must identify an erroneous ruling and relate the error to a legal theory that supports reversal. “Dismissal is particularly appropriate where appellant makes no effort to correct the deficient points in [an] amended brief, even after being put on notice that they were inadequate.” Further, the rule providing sanctions for frivolous appeals applies, because appellant has required the other parties and the courts to expend resources on issues already decided, and has already been sanctioned for such conduct. Remanded to determine the amount of fees due. 
Richard Brown, et al. vs. Susan L. Brown, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84312 


Relief from Judgment Depends on Equities, Not Changed Analysis 
A judgment enjoined enforcement of certain special or local statutes as unconstitutional under one analysis, which the Supreme Court changed to another analysis, so the State sought relief from that judgment. Circuit court assumed that the other analysis would not have led to the injunction and, for that reason alone, granted relief from the judgment. But relief from a judgment is possible only when enforcing the judgment is no longer equitable, and equitable considerations do not include a change in judicial analysis. “A change in decisional law is neither necessary nor sufficient to warrant relief from judgment.” Remanded to consider the equities, including the finality of judgments and the burdens from enforcement of the statutes. 
City of Normandy, et al., Appellants, vs. Michael L. Parson in his Official Capacity as Governor of Missouri, et al., Respondents. 
(Overview Summary) 
Supreme Court of Missouri – SC98998

Default Stands on Registered Agent’s Recklessness 
Amended petition added a claim, so notice by summons was due, but appellant waived that argument by failing to raise it in circuit court. Rule allows circuit court to set aside a default judgment on a timely motion alleging a meritorious defense in the underlying action and good cause for the default. Good cause does not include recklessness, meaning a deliberate decision to risk default, which describes a registered agent’s departure from the State for six months with no arrangement for monitoring mail. Good cause also did not include the parties’ discussions of settlement, stating that no answer was due in another action, nor in the underlying action that did not “countermand” the summons’ directive to file an answer. 
370/Missouri Bottom Road/Taussig Road Community Improvement District, and 370/Missouri Bottom Road/Taussig Road Transportation Development District, Respondents, vs. Ice Zone Partners, LLC, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109876 


Declaratory Judgment Action on Second Amendment Preservation Act Can Proceed 
Statutes governing declaratory judgment allow a pre-enforcement constitutional challenge to clarify statutory rights and duties. “Plaintiffs need not subject themselves to multiple, individual suits to assert their constitutional challenges” and such actions “do not provide Plaintiffs with an adequate remedy at law” because it is not certain that those actions will reach the constitutional issues. Rule allows an appellate court to enter judgment, but plaintiffs have not yet filed a dispositive motion in circuit court, so the Supreme Court remands the action to circuit court for further proceedings. 
City of St. Louis; St. Louis County; and Jackson County, Appellants, vs. State of Missouri; and Eric Schmitt, Attorney General of Missouri, Respondents. 
(Overview Summary) 
Supreme Court of Missouri - SC99290 


Settlement Statutes' Derogation of Common Law Limited 
Statutory provisions, requiring that an offer to settle a claim must remain open for a certain number of days, constitute a condition for the accrual of pre-judgment interest, and proof of bad faith refusal to settle. Those provisions do not derogate the parties’ common law rights to reject an offer sooner than that time certain. Therefore, on defendant’s motion for summary judgment, evidence of a counteroffer from the defendant’s insurer raised a genuine dispute of material fact as to whether insurer accepted plaintiff’s offer. Circuit court erred in granting summary judgment for defendant. Remanded for further proceedings. 
Clifton Jameson, Appellant, vs. Alexis Still, Respondent. 
(Overview Summary) 
Supreme Court of Missouri – SC99279

Lease Renewed, But Not Personal Guaranty 
A guaranty is collateral to an underlying contract, and it renews or extends with an underlying real estate lease only if some language “clearly expressed” an intention to hold the guarantor personally liable under the renewed or extended lease, and not by mere implication. The primary source of liability is the guaranty language itself, supplemented with the underlying contract. The guaranty limited the guarantor’s personal liability to the initial lease term, while the lease cites the guarantor’s personal liability only for a security deposit, and the amended lease incorporated only the initial lease’s terms without reference to personal liability of the guarantor. Judgment affirmed against the company but reversed as to the guarantor. 
Breeze Investments, LLC vs. Michael Rockwell and MR Floors, LLC 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84588


