Case summaries for May 22 - May 28
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.
De Novo Review of Non-Contested Case Explained
In a non-contested case, executive branch officials make a decision but no record. On appeal from the agency, a circuit court makes a record, but its decision does not alter any discretionary decision supported by that record—the circuit court leaves undisturbed any agency decision that the facts, as found by the circuit court, “could have” supported as a matter of law. On appeal from circuit court, an appellate court reviews the judgment for support in the evidence and law like any other civil judgment: affirming “unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.” Preserving a matter for appeal requires raising it to the circuit court, which requires a reference to the record showing where that happened. Substantial evidence supported a conclusion that appellant violated two city regulations, each of which authorized firing as a consequence, so firing was authorized by law even if one of those regulations was unconstitutional.
Rob Sanders vs. City of Columbia, Missouri
Missouri Court of Appeals, Western District - WD82527
Sunshine Law Fees Explained
Appellant’s Sunshine Law request called for over 13,000 records from respondent. The Sunshine Law did not require respondent to state the exact cost of producing those records. The Sunshine Law did not require respondent to state the precise date those records would be ready, but did require a detailed explanation of why production took more than three days, which respondent did not provide. Respondent may close records of “communications between a public governmental body or its representative and its attorneys [,]” but only those that are confidential or privileged, which was less than all communications with “the Attorney General, the General Counsel, and members of the [respondent’s] staff. The burden of proof on closure of records was on respondent, so appellant had no obligation to seek an in camera review of the records, which does not happen in judgment on the pleadings. The Sunshine Law provides one fee for “traditional sized paper records” and another fee for records in other media. Only the former includes research necessary to determine a record’s status. Which records are subject to which fee, and which records required billable research time, are questions of fact precluding judgment on the pleadings. Judgment on the pleadings cannot resolve whether redacted matters were subject to closure when the pleadings do not include the matters redacted. Statutes provide penalties for violations that are knowing or purposeful. Knowing means intent to commit the conduct that broke the law. Respondent had discretion to waive fees, and appellant sought notice of the fees due before production, which negate any knowing violation of statutes on waiver and time of production. Purposeful means intent, not only to commit the conduct, but also to break the law. To preserve a constitutional challenge, appellant must plead law and fact as early as possible and continuously, or the challenge goes unpreserved.
Elad Gross vs. Michael Parson, et al
Missouri Court of Appeals, Western District - WD83061
Appellant Must Appeal Ruling Made
The Labor and Industrial Relations Commission dismissed appellant’s action as untimely filed, but appellant argued the merits of his claim to the Court of Appeals. Court of Appeals dismisses the appeal because appellant challenged no ruling made by the Commission.
Christopher Blackman vs. Division of Employment Security
Missouri Court of Appeals, Western District - WD82976
Judgment Confirming Arbitration Award Was Not Final
Plaintiff’s resolved his claim against one defendant by arbitration, but the judgment confirming that award is not final, because other claims remain, including appellant’s claim against a third party. Appeal dismissed for lack of authority.
Oscar Lopez vs. Heartland Midwest, LLC, et al; Time Warner Cable Midwest, LLC
Missouri Court of Appeals, Western District - WD83087
Omission of Required Components Requires Dismissal
Rules require appellant’s brief to include the standard of review, a statement of facts, a point relied on, and an argument that follows the point relied on. Omitting those features results in dismissal of the appeal.
NEIL B. STEINER and DEBORAH G. STEINER, Appellants v. ROBERT ROLFES and SUSAN ROLFES, Respondents
Missouri Court of Appeals, Southern District - SD36454
Yelp Reviews Result in Claims, Some Timely
When a motion to dismiss for failure to state a claim relies on matters outside a petition, “[t]here is no middle ground [:]” the circuit court may either treat it as a motion for summary judgment, or exclude the outside matters. The latter occurred, the Court of Appeals concludes, because nothing shows reliance on matters outside amended petition in the original judgment. Appellate courts presume that, when a judgment grants a motion for involuntary dismissal without stating any grounds, the grounds for dismissal are those argued in the motion. The motion cited a statute of limitations, which is an affirmative defense, but that statute applies to less than all claims brought in the amended petition. As to alleged defamatory statements on Yelp, “[t]he statute of limitations began to run . . . not when the defamatory statement was made, but when damages were ascertained.” Rule on relation back is a remedy for the misidentification of parties, which did not occur in the original petition, because that document identified respondents. More time for discovery would have changed nothing as to the statute of limitations affirmative defense. The original judgment was final so, in the absence of any post-judgment motion, circuit court had no authority to issue an amended judgment 35 days later. Court of Appeals vacates the unauthorized amended judgment. The original judgment dismissed claims without designating whether the dismissal was without prejudice or with prejudice, and rule deems it without prejudice, but a dismissal without prejudice is subject to appeal when it effectively terminates the litigation.
Jason Hartman, et al vs. Ken Logan and Quentin Kearney
Missouri Court of Appeals, Western District - WD83039 and WD83139
Circuit Court Had Authority to Terminate Parental Rights
Statutes provide that the requirements for filing an action to terminate parental rights include the child’s age: 13 months as of the filing of the petition. But “[s]tatutory prerequisites to suit are not elements to a lawsuit; they are affirmative defenses thereto, subject to waiver,” and appellant never raised the issue of child’s age to the circuit court. Appellant thus waived that condition for filing and failed to preserve any error for appellate review. The record undisputedly supports the circuit court’s findings of facts and conclusions of law, terminating appellant’s parental rights for abandoning the child, under either the statute for a child aged 13 months or a separate statute for a child aged less than 13 months.
