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Case summaries for May 5 - May 11, 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 | Civil | Criminal | Employment | Family | Insurance | Personal Injury | Real Estate


No moral turpitude in third DWI 
Statutes allow a licensing agency to discipline its licensee for committing any crime of moral turpitude. Determining cause for discipline generally happens in an action before the Administrative Hearing Commission, but statutes provide a specific exception from that procedure, upon receipt of certified records showing a finding of guilt. Appellant agency received such records, finding respondent licensee guilty of driving while intoxicated for a third time, brought its own internal action, and imposed discipline. Circuit court reversed and remanded to the agency for dismissal of its internal action. Circuit court’s remand to an agency, for lack of substantial and competent evidence or insufficient evidence, was without prejudice on its face but effectively terminated the action as pleaded, which effectively makes the judgment a dismissal with prejudice and subject to appeal. The Court of Appeal affirms the circuit court’s judgment because “DWI is not an offense involving moral turpitude [.]” 
David Kubiak vs. Missouri State Board of Nursing 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85529


Summary judgment response discussed 
In response to a motion for summary judgment, a general denial upon information and belief does not raise a genuine dispute of fact, nor does reference to an exhibit not attached to the response; circuit court did not err in deeming those facts admitted and entering summary judgment accordingly. An argument for dismissal of decedent instead of substitution of parties, not raised in circuit court, is waived. Lease provided for attorney fees from tenant, but the only tenant was decedent, and other parties were merely residents.  
Yes Chancellor Farms, LLC, Plaintiff/Respondent, v. Vicki Merkel, et al., Defendants/Appellants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111217


One car chase, two defendants 
Statutes provide accessory liability for anyone with the required mental state for an offense charged, do not require any charging instrument to state whether respondent is liable as a principle or accessory, and even allow conviction on one when charged as the other. Therefore, a finding of guilt against co-defendant, based on operating a motor vehicle, did not require the dismissal of charges against respondent of identical charges based on operation of a motor vehicle. “[I]t is possible that [co-defendant] pled guilty on the basis of having the required ‘culpable mental state’ while also relying on [respondent]’s conduct in actually driving the vehicle [.]” Respondent showed no violation of substantive due process. Circuit court’s judgment of dismissal reversed. 
State of Missouri, Appellant, vs. Jesse E. Callaway, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110964

First-degree harassment found 
The elements of harassment in the first degree include conduct that is intended to, and does, frighten victim. The State proved that charge with evidence that appellant displayed a replica firearm, told victim that it was real, told victim that appellant would shoot victim if appellant told anyone, which victim believed. Victim’s testimony alone supported a finding of fright, and an appellate court defers to the circuit court’s findings. Therefore, if appellant had been an adult, appellant would be guilty of a criminal offense. Those conclusions support a judgment placing appellant on probation pending treatment and counseling. 
In the Interest of: T.P. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110623

Jury selection system okay 
Police had probable cause to arrest appellant without a warrant when witnesses said that appellant had attempted to burn victim’s residence in the past, had quarreled with victim recently, and was the last known visitor to the crime scene before the crime. Whether appellant timely received an adequate Miranda warning was a matter of credibility on which appellate courts defer to the circuit court. The totality of circumstances supported a finding that appellant’s waiver of rights to silence and counsel were voluntary and knowing. Constitutional provisions protect criminal defendants from a jury selection procedure that will “systematically exclude distinctive groups in the community [.]” To show a violation of those provisions, appellant offered statistical data on the zip codes from which juror questionnaires returned as undeliverable, which the State refuted with evidence undermining the statistical assumptions supporting appellant’s evidence, and with evidence of continuous updates to the jury pool information. The circuit court did not abuse its discretion in admitting evidence about a victim, limited to logical and legally relevant matters, and the inclusion in such matters of uncharged crimes did not require their exclusion. Appellant’s narrative offer of proof preserved issues mentioned in the narrative, but no others, even as to cross-examination of the same witness. Appellant did not show error in exclusion related to that witness’s employment history, presence on an exclusionary list, and social post, that were unrelated in time to the charges, confusing to a jury, and non-prejudicial in the face of overwhelming evidence of guilt. Appellant’s evidence supported a range of times as to when the crimes occurred, and that appellant was absent from the crime scene for only part of that range, so no alibi instruction was due. And even if the alibi instruction was due, the jury heard evidence and argument on the alibi defense but convicted appellant nonetheless, which negates prejudice.  
State of Missouri, Respondent, vs. Eric Lawson, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109743

A knowing attack causes a knowing injury 
The elements of domestic violence in the second degree include a knowing mental state. Knowing means aware that a result is practically certain. It is practically certain that the victim of a stabbing will incur defensive wounds to the hand. Therefore, when appellant knowingly stabbed victim in the neck and victim defended himself by blocking with his hands, appellant also knowingly caused the injury to victim’s hand.  
State of Missouri vs. Roger D. Iman 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85141


