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Case summaries for May 21 - May 27, 2021


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.

AppellateCriminal | DWI | Insurance | Post-Conviction | Real EstateSchools | Workers' Compensation


No Standing in Trustee to Appeal Settlement
Statute provides standing to appeal a judgment to aggrieved parties only. Even if appellant remains a trustee after his resignation, a judgment that approves a settlement with the trust did not aggrieve the trustee, because the capacity of a trustee confers a duty—but not an interest—in trust assets. Appeal dismissed without reaching the judgment’s merits.
Emily Riegel, Allan Pickert and Joann Pickert vs. David G. Jungerman, as Trustee or Co-Trustee of the Jungerman Family Irrevocable Trust
(Overview Summary)
Missouri Court of Appeals, Western District - WD84048


Variance Okay
Turning the wrong way down a one-way street without signaling violated traffic statutes and supported a traffic stop; and whether appellant had his headlights on does not alter that result. Further traffic offenses during the ensuing chase provide further grounds for a traffic stop. Seizure occurs when appellant was physically seized or yielded to police authority. A variance between the charging instrument and jury instructions constitutes reversible error only if material and prejudicial. Appellant showed no prejudice from jury instructions that submitted resisting a lawful stop by fleeing, when the charging instrument alleged that appellant resisted an arrest by fleeing, because his defense applied to either offense: that he was entitled to flee until police used their loudspeaker to announce the reason for pursuing appellant with lights and siren.
State of Missouri, Respondent, v. Viron Ganaway, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108596

Response to Jury Inquiry Okay
The law favors joint trial of codefendants, whose mutual “finger-pointing in closing arguments does not evidence irreconcilable defenses requiring severance.” Jury instructions were sufficient for jury to consider evidence against each defendant separately, and evidence, other than that which would be inadmissible in separate trials, was sufficient to convict appellant. Appellant showed no error in circuit court’s remedy for spectator outbursts. Sudden passion turns murder in the second degree into manslaughter but sufficient evidence negated that defense by showing that “time for the passion to cool” passed before the fatal injury occurred. When jury instructions are sufficient, circuit court should meet even a legitimate jury inquiry with a neutral response, like referring the jury to the instructions for guidance.
State of Missouri, Respondent, v. Corliss F. Mack, Jr., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108483

Batson Violation Not Shown
Whether defendant should have been tried under juvenile law, defendant did not argue until his reply brief, so the Court of Appeals will not decide that argument. Child sexual offenses can be impossible to state definitely, so pleading that the conduct occurred within a range of dates satisfies due process. The State used a peremptory strike on a venire person for nodding in agreement with everything the defense said during voir dire, which is a race-neutral reason, so the circuit court did not err in allowing that strike. “One of the differences between a peremptory strike and a challenge for cause is that, in choosing to exercise a peremptory strike, an attorney or party ‘is allowed a subjective evaluation of the honesty and accuracy of the statement of the venireperson.’” Juror testimony is inadmissible to impeach a verdict except as to events outside the jury room and evidence of ethnic or religious prejudice. Verdicts of guilty on lesser-included offenses showed careful consideration of the evidence.
State of Missouri vs. Abraham J. Gilbert
(Overview Summary)
Missouri Court of Appeals, Western District - WD83558

Evidence of Earlier Robbery Relevant
On a charge of robbery, evidence that defendant had robbed victim the same way earlier was relevant. Sufficient evidence showed that defendant threatened victim’s employee “immediately” after stealing victim’s property.
Missouri Court of Appeals, Southern District - SD36610


Privacy of Consultation with Lawyer Discussed
Statute requires consultation between driver, asked for a breath test, and counsel to be private. But driver requested consultation with counsel while pulled over, consulted with counsel in patrol car where no privacy was possible, and did not ask for privacy. Therefore, the absence of privacy did not render driver’s refusal of the breath test involuntary or unknowing, and circuit court did not err in affirming the revocation of driver’s license for a year.
Kyle Hummel, Appellant, v. Director of Revenue, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109096


