11:26 AM

Case summaries for June 5 - June 11


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 | Constitutional | Criminal | DWI | Elections | Environmental | Probate | Real Estate | Tax


Appellant Waived Argument Not Available at Trial
Rule requires points relied on to include the standard of review and legal grounds for reversal, which appellant omits, but Court of Appeals rules on the point anyway because appellant’s argument clarifies the points. After trial, the Supreme Court changed the law on appellants’ facts, but that does not excuse appellants’ failure to argue that law to the circuit court, so the argument is waived. Special circumstances supporting an award of attorney fees do not include prevailing at trial or findings unsupported by the record.
Stephen and Cheryl Jacoby, Respondents, vs. The Hamptons Community Association, Inc., et al., Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107875


Revival of Judgment Explained
Upon the filing of a motion to revive judgment, rule provides that the circuit court issues a show cause order to the judgment debtor, who has the burden of proof on the only defenses: the existence of a judgment, timely filing of the motion, service of the motion, and satisfaction on the judgment. Statutory presumption of payment “after the expiration of ten years from the date of the original rendition” does not apply to a motion for revival of judgment.
Capitol Financial Group, LLC, Assignee of Bank of America, N.A., Appellant, vs. David C. Bray, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108066

No Registration for Judgment from India
Statutes provide for registration of final judgments from jurisdictions entitled to full faith and credit, which includes the United States and its States and Territories of the United States, entered after due process. Circuit court dismissed appellant’s petition for dissolution of marriage, based on an unauthenticated and unregistered temporary injunction from a court in India, without allegations as to the process that produced it. Reversed and remanded to dispose of matters within the circuit court’s jurisdiction, including the status of marriage, and property in Missouri.
Kamesh Kumar Ramalingam, Appellant, vs. Vidyarthini Kumaresan, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108062

Must Allow Amended Pleading to Allege Standing
Defendant’s motion to dismiss for lack of standing included matters outside the pleadings showing that petitioner had not yet received her appointment as personal representative for decedent’s estate. Petitioner responded with an amended pleading showing the appointment had, by that time, occurred. Circuit court dismissed for lack of jurisdiction, based on lack of standing, without granting leave to amend. That ruling was reversible error because, on a motion to dismiss, circuit court cannot consider matters outside the pleadings without applying the rule on summary judgment and giving the parties notice; appointment as personal representative is a matter of capacity, not standing, waived by defendant’s failure to raise it; and neither standing nor capacity are necessary to confer jurisdiction on circuit court. Dismissing a petition on grounds that petitioner already refuted subverted justice.
Carolyn Holmes, Personal Representative for the Estate of Robert V. Holmes, vs. Union Pacific Railroad Co.
(Overview Summary)
Missouri Court of Appeals, Western District - WD82867


Public Defender Relief Statutes Okay
Supreme Court’s jurisdiction over constitutional challenges is exclusive only as to challenges that constitute a “real and substantial, not merely colorable [,]” argument that a provision of law directly violates a constitutional provision. Courts have inherent power and duty over practice before them, their dockets, and representation of indigent defendants in criminal actions. Statutes govern the courts’ exercise of their inherent power as long as the statute is neither unreasonable nor “hostile to the essence of the inherent power.” Statutes governing relief for public defenders provide a procedure to determine whether effective representation by specific public defenders requires the circuit court to order relief. The circuit court did not err in examining the operations of an entire area office of the Public Defender system. The circuit court did not err in finding historical caseload statistics more persuasive than other evidence. Those statutes do not provide declaratory relief on constitutional challenges, so a challenge to the constitutionality of those statutes within that statutory procedure is not a real and substantial challenge. Circuit court’s exercise of an inherent power is subject to review for abuse of discretion.
In Re: Area 16 Public Defender Office III Ruth Petsch vs. Jackson County Prosecuting Attorney's Office
(Overview Summary)
Missouri Court of Appeals, Western District - WD82962


No Plain Error Review
During sentencing phase, circuit court received testimony without objection from defendant, that defendant will be dangerous in the future, and that defendant deserves at least the maximum sentences that the law provides. “Sua sponte action should be exercised only in exceptional circumstances [because u]ninvited interference by the trial judge . . . risks injecting the judge into the role of a participant and invites trial error.” Court of Appeals presumes that circuit judged ignored inadmissible evidence, and appellant did not show that any manifest injustice or miscarriage of justice occurred, so Court of Appeals declines plain error review.
STATE OF MISSOURI, Plaintiff-Respondent v. MICHAEL GILES, JR., Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36122


Innocent Explanations Do Not Negate Probable Cause
On judicial review of a license suspension by the Director of Revenue, the Director’s elements include information that the driver was driving with blood alcohol concentration. The information must rise to the level of probable cause, meaning that the information represents “a fair probability” in the eyes of “a prudent, cautious, and trained police officer [.]” The absence of some signs of intoxication does not negate the presence of others, and “innocent explanations for [driver]’s behavior” do not negate the facts that establish probable cause. Judgment restoring driving privileges reversed with directions to affirm suspension.
Missouri Court of Appeals, Southern District - SD36355


