Case summaries for June 3 - June 9, 2022

Administrative | ADR | Appellate | Criminal | DWI | Elections | Employment | Employment Security | Post-Conviction | Real Estate | Workers' Compensation

Administrative

Sunshine Law Does Not Address Ephemeral Messaging    
On a motion for summary judgment, the only facts considered are those established by admissible evidence and not subject to any genuine dispute, as set forth in the numbered paragraphs of the summary judgment motion and response; but the applicable law includes bases other than those argued in the motion. The circuit court’s rulings, limiting discovery, did not constitute an abuse of discretion. The Sunshine Law places the burden on a government agency that public records are lawfully closed. But government agency’s ephemeral messaging applications automatically destroyed messages before appellant requested them, so appellant could not show that any message was a public record, and no Sunshine Law violation occurred when an agency failed to produce them. “[T]he Sunshine Law . . . only requires agencies to disclose existing records – not to create new ones”—while how long agencies must retain records is subject to the Public Records Law, of which appellant described no violation. The Sunshine Law allows closure of State employees’ “[i]ndividually identifiable personnel records” including the Governor’s personal cell phone number. The response to a novel and extensive open records request was timely, reasonable, and sufficiently detailed.    
Ben Sansone vs. Governor of Missouri, et al.    
(Overview Summary)    
Missouri Court of Appeals, Western District - WD84426

ADR

Opportunity to Participate and Challenge Award Was Sufficient    
Statute then in effect provided that an insurer shall have notice and an opportunity to intervene in an action against its insured, between the time that an insured enters into a Mary Carter agreement and the circuit court enters judgment. But the insurer must take the action as the insurer finds it, which was after an award issued from arbitration, and after judgment confirming the arbitration award. “[Insurer] enjoyed no rights under [statutes] until it became a party to the action, and the [circuit] court was not required to allow [insurer] to intervene prior to entering judgment confirming the award. Insurer had “the opportunity to participate and defend its interests—including the ability to challenge liability and damages—by entering a defense of [i]nsured . . . without reservation and thus to litigate such matters, but chose not to do so . . . and instead denied coverage and refused to defend [, and] initiated a declaratory judgment action in federal court seeking a determination as to its obligations under the insurance policy, [which] provides yet another forum in which [insurer] may defend its interests.”    
M.O. vs. Geico General Insurance Company and Government Employees Insurance Company    
(Overview Summary)    
Missouri Court of Appeals, Western District - WD84722

Appellate

Rules Guide Preservation    
Preserving an issue for review includes making it understandable to the respondent and the appellate court, by setting forth the relief sought and the reasons supporting it, in the formats prescribed by rule for a point relied on and argument. An appellate court can supply none of that so, on the omission from appellant’s brief of those components, the Court of Appeals must dismiss the appeal.     
Samantha J. Freeland vs. Division of Employment Security    
(Overview Summary)    
Missouri Court of Appeals, Western District - WD84955

Judgment Not Final    
Statutes and rules determine the Court of Appeals’ jurisdiction, and require a judgment certified for appeal or disposing of all parties as to all claims. An action for equitable garnishment included plaintiff’s claim against defendant, plaintiff’s claim against defendant’s insurer, and defendant’s cross-claim against defendant’s insurer. A judgment addressing only one of those claims, and not certified for appeal, is not subject to appeal. Dismissed. 
Sylvia Norman vs. Progressive Preferred Insurance Company    
(Overview Summary)    
Missouri Court of Appeals, Western District – WD84634 

Weight of the Evidence Discussed    
When appellant argues that a ruling is against the weight of the evidence, appellant may reference evidence contrary to a challenged ruling, either requiring no credibility determination or resolving credibility determinations as the circuit court did. “This is so because the consideration of evidence contrary to the judgment differentiates an against-the-weight-of-the-evidence challenge from a not-supported-by-substantial-evidence challenge, which only considers the evidence favorable to the judgment.” Appellant referenced exhibits contrary to the challenged ruling, requiring no credibility determination, but did not file them as part of the record on appeal. Appellant failed to support the challenge, so the Court of Appeals affirms the judgment.       
IN THE INTEREST OF D.N.D., GREENE COUNTY JUVENILE OFFICE, Respondent vs. H.D.W., Appellant    
Missouri Court of Appeals, Southern District - SD37371

Recording Malfunction Requires New Hearing    
An appellant “is entitled to a full and complete transcript for the appellate court's review” and, when none is available due to no fault of appellant, the remedy is a remand for another trial. A certified court reporter stated that an equipment malfunction caused omission of a “significant portion” of the evidentiary hearing, on which the circuit court based the judgment appealed, from the transcript. Remanded for new trial.    
IN THE INTEREST OF L.A.M.M. Minor GREENE COUNTY JUVENILE OFFICE, Respondent vs. C.M.M., Appellant    
Missouri Court of Appeals, Southern District - SD37486

