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Case summaries for June 2 - June 8, 2023


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 | Employment | Employment Security | Family | Juvenile | Post-Conviction


No transcript, no appeal 
Rule requires appellant to file the record on appeal, including a transcript, which is indispensable when appellant’s challenges are based on the evidence. “When the appellant fails to compile a complete record on appeal necessary to review the questions presented, ‘this Court has nothing to review.’” A point relied on that does not describe prejudicial error, and without clarification in argument, presents nothing for review. Rules require a description of how appellant preserved error for review, especially as to constitutional challenges, which must be raised at the first opportunity.  
Emilee D. Williams, n/k/a Emilee Corey, Respondent, v. Jason Jai Williams, Appellant, and Katherine Tyler, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111200 

Points defective 
Rules require that a point relied on must – by prescribed format – identify the ruling challenged as erroneous, cite the legal basis for the challenge, and show why the error requires reversal. The argument portion of a brief must re-state the point relied on, recite appellant’s claim of error, and set forth the standard of review. Whether appellant’s claim of error is “against-the-weight-of-the-evidence” or “misapplied-the-law,” appellant’s analysis is insufficient to guide an appellate court toward a reversal. An appellate court does not re-determine facts found in circuit court explicitly or implicitly. 
David L. Jones, Appellant, vs. Impact Agape Ministries, et al., Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110507


Motion to set aside default judgment requires pleading and proof 
Rule allows circuit court to set aside a default judgment on a motion, timely filed, showing a meritorious defense and good cause for the default. Respondent’s motion alleged good cause, but respondent offered no evidence in support, and affiant’s statements were “simply a conclusory reiteration of” the governing rule. Judgment, setting aside default judgment, reversed.  
Behavioral Science Institute, Inc., Appellant, v. Transitional Center, Inc., Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110968

No plain error review of auxiliary services 
Statutes provide auxiliary aids, including a certified interpreter of sign language, on request by a deaf party to any judicial action. In an action to terminate parental rights, appellant deaf parent chose to appear remotely through audio only, with a non-certified interpreter of sign language. Having made no objection under the statutes governing auxiliary aids, appellant did not preserve any challenge for the Court of Appeals. Because appellant does not challenge the evidence or law supporting the judgment, appellant does not allege any manifest injustice or miscarriage of justice, so the Court of Appeals declines plain error review.  
IN THE INTEREST OF: Y.B. and Y.M., minor children under seventeen years of age. GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent v. C.V.B., Respondent-Appellant 
Missouri Court of Appeals, Southern District - SD37863 and S37864


No habeas relief from death penalty on insanity claim 
The Eighth Amendment bars the execution of certain persons, including certain persons with mental illness, but only if their illness prevents them from understanding the link between their offense and their execution. Mental incompetency supports relief by writ of habeas corpus, but no hearing is necessary unless movant meets a “substantial threshold showing of insanity.” “Because [the] petition for a writ of habeas corpus is an original proceeding in [the Missouri Supreme] Court, th[at] Court is the factfinder.” Expert evidence shows that movant rationally understands his execution, in that it will be the result of child murder, and medications have controlled his hallucinations. And the writ of habeas corpus does not address claims already decided, like petitioner’s mental incompetency claim, which would fail anyway. Petition for habeas relief, and accompanying motion to stay execution, denied. 
State ex rel. Johnny A. Johnson, Petitioner, vs. David Vandergriff, Respondent 
(Overview Summary)
Supreme Court of Missouri - SC100077


Disability not shown 
Statutes and regulations bar adverse employment action based on mental impairment. In an action for employment discrimination, summary judgment is rare, because findings of fact often depend on inferences. But plaintiff failed to raise a genuine dispute as to whether he had any substantial limitation in major life activities, showed only temporary difficulties, and did not show any impairment-based inability to perform an essential job function.  
Michael Feldman, Appellant, vs. Patrish, L.L.C., d/b/a Northwest Airport Inn, John Stillwell, Naresh Patel, and Robert Reichenbach, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110737

Employment Security

Misconduct shown 
A claim for benefits is subject to the defense of misconduct connected with work, on which employer has the burden of proof. Statutes define misconduct connected with work to include both a violation of employer rules, even without intention, which a claimant may rebut by showing that the rule was unknown to claimant, unfairly or inconsistently enforced, or unlawful. Evidence that claimant knew about the policies that claimant violated supported a finding that claimant violated the policies knowingly. Credibility is not at issue on appeal.  
Tammy A. Morre, Appellant, vs. Missouri Gaming Commission and Division of Employment Security, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111031


Property division was contrary to settlement 
In an action for dissolution of marriage, the parties co-owned real property, and respondent spouse was a real estate agent. The parties executed a settlement agreement, which provided that respondent would sell real property without commission, and the circuit court incorporated that agreement into its consent judgment. “The circuit court could not thereafter amend or modify that consent judgment and agreement except by consent of the parties to the agreement.” Respondent’s waiver of commission applied to any commission of any type and respondent’s characterization of the commission awarded has no support in the record.  
Leslie E. Cheek, Petitioner-Respondent, v. Kevin R. Cheek, Respondent-Appellant, v. Kaleb Cheek, Third-Party Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110511


Finding against treatment affirmed 
Statutes set forth the factors for determining whether to process appellant under juvenile law or under criminal law, of which the seriousness of the offense charged is primary, followed closely by use of violence and personal injury. Those factors alone supported certification for criminal proceedings, and the circuit court’s careful consideration of other factors showed that no abuse of discretion occurred, including as to the prospects for rehabilitation.   
In the Interest of: D.G.J., Jr. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110993


Movant did not show sub-standard performance 
Movant’s claim, once litigated on direct appeal, is not subject to re-litigation in a motion for post-conviction relief. Trial counsel’s decisions are presumed strategically sound. A decision to make no opening statement was tactically sound, in that it avoided committing the defense to promises that it might not be able to keep, depending on events at trial. A claim for post-conviction relief based on ineffective assistance of counsel has two elements, which are sub-standard performance and resulting prejudice, so failure to prove either one defeats the claim. Inquiry into DNA not found in items that were not used as weapons “would not have aided [the defense]’s position and therefore did not constitute ineffective assistance of counsel. When the jury asked the circuit court about its instructions, the circuit court gave the “safest, most favored response.” No objection to that response would have been meritorious, so the decision to make no objection was a reasonable trial strategy and did not constitute sub-standard performance.  
John Wright III, Appellant, v. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110335