Case summaries for April 29 - May 5, 2022

Administrative | Appellate | Constitutional | Contract | Corporations and Other Entities | Criminal | Family | Juvenile | Orders of Protection | Post-Conviction | Workers' Compensation

Administrative

Medical Marijuana License Limit Okay 
Agency regulations are arbitrary and capricious when they are contrary to policy considerations applicable under the law or facts irrelevant to those considerations. Regulations “may properly rely on predictions and forecasts, so long as those predictions or forecasts are reasonably based on the available facts.” Constitutional provisions expressly authorize a population-based limit on the number of medical marijuana facility licenses, and regulations implementing those considerations “bear a rational relationship to the objectives of” those provisions. Constitutional protections for farming do not apply to marijuana. 
Sarcoxie Nursery Cultivation Center, LLC, et al. vs. Randall Williams, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84492

Appellate

Acceptance for Filing of Amended Brief Does Not Constitute a Favorable Ruling 
Clerk of the Court of Appeals may strike an initial brief for non-compliance with appellate rules, but the Court of Appeals determines whether an amended brief is compliant, so the clerk’s acceptance of an amended brief for filing does not demonstrate the amended brief’s compliance with appellate rules. “Therefore, the fact that the filing of an amended appellant's brief does not result in a second rejection for non-compliance should not be construed as an indication that the amended brief complies” with appellate rules. Appellate rules require points relied on in a specific template to eliminate ambiguity and vagueness in appellant’s argument. Appellant’s argument could be one or more of several possible arguments and an appellate court cannot choose among possible arguments for appellant. Non-compliance requires dismissal.  
Evan J. Garey vs. Division of Employment Security 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84831

Deficient Point Relied on Requires Dismissal 
Appellant’s point relied on did not explain why the challenged ruling required reversal, and an appellate court must not search the argument section for supporting fact and theory, so the Court of Appeals dismisses the case. 
Ricky L. Stevenson vs. Missouri Dept of Health and Senior Services, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84787 

No Self-Transcription 
Court of Appeals makes its ruling only after a review of the record as described in appellate rules. Appellate rules require the appellant to file a transcript certified as the rules provide. The rules provide how the transcript must be certified, which does not include “an uncertified transcript seemingly transcribed by [appellant,]” which is what appellant filed. Without a record as described in the rules, the Court of Appeals cannot make its ruling and must dismiss the case. 
C.T., Respondent, v. E.Y., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110042 

No Appeal from Default Judgment 
Appellant did not appeal the denial of appellant’s motion to set aside the default judgment and only appealed the default judgment. A default judgment is subject to appeal only on subject matter jurisdiction, and appellant challenged only personal jurisdiction and circuit court authority. Appeal dismissed. 
Tabatha Moore, Respondent, vs. Dennis Crocker and One Stop Muffler, Appellants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110006

No Self-Transcription 
Court of Appeals makes its ruling only after a review of the record as described in appellate rules. Appellate rules require the appellant to file a transcript certified as the rules provide. The rules provide how the transcript must be certified, which does not include “an uncertified transcript seemingly transcribed by [appellant,]” which is what appellant filed. Without a record as described in the rules, the Court of Appeals cannot make its ruling and must dismiss the case. 
E.Y., Appellant, v. C.T., Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109961

Constitutional

Due Process Right to Be Present Violated 
In critical stages of juvenile actions, constitutional rights apply, including the due process right to be present at an evidentiary hearing. Limiting appellant juvenile’s appearance to video at the certification hearing constituted plain error in violation of those requirements. COVID directives expressly preserve such constitutional rights, no findings of fact support any departure under any statute, and appearances in person by other parties undercut the need for remote appearance by appellant. Judgment vacated and remanded. 
In the Interest of: C.A.M., Jr. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109128

Contract

Insurance Policy Did Not Show Loan 
Handwritten note did not show that a loan existed because it did not have the alleged borrower’s signature. A “key man” insurance policy renewal, payable to corporation, was silent as to any loan; and testimony from corporation’s owner, that the policy would repay the corporation’s owner personally, constituted parole evidence inadmissible to add provisions to the policy. Appellant had an opportunity to present evidence for purposes of due process and raised a challenge under the Missouri Constitution’s Open Courts provision by failing to raise it in circuit court.  
Michael Clark, Personal Representative for the Estate of Dora M. Wall, Deceased vs. Patsy G. Smith, Personal Representative for the Estate of Charles D. Smith, Deceased 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84408

