Case summaries for May 24-30, 2024

Administrative | Appellate | Civil | Criminal | Employment | Employment security | Family | Insurance | Post-conviction | Probate | Tax | Workers' compensation

Administrative

Additional discipline affirmed
Statutes provided that a licensing agency could impose further discipline when a licensee violated provisions of probation and committed decisions, whether and how much to discipline, to the licensing agency’s discretion. Evidence of a violation was for the licensing agency to weigh, not appellate courts. The licensing agency’s findings of fact, including the degree of the licensee’s culpability, had support in the record.
(Overview summary)
Tammy Walsh vs. Missouri State Board of Nursing
Missouri Court of Appeals-Western District - WD86677

Appellate

Appellant’s briefing deficiencies result in dismissal
Rules required appellant’s brief to include references to the record in the Statement of Facts and Argument, and to describe the reversible error in the Point Relied On. Failure to comply with those rules abandoned the Point Relied On. Offered the chance to correct, appellant failed to do so, further supporting the grounds for dismissal.
(Overview summary)
Caitlin Summers vs. Department of Corrections, Employer, and Division of Employment Security
Missouri Court of Appeals-Western District - WD86411

Civil

Stricken pleadings admit petition’s allegations
In plaintiff’s action for damages based on contract and fraud, defendant alleged an affirmative defense under the Statute of Frauds, but the circuit court struck that defense and all responsive pleading as a discovery sanction. On those facts, defendant admitted all plaintiff’s allegations, and had no standing to contest the merits, and no further proof—including a writing—was necessary for plaintiff to prevail.
(Overview summary)
John Marcus Sommers vs. Dustin Matthews
Missouri Court of Appeals-Western District - WD86078

Criminal

Declaratory judgment on criminal statutes only for constitutional issues
The Declaratory Judgment Act determines the validity of and status under laws in a civil action, so courts will not use it to test criminal statutes, except for constitutional issues. Plaintiff filed a declaratory judgment action to determine whether their property constituted gambling devices under the criminal statutes under threat of criminal proceedings. An overlap with civil provisions against gambling devices was inconsequential, and plaintiffs raised no constitutional issue, so the circuit court did not err in dismissing the action and counterclaims.
(Overview summary)
Torch Electronics, LLC, Et al. vs. Missouri Department of Public Safety, Et al.; Missouri Gaming Association
Missouri Court of Appeals-Western District - WD86610 (Consolidated with WD86674 and WD86689)

Conviction for interfering with an arrest reversed
The elements of interfering with an arrest include physical interference and an arrest. An arrest requires control over the someone's movements, which did not happen to defendant driver’s passenger when a law enforcement officer took defendant’s keys. Physical interference was something less than physical force but something more than refusal to unlock a car door that automatically locked. “The State fails to cite to a single authority that supports its argument that [defendant] was required to take an affirmative act to assist the officers in effectuating the arrest, i.e., unlocking the vehicle doors, or be subject to criminal charges.” The Missouri Court of Appeals reversed the convictions and discharged the defendant.
(Overview summary)
State of Missouri vs. Brian V. Milazzo
Missouri Court of Appeals-Western District - WD86250

Propensity evidence okay
A venireperson declared the defendant “a cho-mo [,]” but that declaration was not so inflammatory as to taint the entire panel, so the circuit court did not err in failing to dismiss the entire panel. Constitutional provisions generally protected a defendant from conviction for anything other than offenses charged, but specifically allowed propensity evidence in sexual offenses against children, on a specified foundation. The lack of physical evidence showed the State’s need for victim testimony, which increased the danger of unfair prejudice; but the brief, factual, and dispassionate nature of that testimony controlled that risk. Remoteness in time did not bar such evidence and, when the uncharged acts were similar to those charged, enhanced the probity of that evidence. Constitutional provisions protected the defendant from a verdict less than unanimous, which could happen if all jurors found defendant guilty but on different incidents, but the verdict director submitted only one incident for the victim. Even when the defendant showed that the circuit court held a mistaken belief about sentencing, defendant showed no plain error without also showing that the circuit court applied its mistaken belief about sentencing.
(Overview Summary)
State of Missouri vs. Robert Shannon Billings
Missouri Court of Appeals, Western District - WD85545 consolidated with WD85898

