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Case summaries for April 28 - May 4, 2023


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.

Administrative | Appellate | Criminal | Employment | Evidence | Insurance | Post-Conviction | Probate


Officials are subject to Sunshine Law   
A motion to dismiss for failure to state a claim will test only whether the petition’s allegations describe a claim on which the law allows relief, if those allegations are true, not whether the allegations are true. A claim for violation of the Sunshine Law lies only against a political subdivision, but a political subdivision includes departments and divisions, which include a sheriff and a prosecuting attorney. Therefore, appellant’s petition for Sunshine Law violations against the sheriff and prosecuting attorney stated a claim, and the circuit court erred in dismissing the petition. A dismissal without prejudice is subject to appeal when petitioner elects to stand on the petition without further pleading.    
Sylvia Pride vs. Boone County Sheriff's Department and Diana O'Neill   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85605

Firing was a contested case   
Constitutional ban on laws retrospective in operation does not protect the State or its political subdivisions. Employer city terminated police chief, who filed a petition for judicial review of that decision in circuit court, and later amended it to add another employment-related claim, as allowed under rule on relation back. As to the circuit court’s ruling, granting leave to amend, the city abandoned its challenge by failing to cite any supporting authority. Public employment that is subject to termination for cause only is a property interest, the taking of which requires a pre-decision hearing of some formality, which defines the termination as a contested case. Statute lists the sole causes for terminating the employment of employee police chief, but employer city did not provide that procedure, so the circuit court correctly vacated the termination. A claim for tortious interference with contract lies against a third party only, not against party to the contract, and defendant alderman was a party to the contract because he was a member of the city’s governing body; how or why the defendant alderman acted as he did does not change the result. The circuit court did not abuse its discretion in excluding evidence that was cumulative, irrelevant to damages, or rendered irrelevant on appeal. Remanded to determine an award of expenses as allowed by statute, including attorney fees, for litigation including appeal.    
Greg Halderman vs. City of Sturgeon, Missouri and Tyler Patterson   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85066, WD85080 and WD85252


Appeal dismissed for briefing deficiencies    
Rule bars consideration of points “not properly briefed [,]” so as to give notice of the issues to the respondent and the Court of Appeals, as set forth in appellate rules. Rules require a statement of the facts to include references to the record; points relied on to address ultimate facts, show why reversal is necessary, and list principal authorities; argument to show how a point was preserved and include references to the record; and an appendix that includes a table of contents, the judgment appealed, and page numbers. Appeal dismissed.     
LT Group USA, LLC, Respondent, v. Mounanet Clark, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110910

Evidence on cross did not support an against the weight-of-the-evidence challenge   
The Court of Appeals denies appellant’s challenge to the circuit court’s finding, that appellant consented to the termination of parental rights, because appellant consented on the record. When appellant challenges a ruling as against the weight of the evidence, appellant must premise the argument on the same deference to the circuit court’s findings as the Court of Appeals does, resolving all evidentiary contests as the circuit court did. That includes evidence that appellant elicited on cross-examination, because such evidence contests the evidence on direct examination, so cross-examination testimony that the circuit court did not credit cannot support appellant. Appellant’s reliance on contested evidence, and omission of evidence supporting the challenged finding, render appellant’s argument null. Because appellant failed to challenge an alternative basis for the circuit court’s ruling, that unchallenged basis supports the ruling. Judgment affirmed.   
In the Interest of: J.R.S. and L.X.S., GREENE COUNTY JUVENILE OFFICE, Respondent vs. H.A.S., SR., Appellant  
Missouri Court of Appeals, Southern District - SD37768 and SD37769

Plain error not alleged   
Appellant sought plain error review and so had the burden to show plain error. The elements of plain error include a manifest injustice, or miscarriage of justice, which appellant did not allege or argue. “In fact, [appellant] does not challenge the [conclusions of law supporting the relief ordered], so it is unclear what if anything [appellant] believes a new trial would achieve.” Affirmed.   
IN THE INTEREST OF: W.B.H.B., a minor child under seventeen years of age. GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent v. W.J.B., Respondent-Appellant  
Missouri Court of Appeals, Southern District - SD37825 