Claims stated on non-compete clauses   
A petition states a claim for relief when it alleges facts that, with reasonable inferences arising from those allegations, support relief on any theory. Employer petitioners stated a claim for breach of a contract provision to discourage no customer of petitioners to cease doing business with petitioners by describing a pitch that defendant employee made for defendant’s own company. Petitioner corporations stated a claim for breach of fiduciary duty by alleging that defendant officers misused confidential information in competition with petitioners. Petitioners stated a claim for breach of loyalty with fact-specific allegations against defendants. Petitioners stated a claim for tortious interference with a business expectancy by alleging that defendants solicited petitioners’ current customers when such solicitations protected no existing interest of defendants. Petitioners stated a claim for unjust enrichment by alleging the various breaches of contractual and other duties alleged in other counts. Petitioners stated a claim for injunctive relief by alleging defendants’ continuing violations. Petitioners stated a claim for the vicarious liability of entities for which defendants worked by alleging principle-agent relationships.  
CIBC Bank USA and CIBC National Trust Company, Appellants, vs. Christopher William, et al., Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110284


Parental rights terminated over meth 
Evidence supporting a finding that appellant neglects children included evidence of inadequate housing and consumption of methamphetamine in a child’s presence. Evidence supporting a finding that appellant had an untreatable dependency on methamphetamine included drug screenings, either skipped or failed; treatment programs incomplete or failed; and multiple relapses in use. That evidence, and evidence of failures to offer financial support while employed and to participate in rehabilitative services, supported a finding that termination of appellant’s parental rights was in children’s best interests.    
In the Interest of: E.R.M.S., T.M.D.S., and Z.W.D.S. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111003


Intervention barred 
Rule provides intervention as a matter of right in accordance with statutes. Statute, governing “any” agreement limiting recovery on a claim to specified assets, provides a right of intervention for an insurer in an unliquidated claim—but only a claim for injuries to the person. Injuries to property only were the subject of relator’s claim, so no right to intervene arose under statute, or rule. The circuit court abused its discretion in granting intervention, and mandamus corrects the abuse of discretion. The Court of Appeals makes its preliminary writ permanent.  
State of Missouri, ex rel., Dale J. Meller and Elaine Meller, and Ashley Farm Services, LLC vs. The Honorable Jon E. Beetem, Judge of the Circuit Court of Cole County, Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85870

No damages from insurance broker’s default 
An insurance broker represents the insured in procuring insurance from an insurer. In an action for personal injuries, broker promised to alert insurer to insured’s defense, but “through a variety of missteps[,]” insurers defaulted in circuit court. The parties resolved the default, through a settlement for insurance proceeds only, which protected insured from any liability. Because insured had no liability—not even litigation expenses—from those events, insured suffered no damages. Damages are an element in any claim for negligence, breach of fiduciary duty, and breach of loyalty. Those claims were the theories of recovery that insured brought against broker, on which circuit court entered summary judgment for the broker, and which the Court of Appeals affirms.  
Knockerball Midmo, LLC vs. McGowan & Company, INC. d/b/a McGowan Excess & Casualty 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85458

Personal Injury

Maintenance on city water is a proprietary function 
Plaintiffs’ action alleged that city’s maintenance and repair of water tanks, through a contractor, damaged plaintiffs. Official immunity protects from suit any governmental official acting pursuant to discretion, and not pursuant to a ministerial duty. Defendant city employee exercised discretion when supervising contractor’s work on water tanks, including whether to notify residents of the project’s start date, so official immunity required dismissal of city employee from plaintiffs’ action. Statutes preserve sovereign immunity for the State and its political subdivisions in governmental functions but not in proprietary functions. “Proprietary functions ‘are those performed by the municipality for profit or for the special benefit of the municipality’” and include related maintenance. Defendant city’s summary judgment motion failed to establish that city’s sale of water for profit to citizens and others was governmental, and not proprietary, so summary judgment for city is reversed. Rule on relation back deems timely an amendment, even if made after the five-year statute of limitations on negligence has run, but only on timely notice—actual, deemed, or imputed. No such notice supported plaintiffs’ motion to substitute unknown John Doe with named contractor’s employee. But all defendants not immune from suit remain subject to a claim for wrongful death, which began to run on death of decedent plaintiff, so denying leave to add that claim was an abuse of discretion.  
Vicki Shad-Schaefer, Individually, and Vicki Shade-Schaefer on Behalf of the Estate of Wayne Schaefer, Christopher Schaefer, and Stephanie Schaefer, Appellants, vs. City of Eureka, Robert Wade, and Richard Green, Appellants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110581

Real Estate

Enforcement of restrictive covenant waived 
Circuit court did not err when entering into evidence a photograph as to which a witness testified that it fairly and accurately depicted the subject of the photograph. Restrictive covenant banning detached buildings did not apply to an attached structure and, even if its language were ambiguous, construction disfavors restrictive covenants and favors free use of land. Earlier acquiescence to other structures supported a finding of waiver of related provisions. Judicial admissions require a finding of liability for annual assessments and interest as admitted. 
Sharon Dash, Bill Blacksher, and Cynthia Sowell, as Trustees of Riverwood Estates Homeowners Association, Appellants, vs. Ada Taylor, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110838