Owned Vehicle Exclusions Were Unambiguous
Judicial economy supports the certification as final of a partial summary judgment for plaintiffs against plaintiffs’ insurer even though one plaintiff’s claim against defendant driver remains pending. Automobile policy’s uninsured motorist coverage greater than the minimum required by statute, and owned vehicle exclusion limiting recovery to the minimum required by statute, did not create an ambiguity.
James Purk, Plaintiff, and Loretta Purk, Respondent, v. Farmers Insurance Company, Inc., Appellant, and Christopher Wilson, Defendant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109191


Pleading and Proof Distinguished
Motion alleged facts describing active interference with filing, which excuses untimely filing, so movant was entitled to an evidentiary hearing on that allegation. But “‘[a]llegations in a postconviction motion are not self-proving [,]’” a verified motion is not admissible, and movant did not offer anything else to prove active interference at the evidentiary hearing.
Tausha Fields vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83230

Real Estate

Summary Judgment Affirmed in Part
Parties contract barred plaintiff’s claim for damages until plaintiff terminated contract, and defendant established beyond genuine dispute that plaintiff had no terminated contract, so circuit court did not err in granting summary judgment for defendant. Buyer claimed that seller’s failure to produce an executed deed prevented closing, but sellers raised a genuine dispute as to that fact with evidence that other issues would have prevented closing even if sellers presented an executed deed, so circuit court erred in granting summary judgment.
JTB Properties, LLC. vs. Joseph Zwillenberg, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD84001

Boundary by Acquiescence Explained
In an action to quiet title based on adverse possession, evidence that supported findings of actual, open and notorious, or exclusive possession included clearing and maintaining the disputed tract, fencing it in with a hot wire, and renting it out for agricultural purposes. Maintaining a fence and posting signs against trespassing are not indispensable. The time for adverse possession may begin with an agreement on an otherwise uncertain boundary, the presumption of which arises on proof of long acquiescence.
Gary Coleman vs. Heath Hartman, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83925


Insurance Deal Nixed for Retired Superintendent
Statutes expressly limit public entities’ contracts to matters specifically authorized, and allow school district retirees to participate in health insurance at the same rate as active employees, but require school district retirees to pay their own premium. Therefore, a contract by which a school district promised to pay a retired superintendent’s premium was contrary to law and unenforceable. A government contract unenforceable by law is no grounds for relief in equity by estoppel, equitable or promissory, or by specific performance.  Court of Appeals affirms the circuit court’s dismissal of superintendent’s petition.
Jeffrey Spiegel, Appellant, v. Ferguson-Florissant School District, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109274

Workers’ Compensation

Record Supported Findings for Claimant
Statutes delegate credibility determinations to the Labor and Industrial Relations Commission, as to both testimony and documents, so the Court of Appeals will substitute its judgment on neither. Evidence contrary to the Commission’s finding at trial is irrelevant on appeal. Evidence supported findings that: a physician’s diagnosis of claimant’s injury was insufficient to start running the time for claimant to give notice of a work-related condition; claimant suffered an occupational disease; multiple surgeries and other expenses were reasonably necessary for treatment; claimant was unable to compete in the labor market; and future medical treatment is necessary for claimant’s injury.
Karen Ritchie vs. Silgan Containers Manufacturing Corp. and Travelers Casualty Ins. of America
(Overview Summary)
Missouri Court of Appeals, Western District - WD84123

Commission Determines Credibility
The Labor and Industrial Relations Commission’s construction of expert testimony, including cross-examination, is a matter of credibility and therefore binding on reviewing courts. That includes whether claimant’s “last injury, in and of itself, rendered [claimant] permanently and totally disabled,” which determines whether employer is responsible for the entire award.
Missouri Court of Appeals, Southern District - SD36898