Faretta hearing okay   
When appellant moved to proceed pro se and signed a waiver of counsel, counsel remained appointed until the circuit court granted the defendant’s motion; but neither defendant nor counsel made an objection to the Faretta hearing, so the unpreserved error is subject only to plain error review. Appellant’s conduct before and after the waiver, including extensive and sophisticated criminal defense pro se, also show that the waiver was voluntary, knowing, and intelligent. Appellant’s incomplete record on appeal does not show otherwise. A motion for new trial is generally due before sentencing, so a motion for new trial is not necessary to preserve error in sentencing. “All [appellant] needed to do to preserve his claimed sentencing error was to raise the issue during the sentencing proceeding.” The State’s sentencing recommendation, as set forth in its plea agreement, did not bind the circuit court. “It is axiomatic a sentencing court is free to ignore the State's sentencing recommendation.”   
State of Missouri, Respondent, vs. Randy G. Teter, Appellant.   
(Overview Summary)   
Supreme Court of Missouri - SC99464

Colloquy on waiver of counsel okay   
Defendant withdrew his motion to proceed pro se, so the circuit court never rules on it, and arguments about any such ruling are inapplicable. Appellant did not show that the circuit court’s inchoate colloquy on waiver of counsel, including a projection that trial would be delayed and eventually result in conviction, was improper or inaccurate. The State did timely disclose evidence in that it did not make a reasonable investigation that would have revealed that evidence in time for a timely disclosure, as required by rule. But failure to seek a continuance raises an inference of no prejudice, the evidence was partly cumulative, the State downplayed that evidence, and appellant did not show how more timely disclosure would have altered his defense and the outcome at trial.    
State of Missouri vs. Joseph C. Griest   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85179

No actual prejudice shown from victim advocate’s presence   
In criminal actions, constitutional provisions protect the right to a fair trial, including a “courtroom free from coercion.” Coercion includes practices that “might erode the presumption of innocence.” Appellant did not show that the presence of a victim’s advocate in the courtroom caused such prejudice inherently or actually. “[T]here is no indication in the record the jury knew who the victim services advocate was, who she worked for, or why she was in the jury box” while the jury was in the gallery for COVID protection. Conviction affirmed.    
State of Missouri, Respondent, vs. Tyrone Valentine, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110295


Claims stated for discrimination and hostile work environment   
Judgment that dismissed all claims of some petitioners disposed of a judicial unit and was subject to certification for appeal. A petition states a claim for relief when the petition alleges the facts that petitioner will prove at trial and that a jury must find to grant relief. The elements of claims for racial discrimination and hostile work environment include harassment motivated by appellants’ membership in a protected class, which appellants satisfied with allegations of racially segregated facilities and of “incidents involving swastikas, nooses, and both written and verbal racial slurs that were not investigated, or tacitly supported, by Respondents.” Appellants need not plead their individual subjective experiences to state a claim. Dismissal reversed for proceedings on appellants’ claims of racial discrimination, hostile work environment, and aiding and abetting that conduct.    
Emanuel Matthews, Et al. vs. Harley Davidson, Et al.   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85267 and WD85409


Cumulative evidence admissible for weight on main issue  
“[A] trial court does not have discretion to reject evidence ‘as cumulative when it goes to the very root of the matter in controversy or relates to the main issue, the decision of which turns on the weight of the evidence.’” In an action to confine respondent as a sexually violent predator, a victim’s testimony was relevant to, and probative of, the State’s prima facie case; so excluding that testimony would let respondent control the State’s case, which respondent cannot do. And, even if admitting that testimony were error, it did not “materially affected the merits of the action [,]” because other evidence supported the jury’s finding.  
Missouri Court of Appeals, Southern District - SD37526


Vehicle was not underinsured   
Respondent insureds’ automobile policy defined an underinsured vehicle as a vehicle carrying less insurance than respondents. Tortfeasor’s policy had a total bodily injury liability limit of $500,000. Respondents’ automobile policy had a total bodily injury liability limit of $50,000. Tortfeasor did not carry less insurance than respondents, so tortfeasor was not underinsured. Summary judgment for respondent reversed and remanded for a judgment in favor of appellant insurer.   
Missouri Court of Appeals, Southern District - SD37632