Corporations and Other Entities

Kansas Corporations Law Applied 
Kansas statute governing Kansas corporations specifically applies to dissolutions voluntary and involuntary. Kansas statute governing re-instatement of corporate existence restores claims held as of dissolution but not claims arising during dissolution.  Therefore, appellant Kansas corporation had no authority to pursue a claim against respondent Missouri estate. 
Kansas City Chrome Shop, Inc. vs. Patsy G. Smith, Personal Representative 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84407

Criminal

Registration Is Perpetual 
Missouri statutes require registration if registration was ever required under United States statutes, which require registration for anyone convicted of any offense involving sexual contact with a minor, which includes appellant. Reducing the time on the registry was possible under the United States statutes but not under Missouri statutes. “Even if an offender is eligible for removal under [United States and Missouri statutes], they will still be . . . required to register pursuant to [Missouri statutes] for their lifetime.” Court of Appeals affirms the circuit court’s judgment denying a declaratory judgment in appellant’s favor. 
Liana MacColl (formerly known as Liana M. Bradford) vs. Missouri State Highway Patrol and Boone County, Missouri, Sheriff 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84739 

Articulable Suspicion Found Despite Racial Profiling 
“[T]he Constitution prohibits selective enforcement of the law based on considerations of race” and appellant initially came to a police officer’s attention because appellant was Black. But an investigatory stop is lawful when a police officer has reasonably articulable suspicion of criminal activity based on experience and observations of unusual behavior. That applied to a known drug offender avoiding police contact while exploring outside the residence of a drug dealer and making contradictory statements. A seizure of appellant’s person occurred when a police officer told appellant, “Don’t go anywhere.” But no custodial interrogation occurred, so no Miranda warning was due, when the police officer asked to search appellant and appellant replied that appellant possessed drug paraphernalia. A search incident to arrest requires no warrant, and evidence obtained was admissible.  
State of Missouri vs. Thomas Steve Higgs 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84161

Conservatorship Negates Exploitation 
Charging instrument argued that defendant committed financial exploitation of an elder by using undue influence to gain control of victim’s bank account and assets. But control of victim’s bank account and assets undisputedly came from defendant’s unopposed appointment as conservator. And the verdict director cited the defendant’s use of proceeds sale of victim’s motor vehicle, not mentioned in the charging instrument. Therefore, “the evidence was not sufficient to support the verdict, . . . the defendant was entitled to a judgment of acquittal, and the [S]tate [is] not entitled to proceed with a new trial.” Conviction reversed and remanded with an order to discharge defendant. 
State of Missouri vs. Lindsay Michelle Forbes 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84052

No Mistrial Required 
Appellant showed no particularized prejudice from circuit court’s denial of appellant’s motion to sever. On a charge of enticement, the elements include a purpose of engaging in sexual conduct, which the State showed with evidence that appellant bought victim a dress and had victim pose in it, which appellant’s citation to contrary evidence does not refute. Appellant did not show manifest injustice or miscarriage of justice in the circuit court’s failing to declare a mistrial over State’s evidence of appellant’s prior domestic assault and statutory rape convictions, nor of fathering eight children whose whereabouts he did not know; nor over State’s closing argument that “no other child should have to promise not to tell what [appellant] did to them[.]” Circuit court’s written judgment misnamed the offense of which appellant was convicted, which was a clerical error subject to correction by order nunc pro tunc, so the Court of Appeals remands the case for that purpose. 
STATE OF MISSOURI, Respondent vs. CLINTON M. BOYD, Appellant 
Missouri Court of Appeals, Southern District - SD37118

Conviction Under Old Statute Reversed 
An appellate court may conduct plain error review sua sponte. The State charged appellant under a statute that had been abrogated—not merely renumbered, transferred, or re-enacted—before the conduct was alleged to have occurred. The abrogated statute and the applicable statute require different factual findings for different levels of offense. “[N]o evidence ever proves an element of a criminal case until all 12 jurors believe it, and no inference ever is drawn in a criminal case until all 12 jurors draw it.” Trying that case was evident, obvious, and clear error, and sentencing appellant was a manifest injustice. Resentencing is not an option. Remanded with instructions to vacate judgment of conviction, and to dismiss unless the State files a motion for leave to file an amended information under the current statute within 30 days. 
STATE OF MISSOURI, Respondent vs. ANGELA M. PLIEMLING, Appellant 
Missouri Court of Appeals, Southern District - SD36831