Juror witness interaction okay
The circuit court did not abuse its discretion in denying defendant’s motion to disqualify a prosecutor based on the prosecutor’s choice of charges and refusal to plea bargain. A criminal information charging burglary must plead the owner or occupant of the structure burglarized to show that the building was not defendant’s and, especially when multiple break-ins are at issue, to distinguish one incident from another; the State proved those allegations. Defendant did not show plain error when a juror greeted a witness and the circuit court did not declare a mistrial sua sponte because “[a] defendant is not prejudiced by an interaction between a juror and a witness that is casual, brief, and totally unrelated to the trial.” A statute provided that sentences run concurrently unless otherwise provided so, when the circuit court impose a concurrent sentence, its judgment did not need to reflect concurrent sentencing.
STATE OF MISSOURI, Respondent v. SHAWN W. YOUNT, Appellant
Missouri Court of Appeals-Southern District - SD37629

Dismissal of charges affirmed
A criminal information is subject to dismissal if the information alleges facts that, if true, do not allege an offense. Exiting a vehicle and placing several long guns within easy reach on the parking lot of a Walmart did not necessarily describe a terrorist threat or harassment because an innocent explanation was also possible. The Missouri Court of Appeals affirmed the circuit court’s dismissal of those charges, and of a resisting arrest charge dependent on the validity of the terrorist threat and harassment charges.
STATE OF MISSOURI, Plaintiff-Appellant v. WARREN DALE BRANNING, Defendant-Respondent
Missouri Court of Appeals-Southern District - SD37795

Serious Physical Injury Not Shown
The circuit court did not intervene when a witness volunteered hearsay testimony, but the defense also elicited evidence on the same topic, so no plain error occurred. On a charge of first-degree murder, the jury received instructions on lesser included offenses. As to those offenses, the state’s acquittal-first argument misstated the law and the circuit court did not intervene sua sponte. But defendant did not show “a decisive effect on the jury’s determination” because defendant did not show any relation of the argument to defendant’s theory of misidentification, so defendant did not show any plain error. The elements of class A felony first-degree assault included serious physical injury, meaning that substantial risk of death, serious disfigurement, or protracted loss or impairment of the function of any part of the body resulted. “But, critically, admitting a piece of evidence into the record is not equivalent to publishing such evidence[,]” so no such result was shown by evidence of bullet wounds — to one victim’s lower leg, and to another victim’s upper leg and hand — without evidence of those victims’ conditions. The Missouri Court of Appeals reversed the defendant’s convictions for class A felony first-degree assault and entered convictions for class B felony first-degree assault.
(Overview summary)
State of Missouri, Respondent, vs. Anthony Tate, Appellant.
Missouri Court of Appeals-Eastern District - ED111626

Employment

Discrimination verdict reinstated
An appellate court affirmed a judgment notwithstanding the verdict only when no evidence supports the verdict. Plaintiff sustained a work-related injury, filed an action for workers’ compensation, and got fired. The temporal relationship was insufficient to show retaliation against the workers’ compensation claim, so the circuit court did not err in entering judgment notwithstanding the verdict for defendants on plaintiff’s retaliation claim. As to retaliation against an employment discrimination claim based on disability, plaintiff offered substantial evidence that plaintiff’s employer fired plaintiff because plaintiff opposed changes to his job that were based on his disability: emails disputing plaintiff’s job requirements, abilities, and leave. As to disability discrimination, plaintiff offered substantial evidence that plaintiff’s employer’s animus to plaintiff’s disability was a contributing cause of the firing: repeated doubts and insults about the disability, and complaints about plaintiff’s job performance. On those latter two claims, the Missouri Court of Appeals reversed the circuit court’s judgments notwithstanding the verdict, and remanded the action to the circuit court for judgment in plaintiff’s favor, and for an award of attorney fees.
(Overview summary)
Scott Caldwell, Appellant, vs. Unifirst Corporation and Michael Dean Seever II, Respondents.
Missouri Court of Appeals-Eastern District - ED111923