Carjacker was an uninsured motorist    
All drivers must carry a minimum amount of automobile liability insurance and all automobile liability insurance must include uninsured motorist coverage, so all drivers are covered for all damage, even by a driver who does not carry automobile liability insurance. Automobile liability insurance follows a vehicle as described in the policy, but uninsured motorist coverage follows an insured person as described in the policy. If an insurer attempts to exclude certain vehicles from uninsured motorist coverage, that insurer is selling less than required by law, and courts will not enforce that exclusion. When a carjacker stole an insured’s vehicle and drove it, causing injuries to the insured, the carjacker became an uninsured motorist who damaged insured. The circuit court did not err in refusing to enforce the exclusion from, and applying the per-person limit for, uninsured motorist coverage.    
DAWN BLAND, Plaintiff-Respondent v. PROGRESSIVE CASUALTY INSURANCE COMPANY, Defendant-Appellant   
Missouri Court of Appeals, Southern District - SD37582


Abandonment inquiry required   
Movant timely filed an initial motion. Movant filed for an extension of time for filing an amended motion, but the circuit court did not grant the extension of time, and the amended motion was untimely. Those facts raise a presumption that appointed counsel abandoned movant and require an inquiry to determine that issue. If abandonment occurred, the amended motion is deemed timely, and the circuit court must rule on it. If abandonment did not occur, the amended motion is untimely and the circuit court must rule on the amended motion. No such inquiry occurred but the circuit court ruled on the amended motion. The Court of Appeals reverses that judgment and remands the case to circuit court for the required inquiry into abandonment.   
Mark C. Brandolese vs. State of Missouri   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85169

Movant alleged no difference in defense   
Movant claimed that pleas counsel was ineffective for failing to develop or investigate charges, but did not allege any difference that such efforts would have made, and the circuit court found that there was none. The circuit court found that movant’s guilty plea was not less than voluntary, knowing, and intelligent. “The motion court's findings and conclusions are presumptively correct.”    
Nathan Canfield vs. State of Missouri   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD84989

Instruction on lesser included offense was sound strategy   
On charges including first-degree murder, appointed counsel offered an instruction on involuntary manslaughter. That practice constituted a reasonable trial strategy as a “safety valve,” even with a primary strategy of all-or-nothing, because overwhelming evidence made a conviction for some offense likely. That strategy was effective and benefitted the defendant. Evidence of the mental state required for first-degree murder also supports an instruction for the nested lesser-included offenses of manslaughter. No point determined on direct appeal is subject to re-determination on a motion for post-conviction relief.    
Paul E. Jinkerson, Jr., Appellant, v. State of Missouri, Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110518


Claim for reformation of trust was timely   
The Missouri Uniform Trust Code limits the time to file an action regarding a trust: ten years generally, and two years for contesting validity specifically. The latter did not apply to an action for reformation, because reformation challenges only provisions drafted under mistake of fact or law, and does not contest the validity of the trust. When a statute of limitations applies, laches will not apply, absent “special facts demanding extraordinary relief.” Appellant did not show that there was any prejudicial delay by respondent.    
JEFFREY BALDWIN, Individually, as agent for his children and grandchildren named below, as Beneficiary of the Roger Woodard Baldwin Revocable Trust dtd. November 5, 2001, as Amended and Restated, and certain sub-trusts created thereunder, and as Trustee of a descendant’s trust in his name as described below, Petitioner-Appellant v. JAN KAYE BALDWIN, Individually, as Beneficiary, and as Trustee of the Roger Woodard Baldwin Revocable Trust dtd. November 5, 2001, as Amended and Restated, and certain sub-trusts created thereunder, and KAYLI BALDWIN-HYTEN, Individually, as a Beneficiary of the Roger Woodard Baldwin Revocable Trust dtd. November 5, 2001, as Amended and Restated, and certain sub-trusts created thereunder, and as Trustee of a descendant’s trust in her name as described below, and ANDREA BALDWIN-GREGG, Individually, as a Beneficiary of the Roger Woodard Baldwin Revocable Trust dtd. November 5, 2001, as Amended and Restated, and certain sub-trusts created thereunder, and as Trustee of a descendant’s trust in her name as described below, Respondents-Respondents.   
Missouri Court of Appeals, Southern District - SD37567