Case summaries for May 19 - May 25, 2023

Civil | Criminal | DWI | Employment Security | Evidence | Family | Insurance | Juvenile | Post-Conviction | Real Estate

Civil

Contempt judgment final when enforced   
Appeal from a circuit court’s judgment of contempt depends on whether the circuit court orders a remedy or orders conditions for the contemnor to purge themselves of contempt. Compliance with purge conditions avoids a remedy and moots an appeal. Remedies include fines, incarceration, and statutory remedies. Statutory remedies for contempt of a custody order include compensatory custodial time and costs of therapy to re-establish parent-child relationship. The contempt judgment was final on enforcement of the remedy, which was continuation of custody already occurring, making the judgment final when issued. Appellant’s notice of appeal was too late after that date, so the Court of Appeals dismisses the appeal.   
Jessica Lynne Johnson, n/k/a Jessica L. Gould vs. Isaiah Ben Johnson  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85534

Petition failed to state personal jurisdiction   
On a motion to dismiss for lack of personal jurisdiction, plaintiff has the burden of proof. The parties may support their allegations with matters outside the record by affidavit or at an evidentiary hearing, which “does not convert the motion to dismiss into a motion for summary judgment as ‘the trial court's inquiry is limited to an examination of the petition on its face and the supporting affidavits to determine the limited question of personal jurisdiction.’” Missouri’s long-arm statute provides that personal jurisdiction of Missouri courts attaches to a foreign corporation that commits a tortious act in Missouri. On a claim for injurious falsehood by written communication, the petition must reproduce the communication verbatim, which plaintiff failed to do. On a claim for tortious interference with contract or for tortious interference with business expectancy, the elements include an absence of justification. When “based upon an alleged defamation, if a plaintiff's defamation claim fails, the tortious interference claim must also fail because the plaintiff cannot establish an absence of justification as a matter of law.”   
Creative Compounds, LLC, Appellant, vs. Thermolife International, LLC, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111095

Criminal

Lifetime registration continues  
Missouri statutes governing sex offender registration require registration for anyone ever required to register as a sex offender under federal statutes. Federal statutes and Missouri statutes limit their registration requirements to terms of years, except that Missouri sets no limit on registration requirements provided by federal law. Federal law required appellant to register, so the circuit court’s judgment denied appellant’s removal from the registry, and the Court of Appeals affirms that judgment.    
Jordan Wood vs. Criminal Records Repository, Et al.  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85024

DWI

U.S. park ranger was an arresting officer  
Driver appealed from the Director of Revenue’s suspension of driver’s license, for refusing a breath test, to circuit court. Under the Implied Consent Law, the elements that the Director must prove in circuit court include probable cause for a DWI known to the “arresting officer.” Arresting officers include a United States park ranger and no delegation of authority from the Director is necessary. The criminal offenses eventually charged are irrelevant, as the Director’s standard Alcohol Intoxication Report form shows, and the form does not conflict with the statutes. Vacated and remanded for findings of fact on the elements that Director must show on the record already made.   
CHRIS WOOD, Petitioner-Respondent v. DIRECTOR OF REVENUE, Respondent-Appellant  
Missouri Court of Appeals, Southern District - SD37261

Employment Security

“Mishandled” procedure shows good cause for failure to appear  
The Division of Employment Security sua sponte alleged an overpayment of benefits to appellant. In appellant’s administrative appeal, failure to appear at an evidentiary hearing was cause for dismissal, but the dismissal was subject to being set aside for good cause. Good cause includes attempts to make the scheduled appearance. Such attempts were thwarted by the Division’s confused scheduling and notices, non-functioning passcodes, and the barring of evidence. “[T]his case was mishandled at every turn by the administrative agency” in that “the many procedural problems he incurred were the responsibility of the Division and he made affirmative efforts to appear at his hearings.” Defects in appellant’s brief do not prevent the Court of Appeals from understanding appellant’s challenges. Reversed and remanded for a hearing on the merits.  
Timothy W. Johnes vs. Division of Employment Security  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85570

Evidence

Parol evidence irrelevant without contract 
The parties drafted a memorandum of understanding regarding a business and the land on which its building stood. In an action for specific performance, the statute of frauds barred enforcement, and plaintiff did not offer the clear and convincing evidence necessary for equitable relief from the statute’s bar. Plaintiff alleged that the parties agreed to payment of the purchase price in part from the business’s assets and offered parol evidence of that agreement, which the circuit court excluded. Plaintiff could show no prejudice from that ruling because the circuit court found that no such agreement existed, with or without the excluded parol evidence; and, even if it did, plaintiff had not paid the purchase price.  Because the circuit court found no sale of any part of the business, a transfer of the business to a third person was not a fraudulent transfer.  
CHARANJIT SINGH, Plaintiff-Appellant v. LUCKY'S TRAVEL CENTER, LLC, MANJINDER SINGH, DAVINDERPAL SINGH, SUKHVIR KAUR, KL & SG, LLC, d/b/a LUCKY'S TRAVEL CENTER, KULDIP SINGH LUBANA, and SUNILPURI GOSWAMI, Defendants-Respondents 
Missouri Court of Appeals, Southern District - SD37729