Cross-Examination Does Not Waive Hearsay Objection 
The elements of unlawful use of a weapon, by being a felon in possession of a firearm, include control over a firearm. A State witness relayed a hearsay statement, offered to explain the witness’s subsequent conduct, but also declared that defendant felon had control of firearms; and the declarant never appeared in court. The defense’s cross-examination of the witness to discredit the hearsay statement elicited further evidence to support convictions, but it did not waive or cure the circuit court’s error in admitting the statement. Prejudice resulted because the evidence was reasonably probable outcome determinative, in that the remaining evidence only showed that defendant knew the firearms’ presence, not that defendant had control of the firearms. Each firearm unlawfully possessed constituted a separate offense. Reversed and remanded for a new trial. 
State of Missouri, Respondent, vs. Eric G. Hollowell, Appellant. 
(Overview Summary) 
Supreme Court of Missouri - SC99332

Registration Depends on Facts Found 
Sex Offender Registration Act requires registration by persons convicted of certain sex offenses against minors. Whether the conviction matches the offense depends on the conduct for which a person was convicted, and it is not limited by the statutory description under which the person pleaded guilty. Irrelevant are abandoned charges, probation conditions, and victim impact statements. Appellant pleaded guilty to offenses against minors, but none of those offenses involved sex. As to relief, statutes require sheriff to maintain a list of registered persons, but they do not authorize sheriff to adjudicate or enforce the registration requirement. So, even if the sheriff sent appellant a notice that appellant was required to register, a writ of prohibition would not lie. 
John Doe, Appellant, vs. Kurt Frisz, Chief Law Enforcement Officer, St. Charles County, Missouri, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99310

Castle Doctrine Covers Cars 
An instruction is due when it has support in substantial evidence. Evidence showed that defendant shot persons who ran at defendant with a firearm, and punched defendant through defendant’s open car window, so an instruction was due under statute embodying the Castle Doctrine. The Castle Doctrine allows deadly force reasonably believed necessary against unlawful force from a person who unlawfully entered her vehicle. Evidence that the person who struck defendant withdrew immediately does not negate the evidence that the unlawful entry and gunshot occurred simultaneously. Submitting only a general self-defense instruction prejudiced defendant because that instruction required defendant to show that defendant faced death or serious physical injury. When the evidence supported instructions for both general self-defense and Castle Doctrine, both instructions were due. Remanded for new trial. 
State of Missouri, Respondent, vs. Andrea Shaunte Straughter, Appellant. 
(Overview Summary) 
Supreme Court of Missouri – SC99170

No Self-Defense Instruction Due 
Defendant swerved the van to strike victim. On a charge of murder, the elements of self-defense include an immediate danger necessitating deadly force, and that defendant was not the initial aggressor. Those elements were unsupported by evidence that victim slapped defendant earlier in the day, threatened to do so again, and scuffled with defendant just before parting ways. “To justify the use of deadly force, ‘[s]ome affirmative action, gesture, or communication by the person feared indicating the immediacy of danger, the inability to avoid or avert it, and the necessity to use deadly force as a last resort must be present.’” 
State of Missouri, Respondent, vs. Tesia Akins, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109630

Change of Location Okay 
Appellant preserved statutory claims, but not constitutional claims, because appellant did not raise constitutional claims at the first opportunity and develop them in briefing. Statute governing specific grounds for transfer of case among divisions in Kansas City region did not apply to the location of the trial and, if it did, another statute allowed such transfer generally on good cause. 
State of Missouri vs. Eric V. McMillon 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84257

Capacity to Consent Discussed 
On charges of sexual assaults, by contacts with a person without the capacity to consent due to youth, the issue is “whether a defendant’s actions have coerced a victim into engaging in nonconsensual sexual acts [,]” which depends on the circumstances. The circumstances included defendant parent’s manipulative and sexually abusive behavior, starting when victim was a pre-teen, which supported a finding that victim had no capacity to consent. Those facts also rebut any exception to the Rape Shield statute. Defendant proffered instructions for different offenses, but those offenses were separate offenses and not lesser included offenses, so the circuit court did not err in refusing them. 
State of Missouri vs. Jerry Allen Hedges, Jr. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84346


Evidence of Facts Underlying Driving Record Needed 
Statutes enhance the offense of driving while intoxicated for an habitual offender. The elements of habitual offender status include at least five findings that defendant was guilty of specified Missouri offenses as defined when circuit court enters judgment. The State offered evidence of findings of guilty in Colorado offenses, in the form of a Colorado driving record with the Colorado statutes’ headings, but those statutes included facts not within the offenses specified for habitual offender status, so defendant’s findings of guilty could have been based on facts outside the specified offenses. “[I]t was possible to violate Colorado’s ‘driving under the influence’ statute . . . by merely being in actual physical control of the vehicle while in that condition [,]” but that conduct did not support a finding of guilty under any of the specified Missouri offenses. “When the evidence is utterly silent about the existence or non-existence of some fact, and the finder of fact draws from such silence a conclusion about that fact, this is mere supposition or speculation. It is not an inference, and certainly not a reasonable inference.” The Colorado driving record supported an inference of four findings that defendant was guilty of specified Missouri offenses, which does not show habitual offender status, so the Supreme Court remands the case to circuit court for re-sentencing. 
State of Missouri, Respondent, vs. Timothy A. Shepherd, Appellant. 
(Overview Summary) 
Supreme Court of Missouri – SC99081

