14:53 PM

Case summaries for May 29 - June 4


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.

Appellate | Civil | Criminal | DWI | Employment | FamilyInsurance | Post-Conviction | Real Estate | Tax


Judgment Not Final
The right to appeal a circuit court ruling is statutory, and statutes allow appeal from a judgment when final, including by certification. Certification requires disposition of all theories on a set of facts. Dismissing one count of petition did not support certification when another count sought relief on the same set of facts under a different theory.
Daniel L. Taylor vs. The Curators of the University of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83238

Only a Party Has Standing to Appeal
Statutes allow appeal of a circuit court judgment by an aggrieved party. A party is a person named in the petition or added later. The petition named only “John Doe and Jane Doe,” not appellants; and no ruling made appellants parties to the action by intervention, substitution, or otherwise; nor do appellants allege that the judgment has any effect on them. Appeal dismissed for lack of standing.
Mila Homes, LLC vs. Donald H. Scott and Carolyn Scott
(Overview Summary)
Missouri Court of Appeals, Western District - WD82165


Product’s Presence in Missouri Is Less Than Minimum Contact
Prohibition is the appropriate remedy when further proceedings will waste judicial resources, as would any further proceedings in an action in which defendant is outside the circuit court’s personal jurisdiction. Personal jurisdiction over a non-resident defendant corporation requires certain facts that include some minimal contacts between the defendant and the forum. The presence of manufacturer’s product in Missouri through independent third-party distributors and retailers alone, even when foreseeable, does not meet that standard. Supreme Court makes permanent its writ of prohibition.
State ex rel. LG Chem, LTD., Relator, vs. The Honorable Nancy Watkins McLaughlin, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC97991

Communications Show Settlement Made, Not Modified
“[A]n unequivocal assent to a settlement of the parties’ dispute” occurred when one party sent a draft and the other party responded, “Agreed.” Even absent a contemplated later formal document, agreement to essential terms binds the parties. A later attempt to unilaterally change the tense of the verb “to be” was not innocuous; the record of the parties’ acrimony shows that it signified a significant change to the settlement’s terms, and that no mutual assent to such change ever occurred. Sanctions against a party for bad faith conduct are within the inherent powers of a circuit court, but require a factual basis, and should occur rarely: to vindicate circuit court authority or make another party whole for the sanctioned party’s “obstinacy.” Neither one appears in appellant’s resistance to a unilateral change in the scope of the settlement.
Debra Woodson, Plaintiff, vs. Bank of America, N.A., Defendant, and Millsap & Singer P.C. and Millsap & Singer, LLC, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107947


Admissible Evidence Sufficient, Inadmissible Evidence Cured
Elements of possessing heroin include control over the heroin, which the State may show with evidence that defendant had access to the location of the heroin, even if shared. If shared, a finding of guilt requires more evidence, like control over the premises and conduct manifesting consciousness of guilt. Evidence of the former included utility bills in defendant’s name and routine access over time. Evidence of the latter included impeding the execution of a search warrant. Testimony from State’s witness relating the statement of a co-defendant was inadmissible, but resulting prejudice was minimal, and presumptively remedied by a curative instruction.
State of Missouri, Respondent, vs. Robert A. Young, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107796


Probable Cause for Minors Explained
Statute requires suspension of license generally arrested upon probable cause to believe that they drove with blood alcohol, at a higher level for anyone generally, but a lower level for persons under 21 years old specifically. The differing levels relate to the consequence of driving with the respective blood alcohol levels based on age. Probable cause is the same for any age and include observing driver’s indicia of intoxication, following a stop after observing driver’s illegal operation while driving. Illegal operation itself is not an element of an action for revocation, so evidence of a radar gun showing that driver was speeding, constituted observation of illegal operation.
Colton Groom, Appellant, vs. Director of Revenue, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107869


Punitive Damages Awarded in Retaliation Case
“[T]he nature of the pled cause of action is determined by the stated facts and requested relief, not by any invocation of [a] specific word [.]” The elements of a claim for sexual harassment, by supervisor’s creation of a hostile work environment, include an effect on employment terms or conditions or privileges resulting from gender-based conduct. The latter, plaintiff pleaded by alleging that he was the subject of a re‑assignment based on a false report. As to the former, plaintiff made a submissible case with evidence that a supervisor described men as untrustworthy. Evidence, that complaining about that description caused the negative job action, showed retaliation. Evidence, including supervisor’s reluctance to reasonably accommodate plaintiff’s painful medical condition, could have supported a characterization as outrageous conduct in support of punitive damages. Evidence to the contrary did not make plaintiff’s case less than submissible. Circuit court did not err in submitting plaintiff’s case to the jury but did err in failing to submit punitive damages. Attorney fees are due for prevailing on appeal.
Lavanden Darks vs. Jackson County, Missouri, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD82797 and WD82849