Employment security

Ruling Required on Mischaracterized Appeal
A deputy ruled that claimant owed an overpayment of benefits. To show notice of that ruling via e-mail, substantial and competent included a certificate of signed by a referee and online portal records. Claimant filed a timely administrative appeal to an Appeals Tribunal. But the Appeal Tribunal treated the administrative appeal as addressing another — earlier — ruling and dismissed the administrative appeal as untimely. That erroneous characterization, and ensuing rulings, constituted “significant procedural mistakes” for which the Labor and Industrial Relations Commission must review even an untimely filed application for review “This case depicts a familiar series of unfortunate events that this Court continues to observe in unemployment cases in which claimants, typically unrepresented, are subject to the Division’s confusing procedures and communications practices. Thus, we encourage the Division’s efforts to improve.” The Missouri Court of Appeals reversed the commission’s dismissal and directed the commission to remand the action to an Appeals Tribunal for a ruling on the merits.
(Overview summary)
Cheryl Dickerman, Appellant, vs. Amazon.com, Inc., and Division of Employment Security, Respondents.
Missouri Court of Appeals-Eastern District - ED112119

Family

Attorney fees discussed
To show that departure from the technicalities of a local rule constituted reversible error, appellant had to show that the departure “materially affecting the merits of the action.” As to a motion to withdraw by appellant’s attorney, the record showed no opposition by appellant until a verified motion for new trial, which the circuit court was free to disbelieve. Substantial evidence supporting an award of attorney fees was not confined to ability to pay and included conduct during the marriage and in litigation. In a dissolution of marriage, when a party seeks maintenance, the circuit court must determine whether that party can meet their reasonable needs through property, separate and divided marital, and employment. The circuit court erred in finding that appellant did not seek maintenance, so the Missouri Court of Appeals remands the judgment to resolve that matter.
(Overview summary)
Shawn Bitters vs. Darryl Olive
Missouri Court of Appeals-Western District - WD86502

Pleadings struck
Constitutional language stated that circuit courts have plenary subject jurisdiction, so defects in pleading affect only circuit court authority. In an action for dissolution of marriage, statutes required the circuit court to determine custody of all unmarried minor children, which pleadings partially resolved by identifying child. The pleadings contested custody, visitation, and support; which gave the court authority to determine those issues and appoint a guardian ad litem. Rules governing discovery provided for sanctions, including striking pleadings, and service of a motion for such sanctions constituted notice that the sanction could happen. A complete disregard of the circuit court’s discovery orders supported striking the pleadings. A re-assigned circuit judge had authority to modify and execute any such order. Rule governing continuances requires a motion in writing, absent which no denial is an abuse of discretion.
(Overview summary)
Stephen C. Kronk vs. Aleek J.C. Awan
Missouri Court of Appeals-Western District - WD86233

Maintenance modification reversed
Statute provided modification of maintenance only for unknown and unforeseeable “changed circumstances so substantial and continuing as to make” the current maintenance unreasonable. Such circumstances included a relationship in substitute for marriage, by permanency and financial co-dependence, that equitably constitute abandonment of maintenance. The circuit court’s findings, supported by the record, show no financial benefit to obligee defendant respondent. Nothing required a party to consume assets for an award or continuing receipt of maintenance, and the circuit court’s findings on that matter had no support in the record. Imputed income and speculative returns on assets awarded in the dissolution action were not unknown and unforeseeable. An abuse of discretion occurs when a circuit court omits judicial consideration, including the adoption of “a faulty proposed judgment[.]” The Missouri Court of Appeals reversed the judgment modifying maintenance and awarding attorney fees.
(Overview summary)
Carol Cullen, Respondent/Cross-Appellant, vs. Robert Bernstein, Appellant.
Missouri Court of Appeals-Eastern District - ED111233