Family

Guardian ad Litem Not Required 
Statute requires appointment of a guardian ad litem on allegations of abuse in pleadings, not on introduction of evidence; and reversal requires a showing of harm to the children, not harm to appellant; so appellant did not show any error in circuit court’s failing to appoint a guardian ad litem. Statute, specifying documentation required to continue child support into higher education, constitutes a defense that appellant waived by failure to raise it in circuit court. A judgment that lacks findings is subject to correction by a motion to amend, and failure to file such a motion waives any such error. In appellant’s brief, the theory for reversal must appear in the point relied on and not just in the argument section. 
Lacy Anne Craig vs. Cory Wayne Craig 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84571 

Appellate Courts Do Not Re-Weigh Evidence 
Whether to re-open the record for new evidence is within the circuit court’s discretion, so appellate courts review that ruling for abuse of discretion, and a record showing careful consideration negates any abuse of discretion. Appellant did not show that findings of fact on domestic violence were inadequate or that any prejudice resulted. Circuit court’s award of attorney fees stood on an application of statutory factors to the circuit court’s apportionment of fault for protracted litigation, on which the circuit court is an expert, and an appellate court will not re-weigh the evidence. Circuit court’s allocation of debt had support in its findings of fact, which had support in the evidence; and citation to appellant’s own evidence against the judgment has no analytical value. 
In Re the Marriage of: DANA LEA WASSON and JEREMY SHANE WASSON. DANA LEA WASSON, Petitioner/Appellant vs. JEREMY SHANE WASSON, Respondent/Respondent
Missouri Court of Appeals, Southern District - SD37034

Juvenile

Right to Confrontation Violated 
In critical stages of juvenile actions, constitutional rights to confront witnesses apply, and limiting appellant juvenile’s appearance to video at the certification hearing did not satisfy that requirement. COVID directives expressly preserve such constitutional rights, no findings of fact support any departure under any statute, and appearances in person by other parties undercut the need for remote appearance by appellant. Confrontation clause violations are presumptively prejudicial. Judgment vacated and remanded. 
In the Interest of: D.H. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109226

Orders of Protection

Order of Child Protection Renewed 
Circuit court renewed a child protection order. Appellant challenged judgment for lack of substantial evidence to support a finding, that the order’s expiration would endanger the child. Even if appellant were right, reversal would still not be necessary, because no such finding is necessary to the judgment. Statutes governing child protection statutes are clear as to the elements for an ex parte order and the elements for renewing a full order. “The former explicitly requires a finding of “[a]n immediate and present danger of domestic violence” and the latter clearly, plainly, and unambiguously does not. Judgment affirmed. 
WILLIAM C. WOODARD, Respondent vs. STEVEN W. CONDE, Appellant 
Missouri Court of Appeals, Southern District - SD37047

Post-Conviction

No Transcript, No Review 
On a motion to vacate or set aside an underlying criminal judgment, movant alleged that the circuit court did not adequately ensure that movant’s waiver of trial counsel was knowing and voluntary. That allegation requires transcripts from the underlying trial and the evidentiary hearing on the motion. Rules require movant to supply those transcripts but movant failed to do so. Dismissed.   
John J. Sullivan vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84361 

Third Party Interference Inapplicable to Unneeded Document 
Rule includes a form, which allows filing in forma pauperis, and includes an affidavit of inability to pay. In support of the affidavit, movant mistakenly thought he needed a certified copy of his Department of Corrections account statement, and procuring that statement took longer than the time to file the initial motion. The initial motion was therefore late, which waives all relief, with specified exceptions. Those exceptions include active interference of a third party. That exception contemplates third parties on whom an incarcerated person must rely to transmit the initial motion, which does not describe the production of a document unnecessary to the motion, which is all movant can show. Circuit court did not err in dismissing the motion.  
GABRIEL A. PULLIAM, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD37279

Workers' Compensation

Injury Arose Out of Employment 
Workers’ compensation statutes exclude from benefits any injury caused by something equally likely outside work. Claimant twisted a knee because twisting and turning was part of her job in a nursing home room, a “particularized environment” configured by the employer, while wearing the footgear directed by employer. Those circumstances did not occur outside of work, so the injury arose out of and in the course of employment. 
SYDNEY A. DURR, Appellant vs. CLARKS MOUNTAIN NURSING CENTER, AMERICARE SYSTEMS INC., and SAFETY NATIONAL CASUALTY COMPANY, Respondents
Missouri Court of Appeals, Southern District - SD37212