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Case summaries for May 28 - June 3, 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.

Civil | Constitutional | Corporations and Other Legal Entities | Employment | Family | Post-Conviction


Surcharge Unconstitutional
A $3 surcharge on all civil and criminal actions benefitted only a sheriff's retirement system, so it did not relate to the administration of justice and violated the constitutional ban on the sale of justice. Appellants gained a pecuniary interest in the surcharge by paying it, albeit through their attorney, which afforded them standing to challenge the surcharge’s constitutionality. In an action for restitution of the surcharge only, circuit clerks charged with collecting the surcharge claimed no interest and were not necessary parties. Appellants “were not required to present their constitutional challenge to the municipal court” to preserve it. Respondent waived issues of voluntary payment and acquiescence by including both in a multifarious point.
Daven Fowler, et al., Appellants/Cross-Respondents, vs. Missouri Sheriffs' Retirement System, Respondent/Cross-Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98484


Exemption for Public Safety Labor Organizations Sinks Labor Bill
Constitution provides that employees, including government workers, have the right to choose their own representatives for collectively bargaining. Legislative coercion to seek representation through a public safety labor organization, which is exempt from legislation that imposes significant burdens and expenses on all other public worker representation, violates equal protection. That is because no rational basis distinguishes public safety labor organizations that represent other government workers from other labor organizations that represent government workers. The exemption is so pervasive that severance would change the legislation, so the Supreme Court affirms the circuit court's judgment declaring the legislation void.
Missouri National Education Association, et al., Respondents, vs. Missouri Department of Labor and Industrial Relations, et al., Appellants, Ferguson-Florissant School District, et al, Defendants.
(Overview Summary)
Supreme Court of Missouri - SC98412

Corporations and Other Legal Entities

Derivative Action Pleaded
Rule governs pleading in derivative actions, but defendant waived any defect under that rule by failing to raise it in circuit court, and plaintiff’s petition plainly stated claims on behalf of both plaintiff and limited liability company. Substantial evidence showed that defendant violated his duties under statutes that impose fiduciary duty on, and bar self-dealing by, LLC’s manager. Statute and LLC articles of organization immunized LLC’s manager from liability based solely on his capacity as manager, and LLC’s operating agreement immunized any member from liability for anything done in good faith, but defendant’s diversion of funds to his own use was not within those descriptions. Operating Agreement also provided an award of attorney fees to prevailing plaintiff.
Lynn Schieve, Individually and as a Member of the Carroll Meyer Family Limited Liability Company, LLC vs. John Meyer
(Overview Summary)
Missouri Court of Appeals, Western District - WD83700


Compensable Activities Discussed Under Continuous Workday Rule
"The [S]tate waives sovereign immunity when it enters into an express contract" so plaintiffs’ action against the State to enforce a contract that incorporates statutory standards does not constitute a forbidden private action to enforce those standards. Circuit court did not abuse its discretion in denying a motion to de-certify plaintiffs’ class, because plaintiffs had numerous matters of fact and law in common, numerous differences in individual plaintiffs’ damages notwithstanding. Rule governing summary judgment requires the recitation of material facts and citations to the evidence establishing them. Reciting the evidence does not comply with that rule because when a numbered paragraph does nothing more than to “state only that a fact witness has testified about a fact in his or her deposition [,]” “an admission of the correctness of the statement of the witness’s testimony does not prove the substance of the witness’s testimony is undisputed.” Presentation of an issue in a response to a motion for summary judgment preserves that issue without a motion for new trial. Portal-to-Portal Act does not require compensation for traveling to work, nor for activities “preliminary and postliminary” to work; but includes a continuous workday rule, which does require compensation for all time between the first and last activities that are an element of, and indispensable to, the work that employer hires employees to do. Plaintiffs established beyond genuine dispute that the time during which plaintiffs pick up or return equipment before and after their shifts, and all time when they must supervise inmates wherever in a facility plaintiffs are, is compensable. Plaintiffs did not establish beyond genuine dispute that any other pre-shift and post-shift activity was compensable. Therefore, Supreme Court vacates circuit court’s summary judgment in part for further proceedings to determine whether other pre-shift and post-shift activity was compensable.
Thomas Hootselle, Jr., et al., individually and on behalf of all others similarly situated, and Missouri Corrections Officers Association, Respondents, vs. Missouri Department of Corrections, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98252


College Admittance Did Not Show College Attendance
Statutes extend support for child past 18 years of age on notice of enrollment in an institution of higher or vocational education. Failure to timely respond to an affidavit of emancipation terminates a support obligation. In an action for administrative modification, the decision showed that child was accepted into college; but it did not determine whether appellant received notice, whether child enrolled in college, or whether child was emancipated. Remanded for findings of fact.
Keith Henderson vs. State of Missouri, Department of Social Services, Family Support Division
(Overview Summary)
Missouri Court of Appeals, Western District - WD83628


Strategies on Impeachment Were Sound
Brady information includes the State’s deals for leniency, written or not, with a witness; but a witness’s hopes, and even expectations, for leniency do not constitute a deal. The record does not show any deal, despite eventual favorable treatment for witness, and no inference adverse to the State arose from the witness’s refusal to comment during deposition. Movant did not show bad faith in the destruction of carpet strands and pet hair that were, at best, potentially exculpatory; so movant showed no due process violation. On voir dire, the State’s characterization of murders as “horrible” supported no objection, so trial counsel was not ineffective for making none. Movant did not show that presenting an inconclusive challenge to DNA evidence would have changed the outcome at trial when the State could have countered with more decisive testimony. On a claim of ineffective trial counsel, the law presumes that trial counsel acted with sound strategy, and neither trial counsel’s inability to recall a strategy nor the absence of findings of fact required a remand, because neither overcame that presumption. Movant did not show that trial counsel’s trial strategy on how to impeach a State witness, by avoiding highlighting details of the crime, was unreasonable. Movant did not show that trial counsel had to display movant’s clothes to show absence of blood rather than reports of lab analysis on clothes. Establishing the exact number of cigarette packages in a lot, from which both movant and victims possessed packages, would not have negated State’s theory that movant took his package from victims. Movant did not show that trial counsel’s selection of experts for penalty phase evidence was unreasonable; the right to effective counsel does not include infinite investigation and expert-shopping. Movant did not show that trial counsel’s selection of fact witnesses for penalty phase evidence was unreasonable; other witnesses were uncooperative, or their testimony would have been cumulative or irrelevant, or would have led to damaging evidence and arguments from the State. The time limits in post-conviction procedure are constitutional. Supreme Court has jurisdiction when appellant received the death penalty. Denial of post-conviction relief affirmed. 
Jesse Driskill, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98259