Statutory Factors Show Child’s Best Interests
Court of Appeals reviews circuit court’s determination of the child’s best interests for a ruling “so arbitrary, unreasonable, illogical and ill-considered that it shocks the sense of justice and indicates a lack of careful consideration [,]” which defines an abuse of discretion. No abuse of discretion occurred when the circuit court concluded that termination of parental rights was in the child’s best interests on evidence establishing five out of seven statutory grounds; specifically, the absence of: emotional ties between parent and child, regular visits by parent with child, financial or in-kind support from parent to child, additional available social services for parent, and any commitment to or interest in child from parent.
IN THE INTEREST OF: P.W.W., JR., a child under seventeen years of age GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent vs. L.J.W., Respondent-Appellant
Missouri Court of Appeals, Southern District - SD36538

Time with Child Conditioned on Residence
In an action to determine paternity, respondent sufficiently requested relief in the form of attorney fees by praying for such relief in a responsive pleading. Appellant showed no prejudice in the exclusion of cumulative evidence—hearsay relating sexual abuse by a child declarant—so Court of Appeals need not rule on whether the evidence was within an exception to the rule barring hearsay. Statute provides that the foundation for opinion testimony includes the proffered witness’s skills, knowledge, experience, training, or education; so, absent any showing of such foundation, circuit court did not err in barring a witness’s opinion testimony. Circuit court did not err in awarding custody to respondent, despite allegations that respondent had sexually abused child, when circuit court found no credible evidence supporting that allegation. Circuit court cannot order a parent to reside in a specific region but can condition an increase in parent’s time with child based on logistical considerations like residence. Court of Appeals remands to circuit court to delete the judgment’s provisions barring non-custodial from child’s school and medical records.
A.J.C., a minor, by and through her Next Friend, J.D.C., JR., and J.D.C., JR., Individually, Petitioners-Respondents vs. K.R.H., Respondent-Appellant
Missouri Court of Appeals, Southern District - SD35978


“Regular Use” Exclusion Explained
Motor Vehicle Financial Responsibility Law provides minimum required coverage for automobile policies for insureds, but no one else, so an automobile owner’s insurance policy could exclude cars regularly used by a family member of insured.
Missouri Court of Appeals, Southern District - SD36424


Inquiry Into Abandonment Required
Unless the initial motion was identical to the amended motion, ruling on an amended motion that was untimely filed requires that the circuit court must independently inquire into whether abandonment occurred, which excuses the untimely filing. A filing is untimely when filed after the deadline, unless the circuit court granted the extension, even when a motion for extension was pending when the amended motion was filed late. Remanded for that inquiry. “Although the method of making this inquiry is left to the motion court’s discretion, the court must, in any event, make a sufficient record to demonstrate on appeal that its determination on the abandonment issue is not clearly erroneous.”
Roy D. Brown, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107990

Real Estate

Appeal from Eviction Dismissed
“Where there is no statute providing a right to appeal, none exists.” Statutes provide that the remedy for an order of eviction from associate division without a jury is trial de novo in circuit court, and do not provide appeal from associate division to Court of Appeals. Without authority to hear the appeal, Court of Appeals must dismiss.
Sansone Group DDR LLC, Respondent, vs. Wilma Pennington-Thurman, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108169


Owner Was Not Purchaser
On review of a sales tax assessment or a use tax assessment before the Administrative Hearing Commission, the Director of Revenue has the burden of proof. The elements of liability for sales tax and use tax include the purchase of personal property. To purchase means to receive title for consideration, so an owner who did not pay consideration is not liable for sales tax. Making a payment, when another party is liable for reimbursement of that payment, does not make the payor liable. Tax is due from the owner of the fund that paid for the property, and appellant football team owned neither that fund, nor the proceeds of tax credits sold from that fund; those things belonged to the State finance board or to the third parties who bought the credits. “[T]he fact that the team ultimately benefited from the project the team helped fund” is irrelevant to liability. Supreme Court reverses the Administrative Hearing Commission’s decision on the assessment and enters the decision that the Commission should have made, which is that appellant team is not liable for the taxes assessed.
The Kansas City Chiefs Football Club, Inc., Appellant, and Jackson County Sports Complex, Intervenor-Appellant, vs. Director of Revenue, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC97730