In the Interest of: L.J.H.; Juvenile Officer vs. M.H. (Mother)
Missouri Court of Appeals, Western District - WD83213
Record Requires Reversal on Modification of Maintenance
On a motion to modify maintenance, movant can show “changed circumstances so substantial and continuing as to make the terms unreasonable [,]” with evidence that “the recipient of the maintenance could meet [their] reasonable needs with a lesser amount of support.” Circuit court’s finding on respondent’s monthly expenses followed respondent’s allegations, but not respondent’s testimony, so the substantial evidence did not support the circuit court’s ruling. Statutes also make the expenses and contributions of recipient’s cohabitants relevant, which the record showed, but circuit court ignored. Appellant’s ability to pay a greater amount is irrelevant to respondent’s needs. Denial of appellant’s motion to modify maintenance was against the weight of the evidence. Statutes allow an award of attorney fees on consideration of all relevant factors, but circuit court considered only appellant’s ability to pay, which was an abuse of discretion.
James K. Davis, Appellant, vs. Joan C. Davis, Respondent.
Missouri Court of Appeals, Eastern District - ED107835
No Appeal from Interlocutory Award of Attorney Fees
Interlocutory judgments are generally not subject to appeal but statutes make an exception for actions in probate when circuit court allows a claim against an estate for more than $100. That did not describe circuit court’s docket entry ruling on petition for attorney fees, because the circuit court found the amount reasonable, but denied the petition and ordered a claim filed. Appeal of that order dismissed.
In the Estate of Bessie Marie Rich, Deceased; M. Warren Rich vs. Jeri Leigh Hibler Caskey
Missouri Court of Appeals, Western District - WD82884
Chapter 13 Payments Did Not Revive Debt
Statute limited the time for filing an action to collect on a promissory note at 10 years after the note’s maturity date, and appellant filed his action after that time. The statute of limitations does not apply to the note if debtor prepares and signs for the creditor a “direct” and “distinct, unqualified, unconditional, clear, and unequivocal” written acknowledgement of a present promise to pay. That description does not apply to respondents’ bankruptcy plans because those plans were prepared for the bankruptcy court, not appellant; the bankruptcy trustee made and signed the payments, not respondents; and the plans included qualifications and conditions. Foreclosure on note, and accompanying deed of trust, was time-barred.
Mark Stevenson vs. Mary Maxwell
Missouri Court of Appeals, Western District - WD82549
Condo Fee Overpaid Voluntarily
When payor knows all the facts, but makes a mistake of law and pays an amount not due, payor cannot recover the payment without showing fraud or duress. Appellants alleged no fraud or duress; they were on the board of a condominium association, so they knew the facts on whether a property was subject to a lien, and made a mere mistake of law when they paid the association an amount in satisfaction of a lien. The circuit court ruled that the association did not misrepresent the amount due, which appellants challenge based on the evidence, but the association had no burden of proof so the circuit court’s ruling needed no evidence. Also, appellant’s point is multifarious, and does not address the evidence favoring the ruling.
ANGELA KOELLER and JEFF HASKENHOFF, Plaintiffs-Appellants v. MALIBU SHORES CONDOMINIUM ASSOCIATION, INC., Defendant-Respondent
Missouri Court of Appeals, Southern District - SD36129
Filing By Mail Explained
Statutes on filing an application for review with the Labor and Industrial Relations Commission allow filing by mail, and provide that the postmark date is the filing date, but only if the mailing includes sufficient postage and reaches the Commission. Appellant’s first mailing had a timely postmark, but insufficient postage, and did not reach the Commission. Appellant’s second mailing was postmarked too late. The Commission did not err in dismissing appellant’s application for review for untimely filing.
DAVID KEELER, Employee-Respondent v. ASSOCIATED WHOLESALE GROCERS, INC., Employer-Appellant and TREASURER OF THE STATE OF MISSOURI, as CUSTODIAN of the SECOND INJURY FUND, Respondent
Missouri Court of Appeals, Southern District - SD36432
More Evidence, Complete Record, Required
On an application for review before the Labor and Industrial Relations Commission, Commission regulations require the Commission to rule on a motion to submit additional evidence, and the Commission’s failure to do so constitutes a misapplication of the law. On appeal of the Commission’s award, statute and rule require the preparation of a record on appeal, which the Commission must certify as true, accurate and complete. Rule requires the record generally to include all relevant papers, but statute specifically requires record on appeal from the Commission’s award to include “all documents and papers on file in the matter[.]” The Commission’s repeated failures to comply with those directives, especially as to motions to submit additional evidence, hindered the appellate process.
CINDY A. ROWE, Appellant vs. SOUTHEAST MISSOURI RESIDENTIAL SERVICES, SOUTHEAST MISSOURI HOSPITAL, AND TREASURER OF THE STATE OF MISSOURI AS CUSTODIAN OF THE 2nd INJURY FUND, Respondents
Missouri Court of Appeals, Southern District - SD36275