Case summaries for May 14 - May 20, 2021

Administrative | ADR | Civil | Criminal | Evidence | Family | Post-Conviction | Real Estate

Administrative

Medical Marijuana Data Discoverable
Constitution requires confidentiality for medical marijuana data but provides exception including appeals from the denial of a cultivation license. A cultivation license depends, not only on the applicant’s qualifications, but the qualifications of competing applicants. Therefore, that data sought was subject to discovery as provided in the Administrative Hearing Commission’s procedural rule. The circuit court did not err in quashing its preliminary order in prohibition. “When the circuit court issues a preliminary order but later denies a permanent writ of prohibition, ‘the proper remedy is an appeal.’”
State of Missouri ex rel. Missouri Department of Health and Senior Services vs. Renee T. Slusher, Commissioner, Administrative Hearing Commission
(Overview Summary)
Missouri Court of Appeals, Western District - WD84247

ADR

Illusory Consideration Cannot Support Agreement to Arbitrate
An employee handbook may constitute the terms of a contract like any other document, which may include an arbitration agreement, if it manifests the elements of a contract including consideration. Similarly, an agreement to arbitrate may delegate disputes on arbitrability to the arbitrator, and may do so by incorporation of professional association rules that include delegation, if that provision is supported by sufficient consideration. Delegation of arbitrability is not presumed. Like any interpretation of contract, the circuit court’s interpretation of a delegation provision’s validity is subject to appellate review de novo. When the only consideration is mutual promises—a bilateral contract—neither party is bound unless all parties are bound. When one party may unilaterally change its promises at will, consideration is illusory, which describes the promises in appellant’s employee handbook. The handbook’s promises to respondent were illusory, so an arbitration agreement based on the handbook was unenforceable, as was the arbitration’s delegation clause. As an additional and antecedent agreement, a delegation clause is subject to challenge only specifically and separately from any challenge to the arbitration agreement as a whole, and respondent’s challenge to the delegation provision was sufficient separately directed to preserve the issue.
Jacqueline Harris, Respondent, v. Volt Management Corporation et al., Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109162

Civil

Waiver and Law of the Case Render Appeal Frivolous
The law of the case doctrine generally bars appellate review of any legal issue or any factual dispute if an appellate court has already determined that matter, explicitly or implicitly, or if appellant could have raised the matter in appellate court. Law of the case barred all arguments but one, which appellant waived by failing to raise it in circuit court. “We conclude that [the] appeal is frivolous; for, there is not one argument that [appellant] has submitted on this appeal that was not barred by the law of the case doctrine or otherwise waived due to [appellant]’s failure to present any evidence to the circuit court below as to the willfulness of his contumacious conduct [.]” Remanded to determine attorney fees award.  
Victoria L. Frawley vs. Matthew J. Frawley
(Overview Summary)
Missouri Court of Appeals, Western District - WD84025

Criminal

Case.Net Provided Notice on Detainer
“A detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.” Under the Interstate Agreement on Detainers, the elements of a prisoner’s claim for disposition of a detainer include the existence of a detainer, which prisoner showed with a document, signed by his facility’s warden and a records clerk, stating that the facility had a detainer on file. The Agreement also requires notice to the circuit court and prosecuting attorney who filed the detainer. The running of 180 days to dispose of the detainer starts when the prosecuting attorney who filed the detainer receives notice, which is complete on electronic transmission, by rule. Prisoner mailed pleadings to circuit clerk only, but “Case.net’s eNotice History shows when [the prosecuting attorney] received an eNotice” that the circuit clerk had received and filed the pleadings, from which 180 days elapsed without trial on the detainer, so circuit court did not err in dismissing the criminal charge that was the subject of the detainer.
State of Missouri vs. Loren Burhop, Jr.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83735

