Case summaries for May 12 to May 18, 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.
No appeal from denial of new trial
Denial of a motion for new trial is not subject to appeal, but an appeal from denial of a motion for new trial is deemed an appeal from a judgment. A multifarious point preserves nothing for review, especially without a transcript, and ex gratia review would require advocacy that an appellate court must not do. When an appellate court cannot review for error, it cannot review for cumulative error. Appeal dismissed.
Aaron Roesch, Appellant, vs. Aaron Birch-Edmundson, Respondent.
Missouri Court of Appeals, Eastern District - ED111018
Change in law moots appeal
City ordinance required city clerk to forward complaints about police conduct, city clerk refused to forward appellant’s complaint as untimely, and city ordinance amendment eliminated the city clerk’s duty. The amendment merely changed the forum for complaints, and altered no vested right, so it did not constitute a retrospective law. No effective relief is available for a court to order, and no exception to the mootness doctrine applies, so the Court of Appeals dismisses the appeal.
Herbert Morrison, Appellant, vs. Karen Goodwin, City Clerk for the City of Florissant, Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED110776
Briefing violations require dismissal
Rigid requirements of appellate briefing are subject to relaxation “[i]n cases relating to children’s welfare,” if appellant’s brief complies enough to “give notice to th[e appellate c]ourt and to the other parties as to the issue presented on appeal.” The jurisdictional statement must show that law of appellate court jurisdiction applies to the facts of the ruling appealed. Statement of facts must be concise and fair. Points relied on must charge an erroneous ruling and show why it is reversible. Argument must restate and develop points relied on. The record on appeal must include all transcripts related to challenged rulings. Failure to comply with those rules, and failure to correct such deficiencies, leaves the court and adverse party without notice of appellant’s theory on appeal. Dismissed.
Heather (McCubbins) Pickett vs. Michael Bostwick
Missouri Court of Appeals, Western District - WD85528
No appeal from consent judgment
Statutes provide that a final judgment is subject to appeal by an aggrieved party. A consent judgment does not aggrieve any party to that judgment because it “it is not a judicial determination of rights, but a recital of an agreement.”
Pendragon Properties, LLC. vs. Latanya Haywood
Missouri Court of Appeals, Western District - WD85365
On motion to set aside default, denial was foreseeable
In underlying litigation, client experienced a default on liability, as to which the circuit court denied a motion to set aside; and attorney entered no appearance at a hearing on damages. That latter lapse was the subject of client’s action for malpractice. On attorney’s motion for summary judgment, attorneys cited the denial of the motion to set aside as an unforeseeable intervening cause of client’s damage. But the denial of a motion to set aside a default judgment is generally foreseeable, and was specifically in the underlying litigation, so defendant did not establish a break in the chain of causation. Client’s expert’s deposition testimony established damages beyond speculation. The Court of Appeals reverses summary judgment for attorney.
St. Louis Center for Aesthetic and Restorative Dentistry, et al., Appellants, vs. A. Thomas Dewoskin, et al., Respondents.
Missouri Court of Appeals, Eastern District - ED110598
Implied credibility determinations support partial award
Circuit court can believe or disbelieve all or any part of any evidence. In a negligence action for personal and property damage, plaintiff had the burden of proof and defendant had none, so a judgment awarding property damages only simply means that the circuit court did not find the evidence of personal damages persuasive. “[E]vidence never proves any element until the fact-finder says it does.”
CHARLOTTE WRIGHT, Plaintiff-Appellant v ARTURO MARRUFO ARMIJO, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD37445
Sunshine Law for quasi-public governmental entities discussed
Open Records statutes apply to any quasi-governmental body, meaning an entity for which the primary purpose is to contract with public governmental bodies. Contracting with public governmental bodies is not respondent’s primary purpose as shown by respondent’s declared purpose, governing structure, current and historical activity, and relationship with public governmental bodies. Existence of a contract does not, alone, establish that showing.
Aaron M. Malin vs. Missouri Association of Community Task Forces (d/b/a/ ACT Missouri)
Missouri Court of Appeals, Western District - WD85453
Jury waiver okay
Constitutional provisions protect the right to trial by jury, so a waiver of that right must be voluntary, knowing, and intelligent; as the circuit court’s colloquy and defense’s closing arguments showed it to be. Evidence supported a finding of guilt, including victim’s testimony and defendant’s admissions, and issues of credibility were for the circuit court to determine.
State of Missouri vs. Chukwuemeka U. Emmanuel
Missouri Court of Appeals, Western District - WD85165
Too many inferences for a conviction
Evidence suggesting that defendant lived at a mobile home, at some time around when somebody cultivated marijuana nearby, does not show that defendant cultivated the marijuana. “To first draw an inference that [d]efendant was living at the mobile home at the time of the search, and from that inference, draw an additional inference that it was [d]efendant who was growing the marijuana plants is simply too tenuous, improperly ‘building inference upon inference.’” Conviction reversed and remanded for acquittal and discharge.
STATE OF MISSOURI, Plaintiff-Respondent v. DANIEL A. BURPO, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37563
Unsworn statement is not substantial evidence
In an action to establish paternity, children’s guardian ad litem made unsworn recommendations, on which the circuit court relied for its findings of fact and resulting judgment. “Since the guardian was neither sworn nor subject to cross-examination, her statements did not constitute evidence and should have had no bearing on the custody decision.” Remanded for an evidentiary hearing on custody.
M.M., Respondent, v. C.S., Appellant.