No offer of proof, no review 
In a criminal action based on allegations of sexual contact with a child, the State offered a video interview with the child victim, and testimony from the interviewer. The State also filed a motion in limine to exclude testimony from defendant’s expert, critiquing the interview technique, which the circuit court granted. Appellant’s failure to make an offer of proof preserved nothing for review.  
STATE OF MISSOURI, Plaintiff-Respondent v. JERRY R. YOAKUM, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37607

Family

Remarriage terminates maintenance  
In an action for dissolution of marriage, the parties executed a property settlement agreement, which the circuit court incorporated into its judgment, obligating appellant to pay maintenance to respondent. Appellant filed a motion to modify maintenance, alleging and proving that respondent had remarried, but circuit court denied the motion. Remarriage raises a presumption that respondent no longer needs maintenance. Property settlement agreement provided an end to maintenance on appellant’s 65th birthday, but did not mention remarriage, so the property settlement agreement did not rebut the statute’s presumption. Court of Appeals reverses judgment and remands for an amended judgment.    
TAMMY KAY CAMPBELL, Respondent vs. TIMOTHY CAMPBELL, Appellant  
Missouri Court of Appeals, Southern District - SD37620

Insurance

Duty to defend discussed  
Automobile policy’s declarations page is subject to refinement elsewhere in the policy without creating any ambiguity. One person owned two automobile policies. The first provided coverage for neither decedent nor the vehicle that decedent was driving. That result is unaffected by a second policy that provided coverage for decedent. On the grant of summary judgment for one party, the order denying summary judgment for the other party is also subject to appeal because both are inextricably intertwined. Summary judgment for respondents reversed and remanded to enter summary judgment for insurer.   
Shelter Insurance Company vs. John W. Long, Et al.  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85564

Juvenile

Ineffective counsel not shown  
Appellant juvenile’s direct appeal charges that counsel was ineffective for failure to present mitigating evidence at a certification hearing. The standard for determining whether appointed counsel was ineffective is unresolved in Missouri. But, whether the courts use the “the meaningful hearing standard applied in termination of parental rights cases or the . . . standard applied in adult criminal proceedings [,]” appellant’s claim fails because appellant did not show prejudice. The certification hearing determined only which statutes govern appellant, juvenile or criminal, and appellant did not show that appellant’s proposed evidence would have changed the outcome.   
In the Interest of: K.M.F.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110649

General and specific rules interact 
In an action for termination of parental rights, rules of juvenile procedure allow a change of judge without cause on a motion timely filed, but do not set a time limit. Another rule, generally applicable to civil procedure, sets the time limit. Appellant did not file the motion within that time. 
IN THE INTEREST OF: K.A.C. and E.A.G., minor children under seventeen years of age. GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent v. J.R.M., Respondent-Appellant
Missouri Court of Appeals, Southern District - SD37852 and SD37853 

Post-Conviction

Hearing required on timely filing   
The elements of a claim for post-conviction relief include timely filing. Incarcerated movant alleged that movant timely filed the initial motion, but the circuit court’s file shows neither a legible postmark nor a file stamp, so the circuit court dismissed the initial motion for untimely filing without an evidentiary hearing on that matter. That ruling constituted reversible error because “prisoners cannot . . . ensure that the court clerk receives and stamps their notices of appeal before the . . . deadline [,]” and the amended motion alleges that further evidence would show timely filing, which the record does not refute. Remanded for an evidentiary hearing on the filing of the initial motion.   
Aaron D. Summers, Appellant, v. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110896

Real Estate

New lease did not affect sublease  
Earlier lease expressly limited its provisions to landlord and tenant, so the cancellation of the lease and replacement with a later lease affected only landlord and tenant, not tenant’s sublessor appellant. Therefore, the termination date in the sublease, and not the new lease, continued to control appellant sublessor’s possession of disputed premises. Appellant sublessor’s exercise of renewal rights provided in the sublease supports that conclusion. The new lease contained no language vesting appellant with status as a donee third-party beneficiary; provisions mentioning appellant’s use of the disputed premises did not require continuation of the sublease.    
Save-A-Connie, INC., d/b/a Airline History Museum vs. Executive Beechcraft, INC. and the City of Kansas City, Missouri  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85355