Case.Net Provided Notice on Detainer
“A detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency or to notify the agency when release of the prisoner is imminent.” Under the Interstate Agreement on Detainers, the elements of a prisoner’s claim for disposition of a detainer include the existence of a detainer, which prisoner showed with a document signed by his facility’s warden, authorizing transfer of the prisoner for trial, implying that the recipient had filed a detainer, and the State’s incomplete record did not refute that implication. The Agreement also requires notice to the circuit court and prosecuting attorney who filed the detainer. The running of 180 days to dispose of the detainer starts when the prosecuting attorney who filed the detainer receives notice, which is complete on electronic transmission, by rule. Prisoner mailed pleadings to circuit clerk only, but “Case.net’s eNotice History shows when [the prosecuting attorney] received an eNotice” that the circuit clerk had received and filed the pleadings, from which 180 days elapsed without trial on the detainer, so circuit court did not err in dismissing the criminal charge that was the subject of the detainer.
State of Missouri vs. Anthony Stevenson
(Overview Summary)
Missouri Court of Appeals, Western District - WD83734

Evidence

Lay Opinion and Preservation Discussed
A lay witness may testify to “natural inferences from observed conditions or occurrences or the impression made ... by a number of connected facts whose detail cannot be placed before the jury.” The jury had before it a video recording of the interview on which a lay witness testified that defendant had no mental illness, but the defense did not preserve an objection to the foundation for a lay opinion, because it objected to the foundation for an expert opinion only. Appellant showed no plain error because other evidence showed deliberation. Without an offer of proof, appellant cannot show error in the exclusion of evidence, and the exclusion of cumulative evidence is harmless.  
State of Missouri vs. Larry D. Ratliff
(Overview Summary)
Missouri Court of Appeals, Western District - WD83435

Family

Pre-Nuptial Agreement Valid
Statute provides that marital property excludes, and separate property includes, such property as the parties to an antenuptial agreement provide. “A separation agreement is unconscionable when the inequality [is] so strong, gross, and manifest that it must be impossible to state it to one with common sense without producing an exclamation at the inequality of it.” The record supports a finding that disclosure of assets to claimant was full, and claimant’s non-disclosure is irrelevant. Receiving a revised agreement, the provisions of which the parties had thoroughly discussed, shortly before the wedding, did not show that the time for review was insufficient, when the wedding was in circuit court, and was easily rescheduled. The record supported a finding that claimant had adequate time to consult with counsel. Disparity in distribution did not make the agreement substantively unconscionable.
William J. Penrod, Respondent, v. Karen D. Penrod, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109069

Post-Conviction

Abandonment Not Presumed
After the late filing of an amended motion, counsel filed an unsworn motion to deem the late motion timely because the tardiness was attributable to “counsel’s high caseload and [counsel’s] desire to give Movant’s case the attention it deserved [.]” The circuit court granted the extension after the time for doing so had passed, and an inquiry into abandonment was due but did not occur. The late filing raised a presumption of abandonment but ruling on the amended motion’s merits does not raise a presumption that the circuit court found abandonment. Remanded for an inquiry into abandonment, which may be informal, but must be more than rubber-stamping the motion, must include any response of movant to counsel’s allegations, and must include a record sufficient for appellate review.
Steven Earl, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109213

No Prejudice Shown
The absence of an objection to double hearsay testimony might show sub-standard performance by trial counsel. But a claim of ineffective counsel requires proof of prejudice to a degree that was outcome determinative. The testimony did not state that movant committed the conduct alleged, and “ample” other evidence supported a finding of guilt, so movant did not show that the absence of an objection was outcome determinative.
Travis James Fowler, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108902

Notice of Appeal Too Late
Rule allows the State or movant to file an appeal out of time by special order of an appellate court, but movant did not do so, so the Court of Appeals dismisses movant’s appeal.
Lamont Campbell, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108624

Real Estate

Restrictive Covenants Revoked
Appellants’ evidence of land covered by restrictive covenants was vague, and described land down to the quarter section only, so appellants did not sufficiently identify which land was subject to the restrictions. At most, appellants showed that the covenants applied to respondents’ land only, so respondents’ revocation of the covenants constituted unanimous consent of all owners of all land affected by the covenants. Appellants did not show that the covenants were intended to benefit anyone other than owners of land covered by the covenants.
IRVIN R. STACK and KATHY G. STACK, Appellants vs. J & A OUTDOORS, LLC, Respondent
Missouri Court of Appeals, Southern District - SD36793