Case summaries for Apr. 30 - May 6, 2021

Appellate | Contract | Criminal | Employment | Family | Probate | Real Estate

Appellate

Appellant Must Address Unfavorable Evidence
When appellant challenges a ruling as unsupported by substantial evidence, or against the weight of the evidence, appellant must address the evidence favoring the ruling, or appellant cannot prevail. Therefore, appellant cannot show that circuit court’s property division was unfair. And appellant did not allege any unfairness in classification of property on which the circuit court based its property division. 
In Re The Marriage of: JANETT LEE MORGAN and JOHN WAYNE MORGAN JANETT LEE MORGAN, Petitioner-Respondent v. JOHN WAYNE MORGAN, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD36815

Contract

Statute of Limitations Barred Claim for Implied Contract
Statute of limitations on plaintiff’s implied contract claim was five years. That period started when defendant, upon delivery and inspection of plaintiff’s car, refused to sell plaintiff’s car on consignment; because that event put a reasonable person on notice that defendant would not perform, even assuming that an implied contract existed. Circuit court’s findings, negating elements of plaintiff’s claim for fraud, had support in the record—including plaintiff’s own testimony.
Richard D. Schaffer vs. Mickey J. Howard
(Overview Summary)
Missouri Court of Appeals, Western District - WD83380

Criminal

Probation Revocation Hearing Prohibited
Statutes extended circuit court authority to revoke relator’s probation beyond probation’s expiration on conditions that include “every reasonable effort ... to notify the probationer and to conduct the hearing” before the probation expires. That requires an affirmative manifestation of the circuit court’s intent to conduct a revocation hearing. Suspending the probation, and scheduling a review hearing, do not constitute such efforts. Court of Appeals makes permanent its preliminary writ in prohibition.
State of Missouri ex rel. Tamy Barnes vs. The Honorable Mark B. Pilley, Associate Circuit Judge, Benton County, 30th Judicial Circuit, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD84249

One Car Chase Supports Two Charges
Double jeopardy does not bar separate convictions for resisting arrest by fleeing and resisting arrest by physical force because “each of [defendant]’s separate acts of resistance is a separate unit of prosecution [.]” The charging instrument’s allegations, and State’s evidence, described misdemeanor resisting arrest; so Court of Appeals reverses felony conviction, and associated armed criminal action conviction, and remands for sentencing as a misdemeanor.
State of Missouri vs. Khamis D. Pitiya
(Overview Summary)
Missouri Court of Appeals, Western District - WD83502

Forcible Compulsion, Reasonable Resistance, and Voluntary Incapacity Discussed
Charging instrument cited the applicable statute and alleged relevant facts with specificity for the preparation of a defense. Circumstantial evidence established a time frame when the events occurred as alleged. At the time of the events alleged, statutes defining forcible compulsion were silent on voluntary intoxication, and expressly “include[ed]” involuntary intoxication, but including the latter did not exclude the former because “including” is expansive and not limiting. The statutes focus on the incapacity to consent and not on how such incapacity came about. The element of overcoming reasonable resistance is satisfied with evidence of incapacity. Video tape was admissible on a foundation of evidence that the tape accurately represents what the tape “purports to portray [,]” and evidence on the chain of custody was enough for the circuit court to conclude that the tape was unaltered.
State of Missouri, Respondent, v. Alvin L. Hunter, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108952

Forcible Compulsion, Reasonable Resistance, and Voluntary Incapacity Discussed
Charging instrument cited the applicable statute and alleged relevant facts with specificity for the preparation of a defense. Circumstantial evidence established a time frame when the events occurred as alleged. At the time of the events alleged, statutes defining forcible compulsion were silent on voluntary intoxication, and expressly “include[ed]” involuntary intoxication, but including the latter did not exclude the former because “including” is expansive and not limiting. The statutes focus on the incapacity to consent and not on how such incapacity came about. The element of overcoming reasonable resistance is satisfied with evidence of incapacity. Video tape was admissible on a foundation of evidence that the tape accurately represents what the tape “purports to portray [,]” and evidence on the chain of custody was enough for the circuit court to conclude that the tape was unaltered.
State of Missouri, Respondent, v. Charles K. King, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108951