Time to Consult Counsel Starts with Reading of Implied Consent Law 
Statutes require reading of the implied consent law, and 20 minutes for driver to consult a lawyer on request, before driver must either take or refuse a chemical test. The purpose is a choice informed by the consequences for refusal. Therefore, requesting a lawyer was sufficient to invoke the 20 minutes, but it did not use up that time when the reading of the implied consent law had not yet occurred. “The failure to provide [driver] 20 minutes to contact an attorney after being read the implied consent law (despite being afforded that opportunity before) violated the 20-minute rule, and resulted in prejudice [.]” Judgment affirming suspension reversed and remanded.  
Breeanna K. Kisner vs. Director of Revenue 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84603 


No Relief by Declaratory Judgment 
Court of Appeals’ authority is derivative of circuit court’s authority. Declaratory judgment statutes apply only where no other relief is possible, and rules allowed post-conviction relief, which was denied long ago. Circuit court dismissed appellant’s action, because it had no authority to review appellant’s claim again, and neither does the Court of Appeals. Appeal dismissed.  
David R. Alexander, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109808

Motion for Extension of Time Too Late 
By motion filed the day after an amended motion was due, appointed counsel sought an extension of time to file an amended motion. Circuit court had no authority to grant the motion for extension of time. “[T]he circuit court’s discretion to extend the time to file an amended motion must be exercised within the time in which the amended motion is due.” So, notwithstanding the circuit court’s order extending the time, the amended motion was late. A late amended motion is not subject to a ruling on the merits, unless an independent inquiry finds abandonment, so the Court of Appeals remands for that inquiry.   
Ralph B. Jones, Appellant, v. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109545

Imperfect Self-Defense Discussed 
Movant did not show that “imperfect self-defense” was a defense available to movant, especially when not asserting self-defense, and submitting an instruction on the lesser included offense of involuntary manslaughter was a sound strategy. An unambiguous and unanimous verdict is not subject to impeachment, including by evidence of a juror’s reservations about sentencing, so trial counsel was not ineffective for failure to offer such evidence. 
Tymon Reed vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84307

No Prejudice from Last Minute Amendment 
On a charge for felony murder, on the morning of trial, the State served an amended information changing the description of the underlying felony of resisting a lawful stop to add that the resistance was by flight. Deciding not to challenge that amendment showed neither trial counsel nor appellate counsel to be ineffective, because the amendment did not affect the defense, in that the defense was that the stop was not lawful, so the evidence was the same. 
Andrew Keith Stark vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84294

Blood Meth Concentration Negated Prejudice 
Motion charged ineffective assistance of trial counsel. Movant cited trial counsel’s voir dire, which was brief because the State had covered almost everything, but cited no jurors improperly seated or questioning to screen them out. Movant cited the decision not to object to the State’s expert testimony but did not show that any data used in that testimony was subject to objection. The State showed that movant’s blood had about four times the highest therapeutic dose of methamphetamine, negating any prejudice from decisions to make no objection to State witnesses’ testimony that movant looked or was intoxicated, and to not investigate and call witnesses who saw no sign of intoxication after brief and cursory contact. Not to defend movant’s driving, based on movant’s blindness in one eye, was a matter of trial strategy. No cumulative ineffectiveness can result when movant has not shown any instance of ineffective counsel. 
DAMIEN T. BRYAN, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD36990

Workers’ Compensation

Qualifying Injuries Determine Permanent and Total Disability for Second Injury Fund 
“Whether a claimant is permanently and totally disabled and whether that claimant is entitled to [permanent and total disability] benefits from the [Second Injury] Fund are entirely distinct questions.” Statutes limit Second Injury Fund liability to claimants totally and permanently disabled from the combination of any qualifying pre-existing disability and a later qualifying injury. Claimant must “elicit testimony from any of his experts indicating he would still be rendered permanently and totally disabled, absent his non-qualifying injuries.” Supreme Court affirms the Labor and Industrial Relations Commission decision against claimant. 
Christopher Klecka, Appellant, vs. Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent. 
(Overview Summary) 
Supreme Court of Missouri – SC99280