Missouri Court of Appeals, Eastern District - ED110317
Holidays unaddressed are plain error
In an action for dissolution of marriage, rule requires the judgment to address custody of children, including during holidays. Holidays include Martin Luther King Jr. Day, and Presidents’ Day, but the judgment omitted any provision for custody on those days. That omission constitutes plain error, so the Court of Appeals reverses the judgment, and remands it to modify the judgment’s custody provisions as needed.
Brian Scott Lewis, Respondent, vs. Sara Marie (Hartsock) Lewis, Appellant.
Missouri Court of Appeals, Eastern District - ED110596
Findings sufficient for parenting plan
In an action for dissolution of marriage, statutes and rules require proposed parenting plans from the parties. No findings of fact regarding such plans, or meaningful contact with one party, are necessary when circuit court makes detailed findings of fact supporting sole physical and legal custody in respondent. Findings that appellant threatened respondent with death, and that visitation with appellant negatively affected children, supported that award of sole custody in respondent.
S.C.J.M., and B.J.J.M., By Their Next Friend, S.D.M., and S.D.M., Individually, Appellants, vs. B.J.N.S., Respondent.
Missouri Court of Appeals, Eastern District - ED110409
Contempt over circuit clerk limited
Courts have inherent authority to enforce the administration of justice, through actions for contempt, but that authority does not extend to “control the details of the operation of [the circuit clerk’s] office.” Statutes provide State payment to counties for confinement of criminal defendants pending trial from Department of Corrections upon circuit court’s certification of billing from circuit clerk. The execution of the circuit clerk’s billing duties does not relate closely enough to the administration of justice for enforcement through an action for contempt, especially when less drastic alternatives are available. The Supreme Court of Missouri makes permanent its preliminary writ of prohibition, barring circuit court from anything further in its action for contempt against the circuit clerk, other than dismissing the action for contempt.
State ex rel. Betty Grooms, Relator, vs. The Honorable Steven A. Privette, Respondent.
Supreme Court of Missouri - SC99794
Attorney fee and injunction reversed
Rule requires prosecution of ordinance violations by information alleging the “essential” facts, but defects have no consequence without prejudice to the defense, which appellant did not show. On charges of having junked vehicles on property, photographs supported a finding of guilty. City ordinance allowed an award for attorney fees when seeking abatement of a nuisance, but the city abandoned that remedy, so no award of attorney fees was authorized. City ordinance also authorized injunction of a nuisance, but sentencing was too late for the city to raise that remedy, and the matter was not tried by consent.
City of Skidmore, Missouri vs. Rickie L. Stanton
Missouri Court of Appeals, Western District - WD85487
Post-judgment interest starts with apportionment
As to error charged in the admission of evidence, defendant abandoned its objections to admission of evidence when it made its objection too late, raised an objection different from the objection raised on appeal, or stated, “No objection;” and plain error does not revive those objections. In a products liability action, statutes allow a comparative fault instruction, and the absence of an approved instruction requires the circuit court to use a non-approved instruction. But defendant’s non-approved instruction merely recited the general and indefinite terms of that statute, without reference to the evidence, and therefore constituted a roving commission. The circuit court did not err in refusing to submit defendant’s improper instruction without regard to whether or how plaintiffs objected. Post-judgment interest runs from the date of final judgment, which does not occur until circuit court apportions damages, so the judgment on remand apportioning damages starts the accrual of post-judgment interest.
Vicky Church, Sarah Austin and Jacob Church, on behalf of all Beneficiaries vs. CNH Industrial America, LLC
Missouri Court of Appeals, Western District - WD85103
Extension granted too late
Rule sets a deadline for filing an amended motion, within which the movant may file an amended motion or a motion for an extension of time to file an amended motion. The circuit court’s authority to grant the motion for extension of time expires on the deadline, so an extension granted after the deadline is null, and an amended motion filed after the deadline is untimely. An untimely amended motion raises a presumption of abandonment by appointed post-conviction counsel, into which the circuit court must independently inquire. Without making that inquiry, and after untimely granting two extensions, the circuit court ruled on an untimely filed amended motion in a “well-considered” final judgment. But, because no inquiry occurred, the Court of Appeals reverses and remands the case for that inquiry.
Levi D. Lauck, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED110619
Backdated extension null
Rule sets a deadline for filing an amended motion, and allows extensions of time to file the amended motion, but only if the circuit court grants a motion for an extension within the deadline. The grant of a motion for extension of time after the deadline, even when backdated within the deadline, is null. The filing of the amended motion was untimely, which raises a presumption of abandonment by appointed post-conviction counsel and requires the circuit court to independently inquire as to abandonment. No such inquiry appears in the record, so the Court of Appeals reverses the judgment, and remands the matter to circuit court to conduct the inquiry.
Walter Nickels, Movant/Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED110571
No action for post-termination retaliation
After appellant’s claims for workers’ compensation and wrongful discharge, respondent refused to re-hire appellant. Appellant filed an action under statutes providing that an employer is liable for discrimination by an “employer” based on assertion of workers’ compensation rights by an “employee.” Those terms are statutorily defined to mean a current employment relationship and strict construction resolves any ambiguity. Appellant was not in respondent’s employ, and therefore not strictly an “employee,” when the refusal occurred. Therefore, the Supreme Court of Missouri did not err in entering summary judgment for respondent.
John Lisle, Appellant, vs. Meyer Electric Co., Inc., Respondent.
Supreme Court of Missouri - SC99670