Employment

Attorney Fees Awarded, Other Litigation Expenses Questioned
In an action against supervisor, and against supervisor’s employer solely under respondeat superior for supervisor’s conduct, a verdict against the employer is inconsistent with a verdict in favor of the supervisor. But the evidence supported a finding that supervisor’s colleagues also caused plaintiff’s injury, so a verdict for supervisor was not inconsistent with a verdict against employer. In an action under the Missouri Human Rights Act, retaliation for making a good-faith complaint of discrimination is unlawful, even if the discrimination did not occur. Supervisor’s sexist, racist, and agist remarks supported a finding of good faith in plaintiff’s complaint, and that such complaint was a contributing factor to plaintiff’s discharge. Considering the detailed evidence required, and the reductions from the award requested, the circuit court did not err in awarding attorney fees. Remanded to determine other allowable litigation expenses and attorney fees on appeal.
Lynne Harrison, Respondent, v. Harris-Stowe State University, Appellant, and Emmanuel Lalande and Tammy Bramwell-Kimbrough, Defendants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109012

Family

Unfitness Shown
Under statutes setting forth the grounds for termination of parental rights, incarceration may result in the specific conditions that demonstrate unfitness for parenthood in the reasonably foreseeable future; especially when the parent has a criminal history, is incarcerated for violating probation, and further criminal charges pending. Circuit court’s findings found further support in evidence that parent had a history of substance abuse and addiction, had no plan for a stable household, and had no bond with child.
IN THE INTEREST OF N.D.B., MINOR BUTLER COUNTY JUVENILE OFFICE, Respondent vs. J.M.M, Appellant
Missouri Court of Appeals, Southern District - SD36838

Probate

Statutory Accounting May Be Due
Statute of frauds conditions enforcement of any contract of more than a year’s duration, and of any contract to sell or to lease real property, on the existence of a writing unless partial performance has occurred. But plaintiff did not allege any sale or lease of real property, merely a conveyance of interest in a partnership; the partnership was terminable at will, so the conveyance could occur within a year; and plaintiff showed that he performed his part of the deal. Therefore, the statute of frauds did not apply. Evidence that the recipient of a substantial benefit had a fiduciary or confidential relationship with the giver, and actively procured the execution of a document providing the benefit, raises a presumption of undue influence. But the circuit court did not find that the beneficiary actively procured the execution of a document providing the benefit and an appellate court defers to that finding. The circuit’s finding on decedent’s mental health was not against the weight of the evidence. Missouri’s Uniform Partnership Law presumes that assets obtained with partnership funds are partnership assets, but decedent acquired disputed assets with her share of partnership distribution, so disputed assets were personal property in which decedent could name a joint owner other than her partner. As to the American Rule on attorney fees, the movant must prevail under any exception, and appellant did not show that the collateral litigation exception applied. Appellant did not show that denying costs was an abuse of discretion. Appellant petitioned circuit court for an accounting under statute, but circuit court erred in applying the standard for an equitable accounting, so the Court of Appeals remands for further proceedings. Points relied on that do not give notice of appellant’s challenge to circuit court’s rulings—that is, whether such challenges are legally based or evidence-based—preserved nothing for review.
Jerry L. Wilson vs. Wilda L. Trusley
(Overview Summary)
Missouri Court of Appeals, Western District - WD83111 and WD83137

Real Estate

Five-Year Statute of Limitations Applied
Statutes of limitation for filing contract actions generally allow five years and specifically allow ten years on written promises to pay money, meaning an unconditional acknowledgement of debt. Residential lease charged tenants for repairs, maintenance, and cleaning, if they failed to use customary diligence in care of the property. That provision conditioned any charge to tenants on liability of tenants, so the five-year statute applied.
J&M Securities LLC, Appellant, v. Hani S. Aziz and Sanaa A. Kahalah-Aziz, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109169