Criminal

Disclosure Demanded Prematurely    
Rule requires disclosure on the filing of charging instruments, which includes a witness list for an indictment or information, but not for a felony complaint. On a felony complaint, at a preliminary hearing before the filing of an indictment or information, the circuit court dismissed the complaint for failure to file a witness list. That ruling constituted a final judgment, and plain error, so the Court of Appeals reverses the judgment and remands the action to circuit court for further proceedings.    
State of Missouri vs. A.S.    
(Overview Summary)    
Missouri Court of Appeals, Western District - WD84641

Disclosure Demanded Prematurely    
Rule requires disclosure on the filing of charging instruments, which includes a witness list for an indictment or information, but not for a felony complaint. On a felony complaint, at a preliminary hearing before the filing of an indictment or information, the circuit court dismissed the complaint for failure to file a witness list. That ruling constituted a final judgment, and plain error, so the Court of Appeals reverses the judgment and remands the action to circuit court for further proceedings.    
State of Missouri vs. Muriel Jackson-Kuofie    
(Overview Summary)    
Missouri Court of Appeals, Western District – WD84639

Life-Long Registration No Longer Required    
The Missouri Sex Offender Registration Act specifies who must register with a Missouri registry, but says nothing about the duration of that registration, which was subject to the Act’s other provisions. Those provisions were amended to change duration from life to a term of years, and provide a procedure for removal from the registry, for some persons. Those persons include appellant. Reversed and remanded to remove appellant’s name from the registry without delay.    
Gary Nelson Ford, Appellant, vs. Col. Jon Belmar, Chief of Police as Chief Law Enforcement Officer of St. Louis County, Pursuant to County Charter, and Jim Buckles, Sheriff of St. Louis County as "Chief Law Enforcement Official" as Defined by RSMo 589.404(3), Respondents.    
(Overview Summary)    
Missouri Court of Appeals, Eastern District – ED109958

Life-Long Registration No Longer Required    
The Missouri Sex Offender Registration Act creates a Missouri registry, and requires registration of specified persons, including any person ever required to register with the Missouri registry under the later-enacted United States Sex Offender Registration and Notification Act. Those provisions do not set the duration of registration. Amendments to the United States Act and the Missouri Act classified offenses into three tiers, and amendments to the Missouri Act changed registration for appellant’s offense from life to a term of years and provided for removal from the registry. Those provisions apply even to a person required to register under the United States Act. “In short, we see nothing in the plain language of [the Missouri Act] that indicates the General Assembly intended to impose a lifetime registration obligation on tier I and tier II sex offenders [.] Reversed and remanded to remove appellant’s name from the registry without delay.    
Brock Smith, Appellant, vs. St. Louis County Police, et al., Respondent.    
(Overview Summary)    
Missouri Court of Appeals, Eastern District – ED109734

Felon in Possession Conviction Affirmed    
Evidence that a firearm was an inch away from driver supported an inference that driver knew the firearm was there, and knew what it was, supporting a finding that felon driver possessed the firearm.” [I]nferences contrary to the trial court's judgment” are irrelevant. Conviction affirmed.    
STATE OF MISSOURI, Respondent vs. PAUL MICHAEL BILSKEY, Appellant    
Missouri Court of Appeals, Southern District – SD37241

DWI

Enhanced Conviction Affirmed  
On review of a conviction, an appellate court does not weigh the evidence, so evidence that a breath testing machine may have read too high—already rejected implicitly by circuit court—cannot prevail. Statutes enhance the current offense for prior intoxication-related traffic offenses as defined at the time of the current offense, not at the time of the prior offenses. Conviction affirmed.  
STATE OF MISSOURI, Respondent vs. SANDRA K. BENSON, Appellant  
Missouri Court of Appeals, Southern District – SD37023

Elections

Injunction Unripe Until After Election 
City passed a re-zoning ordinance, and scheduled a referendum for repeal of the ordinance, as provided by city charter. The charter provides that the ordinance is effective pending the referendum, giving the property owner a contingent right under the ordinance, and the ordinance might survive the referendum. So the property owner suffers no injury before the referendum, and no injury after the referendum, unless the ordinance fails the referendum. Only then could there be any dispute to decide. That is why pre-election judgments only examine the procedure that brings an issue to the ballot, which is not at issue, and eschew substantive discussions of things that may never occur.    
ELEVATION ENTERPRISES, LLC,, Plaintiff-Respondent vs. CITY OF SPRINGFIELD, MISSOURI, et al., Defendants-Respondents GALLOWAY VILLAGE NEIGHBORHOOD ASSOCIATION, et al., Intervenors-Appellants    
Missouri Court of Appeals, Southern District – SD37129