Medicaid Initiative Petition Okay
Whether the proposition violates any constitutional provision is subject to determination only after the election, if the proposition passes, and such a determination is unripe until then. “Pre-election review of the constitutionality of an initiative petition is limited” to threshold issues of whether the initiative petition meets the constitutional and statutory requirements for the petition’s form. Matters of form include appropriation by initiative petition more than the proposition will generate, but an estimated fiscal impact does not appropriate revenue, because the General Assembly can still decide how much to appropriate for it. An initiative petition must include the proposed amendment’s full text, but that does not include all other existing provisions impacted by the proposed text.
Jeremy Cady and Ryan Johnson vs. Missouri Secretary of State John Ashcroft, and Heidi Miller and Laura Dominik
(Overview Summary)
Missouri Court of Appeals, Western District - WD83823 and WD83824


Relief Denied on Hazardous Spill
Statutes allow the Department of Natural Resources to require owners of hazardous substances to clean up any spill of which they had any part, but circuit court found that respondent was not the source of “any of the petroleum involved in the hazardous substance emergency.” Statutes do not require the Department to issue its own order before seeking injunctive relief in circuit court. The record supported the circuit court’s denial of an injunction for lack of sufficient evidence that respondent had violated regulations. Statutes require the Department to issue an order and allege a violation of that order before seeking civil penalties in circuit court, and the Department never issued an order, so circuit court did not err in granting a directed verdict against civil penalties.
State of Missouri, Ex Rel., Eric S. Schmitt, Attorney General and Missouri Department of Natural Resources, vs. Zill, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD82850


Benefit to Beneficiary Was Benefit to Trust
Unjust enrichment applies when someone receives a benefit the retention of which would be unjust. Quantum meruit stands on unjust enrichment to provide payment for the type of services for which one ordinarily pays. Counterclaimant’s contributions of labor and capital for a trust’s beneficiary benefited the trust. The remedies in an equitable action may include prejudgment interest for the lost use of money, at the circuit court’s discretion, and the circuit court’s findings support an exercise of discretion against such an award. Circuit court’s independent judgment was manifested in its findings of fact in addition to those set forth in a proposed judgment. The value of counterclaimant’s capital contributions, in the form of assumed loans, had support in the record. But counterclaimant was a family member, whose services are presumptively gratuitous in probate and equitable actions, and rebutting that presumption requires a binding agreement for payment. Such agreement is not within the circuit court’s ambiguous and inconsistent findings of fact. Remanded for further proceedings.
Mignon L. Lambley, Et Al., vs. Kim L. Diehl, Trustee, Et Al
(Overview Summary)
Missouri Court of Appeals, Western District - WD82645 and WD82652

Real Estate

Affidavit Did Not Establish Balance Due
In lender’s action on account, to collect on a promissory note secured by a deed of trust, the elements of the claim included the balance due. In borrower’s action for unjust enrichment, for amounts garnished, the elements included inequitable retention of a benefit. A motion for summary judgment may establish facts by affidavit, but the affidavit must “show affirmatively that the affiant is competent to testify to the matters stated therein [,]” and the matters must be otherwise admissible. Admissible matters include the affiant’s first-hand knowledge and business records accompanied by the statutorily authorized affidavit. An affiant’s position of authority in the lending institution does not—alone—make the affiant’s testimony admissible on the balance due. When movant has the burden of proof on the claim subject to summary judgment, and does not make a prima facie case, by establishing the facts material to that claim, “[the non-movant] does not have to show anything.” Summary judgment for lender reversed.
Gateway Metro Federal Credit Union, Respondent, vs. Dominic Jones, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108286

Escrow Payment Premature
Escrow agreement allowed escrow agent to make periodic disbursements to builder, but required withholding of ten percent to builder, pending buyer’s final approval. In a motion for summary judgment, escrow agent established that buyer authorized a later disbursement that left only four percent in reserve. But in response, buyer testified that she was unaware of an earlier disbursement, raising a genuine dispute as to whether buyer expressly authorized disbursing any of the ten percent reserve. An ambiguous email did not establish ratification of the disbursement because, in summary judgment, inferences must favor the non-movant. Summary judgment, and an award of sanctions, in favor of escrow agent reversed and remanded for further proceedings.
Beth Weisz, vs. Great American Title Q 1-103-1, LLC, a/k/a Great American Title Q 1-103-2, LLC, a/k/a Great American Title of the Ozarks, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD82967


Estimated Assessment Case Transferred
Sales tax statutes allow the Director of Revenue to assess additions to tax when a seller keeps records of sales negligently. Negligence is undefined in the statutes and in case law, and the Court of Appeals has no authority to make such a definition. Transferred to the Supreme Court for resolution of all issues under its exclusive jurisdiction to construe revenue laws.
SEBA, LLC, vs. Director of Revenue
(Overview Summary)
Missouri Court of Appeals, Western District - WD83083