Insurance

Automobile policy included underinsured motorist coverage of $100,000 unambiguously reduced by “other sources.” Such other sources included $75,000 that insured received from tortfeasor’s insurers. The Missouri Court of Appeals reverses the judgment granting insured’s motion for summary judgment and the denial of insured’s intertwined motion for summary judgment.
(Overview summary)
Larhonda Johnson vs. American Family Mutual Insurance Company, S.I.
Missouri Court of Appeals-Western District - WD85966

Post-conviction

No appeal of waived issue
The motion claimed that failure to raise the lack of a second mental health examination rendered appellate counsel ineffective. To be effective, appellate counsel did not have to raise every possible issue, much less an issue waived at trial. In any criminal action, a statute provided for a mental examination to determine competency on either party’s motion, and the filing of a report with the circuit court, and a second mental examination on the defendant’s motion at defendant’s expenses. Movant filed a motion for a second examination, but withdrew it, and expressly waived a second examination. On those facts, movant could not show that appellate counsel’s performance was substandard or caused any prejudice.
PATRICK ELLSWOOD, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals-Southern District - SD37932

Not to investigate medical conditions was a strategic choice
Plea counsel has a duty to investigate mitigating factors for sentencing. Movant claimed that medical conditions caused a mental disease or defect, but a physician found that movant was malingering, and plea counsel’s own research showed that movant’s allegations were implausible. For that reason, plea counsel did not pursue movant’s allegations further. That strategy was sound. Plea counsel’s performance was not substandard, and movant did not show that a different outcome was likely with further investigation, so the circuit court did not err in denying relief.
(Overview summary)
Russell Dunn, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED111939

Probate

Construction of a trust seeks to give effect to the settlor’s intent as discerned from the trust instrument’s four corners including legal terms of art. Settlor directed designated a contingent beneficiary, the contingency being that a son of settlor predeceased settlor without issue. The trust also directed a sale of and distribution from trust property starting on that son’s 65th birthday and continuing over a reasonable time, but that sale was not an additional contingency, so whether a reasonable time had passed was irrelevant. Circuit court’s interlocutory judgment, ruling that appellant was not a contingent beneficiary to a trust, disposed of all claims as to that party and so was properly certified for appeal. The Missouri Court of Appeals reversed that judgment and entered judgment for appellant.
(Overview summary)
Rebecca Lynn Larson, Et al. vs. Alvin Winkler Et al.; Kevin Goucher and Alisa Goucher
Missouri Court of Appeals-Western District - WD86359

Tax

The general tax refund statute provided the remedy that taxpayers sought so taxpayers could not bring an action under United States civil rights statutes. The general tax refund statute did not authorize class actions, so the circuit court did not err when it denied class certification for an action under that statute. Denying refunds, on facts for which the city collector previously granted refunds, did not constitute an increase in the levy in violation of the Hancock Amendment. City ordinance, which imposed a tax on earnings certain persons “for work done or services performed or rendered in the City[,]” plainly and unambiguously applied only to activities that occurred within the city’s borders. The ordinance did not apply to activities that occurred beyond the city limits and were transmitted “into” the city, like remote work by computer, which the ordinance could not have contemplated and did not generate revenue to support. No consideration of the city collector’s prior practice occurred, or was necessary, to reach that result. Taxpayers did not show any special circumstances, nor any equitable circumstances requiring a balance of the benefits, supporting an award of attorney fees.
(Overview summary)
Mark Boles, et al., Respondent/Cross-Appellant, vs. City of St. Louis, et al., Appellant.
Missouri Court of Appeals-Eastern District - ED111495

Workers’ compensation

On a claim for worker’s compensation, claimant’s burden of proof included showing that a work-related event was a prevailing factor in a resulting disability, not merely precipitating or triggering factor, and the resolution of conflicting evidence on that matter was for the Labor and Industrial Relations Commission. An appellate court reviews the whole record but does not re-weigh the evidence. A commission regulation the provided review of a temporary award for liability only, which the employer may waive, but claimant’s evidence of early medical care did not show such waiver.
(Overview summary)
Juan Fernandez vs. Smithfield Foods, INC.
Missouri Court of Appeals-Western District - WD86421