Employment

Right-to-Sue Letter Mandated    
The Missouri Human Rights Act authorizes the Missouri Commission on Human Rights to investigate complaints and prosecute violations of the Act. The Act requires the Commission to complete its investigation within 180 days of receiving a complaint, after which the Commission loses all authority except to issue a right-to-sue letter to the complainant, if the complainant requested a right -to-sue letter. The request for a right-to-sue letter before that time is not premature. The duty is ministerial and unresolved issues, like whether the Commission has authority over the facts as alleged, are irrelevant. Circuit court did not err in issuing a writ of mandamus requiring the Commission to issue a right-to-sue letter.    
State of Missouri ex rel. Meredith Green vs. Missouri Commission on Human Rights, et al.    
(Overview Summary)    
Missouri Court of Appeals, Western District – WD84592 and WD84605 

Employment Security

Hearsay Objection Implied    
When the employer raised the defenses that claimant voluntarily quit without good cause, and committed misconduct by absenteeism, claimant negated those defenses with evidence of a layoff. Hearsay evidence, that employer scheduled claimant for shifts—after reducing claimant’s hours to zero—was not substantial and competent evidence when objected to, and a hearsay objection to employer’s evidence was implicit in claimant’s testimony. And, even if employer scheduled claimant, no evidence showed that claimant had notice of such scheduling. The decision denying benefits stands on conclusions of law unsupported by, or contrary to, undisputed evidence.    
Suzanne Koenen, Appellant, vs. BRG Liberty, LLC, and Division of Employment Security, Respondents.    
(Overview Summary)    
Missouri Court of Appeals, Eastern District – ED110045 

COVID-19 Negated Voluntary Quitting    
Statutes deny benefits when claimant has voluntarily quit without good cause, meaning that claimant at least “impliedly rejects the employment and the employer by some action such as failing to provide notification of the absence.” Notification of absence occurred when claimant informed a supervisor of illness with COVID-19, and the record shows no other requirement, only repeated attempts by claimant to return to work. “[T]he overwhelming weight of the evidence in the record is that [c]laimant is unemployed through no fault of his own.” Remanded to award benefits.    
George Chavis, Appellant, v. Wal-Mart Associates, Inc., and Division of Employment Security, Respondents.    
(Overview Summary)    
Missouri Court of Appeals, Eastern District – ED110016 

Post-Conviction

No Ineffective Assistance of Counsel Claim on a Condition of Probation    
Movant’s amended motion argued that counsel was ineffective for failure to object to a condition of probation. Probation is neither a conviction nor sentencing, which are the only procedures from which rule provides relief based in ineffective assistance of counsel, so the circuit court did not err in denying the motion without a hearing. Relief from an unlawful condition of probation, like attachment of Social Security payments, is available by writ.    
Layette C. Williams, Appellant, vs. State of Missouri, Respondent.    
(Overview Summary)    
Missouri Court of Appeals, Eastern District – ED109960 

Real Estate

Definitional Dispute No Bar    
The meaning of a provision of law is a matter of law, not an issue of fact, so no dispute as to that meaning can prevent summary judgment. City ordinance governed solar panels mounted on a roof, which included appellant’s structure, according to the ordinances’ definition. The ordinance applied without regard to whether the panels were connected to structure’s wiring, so that such a connection existed was not a material fact, and a dispute on that matter did not prevent summary judgment. City ordinance required construction to be workmanlike, and undisputed evidence, that construction was not “professional,” entitled the city to prevail on an ordinance violation in defense of a claim for inverse condemnation.      
DMK Holdings, LLC, Appellant, v. City of Ballwin, Respondent.    
(Overview Summary)    
Missouri Court of Appeals, Eastern District – ED110153

Bank Had No Fiduciary Duty  
In the course of a foreclosure on real estate, borrowers sued lender and successor trustees for breach of fiduciary duties. “[A]bsent other evidence of a fiduciary relationship, there is no such relationship between a bank as lender and its customer as borrower.” Without a duty, there is no breach, no liability, and no resulting damages actual or exemplary. Summary judgment for respondent affirmed.  
CARMEN E. WOOD (f/k/a Carmen E. Ready), an individual and in her capacity as Trustee of the Donald J. Ready and Carmen E. Ready Revocable Living Trust dated November 19, 2009, Plaintiff-Appellant vs. BANK OF AMERICA, N.A., Defendant/Respondent and MILLSAP & SINGER, P.C., Defendant 
Missouri Court of Appeals, Southern District - SD37340 

Workers’ Compensation

Post-Termination Retaliation Case Transferred    
Statutes governing workers' compensation are subject to strict construction. Those statutes provide that an employer is liable for discrimination based on assertion of workers’ compensation rights by “any employee.” After appellant’s workers’ compensation claim, respondent refused to hire appellant. Appellant was thus not in respondent’s employ, and therefore not strictly “any employee” under the unambiguous statutory definition, when the refusal occurred. Transferred.    
John Lisle vs. Meyer Electric Co., Inc.    
(Overview Summary)    
Missouri Court of Appeals, Western District – WD84620