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Case summaries for June 9 - June 15, 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 | Business | Criminal | DWI | Evidence | Juvenile | Legislative | Miscellaneous Actions | Personal Injury


Motion for new trial necessary in bench trial 
In a bench trial, a party can preserve an issue for appellate review, even if not presented to the circuit court, by including it in a motion for a new trial or a motion to amend the judgment. But the motion must describe the charged error with sufficient specificity for the circuit court to understand without resorting to the record. Appellant must raise the omission of statutorily required findings of fact in a motion to amend the judgment. Rules of appellate procedure require appellant’s point relied on to cite legal grounds for reversible error and match the associated argument portion. The statement of facts must be unbiased and refer to the record.  
Nicole E. Williams, Respondent, vs. Bryan L. Williams, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110866

Briefing deficiencies preclude review 
To assure judicial neutrality, rules of appellate procedure are binding on all parties, including those acting pro se. The statement of facts must be free of argument, and points relied on must not be multifarious, so that all parties and the courts have notice of the issues. Failure to comply with those rules leaves nothing for the Court of Appeals to review.  
Donald Placke, Jr., Appellant, vs. The City of Sunset Hills, Missouri, City of Sunset Hills Board of Adjustment, Patricia Fribis, Ryan Patton, and William Weber, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110799

Failure to persuade at trial is incurable on appeal 
In an action to quiet title, each party has the burden of proving that their title is superior to all other parties’ title. “[E]vidence never proves any element until the fact-finder says it does[,]” and the fact-finder need not believe any evidence. Implicit in the circuit court’s judgment against appellants’ claim as bona fide purchasers is a credibility determination against appellants. An appellate court does not disturb that determination. No evidence is necessary to make or affirm a judgment for the party with no burden of proof. Any matter that was, or could have been, litigated before appeal is barred on remand by the law of the case. 
Missouri Court of Appeals, Southern District - SD37733  


Receivership Act discussed 
The Missouri Receivership Act required that appellant receive seven days’ notice before the appointment of a receiver but did not require an opportunity to be heard pre-deprivation. No pre-appointment hearing was required, because the appointment did not finally deprive appellant of property, respondent also had rights in the property, and the circuit court provided post-appointment hearings, including before final deprivation of property. In denying the motion to vacate the appointment, no abuse of discretion occurred, because the record shows that the circuit court considered respondent’s motion to appoint a receiver based on the evidence then before it. That evidence showed multiple grounds for appointing a receiver as listed in the Act. The order appointing the receiver delegated authority subject to circuit court supervision in accordance with the Act.  
Patriots Bank, Respondent, vs. Black River Motel, LLC, et al., Appellants. 
(Overview Summary) 
Supreme Court of Missouri - SC99567


Judgment rendered upon pronouncement and imposition of sentence 
Statute starts the time for appeal of a criminal judgment when “final judgment is rendered [.]” A final judgment is a judgment that disposes of all issues as to all parties. That occurs in a criminal case upon the imposition and pronouncement of sentence. Pronouncement of sentence must, by rule, occur in the defendant’s presence, so that judicial act by a circuit judge constitutes the event that starts the time for filing a notice of appeal. Rule and statute also require an entry of a written judgment into the record, but that is the circuit clerk’s ministerial act, and requires no judge’s signature in a criminal action. The absence of a written judgment has no effect on the judgment, or the right of appeal, though it might require remand. Rule sets a deadline by which to file a motion for new trial, and allows an extension, but appellant’s amended motion for new trial was filed beyond the deadline even as extended, and so is a nullity. And, even if preserved, appellant’s amended motion for new trial sought relief based on newly discovered evidence, but only offered impeachment and was unlikely to alter the outcome, so denying the motion was not plain error. Circuit court did not plainly err in admitting expert testimony on delayed reporting by child victims of sexual abuse generally.  
State of Missouri vs. Jarrad Ryan Vandergrift 
(Overview Summary) 
Supreme Court of Missouri - SC99913

Separate offenses support cumulative sentences 
Double jeopardy bars multiple punishments for a single offense, but one set of facts may constitute multiple offenses, depending on the General Assembly intent as shown in the language of the statutes. When defendant can commit one offense without committing the other, the punishments for both may apply, cumulatively. Appellant’s possession of crack supported sentences for possession of a controlled substance, and for unlawful possession of a firearm, because a person may commit unlawful possession of a firearm by possessing a firearm in circumstances other than while possessing a controlled substance.  
State of Missouri, Respondent, vs. Sylvester Onyejiaka, Jr., Appellant. 
(Overview Summary) 
Supreme Court of Missouri - SC99871

Instructions in multiple acts case okay 
Constitutional provisions protect the right to a unanimous verdict in a criminal case, which is under threat when, in a single count alleging multiple distinguishable incidents, the instructions allow jurors to agree that defendant is guilty even when they differ as to which incident occurred. Defendant objected based on failure to distinguish incidents by time in circuit court, but suggests other distinguishing details on appeal, so the objection is unpreserved but reviewed ex gratia. The standard is a reasonable likelihood that the jury misapplied the instruction. The threat to jury unanimity—that jurors will find defendant guilty based on different incidents—is less when the incidents are indistinguishable in details, like specific conduct and location, and happened within a short time. “The concern in jury unanimity cases is that jurors will find guilt without substantially agreeing to the same underlying criminal act [;]” but when all acts charged are the same, including the same conduct in a different place, that concern is absent. The preferred method for instructing a jury in a multiple acts case is a special unanimity instruction. 
State of Missouri, Respondent, vs. John A. Hamby, Appellant. 
(Overview Summary) 
Supreme Court of Missouri - SC99554

Retraction of jury trial waiver denied, affirmed 
Appellant waived jury trial, appellant’s public defender took a job with the prosecutor’s office, and appellant declined new representation. Six months later, on the eve of trial, appellant asked to withdraw his jury waiver. No conflict of interests occurred because appellant’s public defender never represented conflicting interests. The record shows that the circuit court considered the hardships that granting the withdrawal would cause on the judicial system, so no abuse of discretion occurred, when the circuit court denied appellant’s request.  
STATE OF MISSOURI, Plaintiff-Respondent v. LONNIE JAMES SKELTON, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37596

Verdict director okay for unlawful use of a weapon 
On a charge of burglary in the first-degree, by unlawfully entering victim’s dwelling “for the purpose of committing unlawful use of a weapon therein [,]” the verdict director must define unlawful use of a weapon. Unlawful use of a weapon has no definition in Missouri Approved Instructions, so the State offered a definition that tracked the statutory elements, and further detail was unnecessary. Acquittal on the offense, of which appellant had the purpose of committing when making an unlawful entry, is irrelevant.  
STATE OF MISSOURI, Respondent v. KEITH H. BROWN, Appellant 
Missouri Court of Appeals, Southern District - SD37168


Preliminary breath test supports probable cause 
On appeal to the circuit court, from the Director of Revenue’s decision to suspend a driver’s license for driving while intoxicated, the elements that the Director must show include an arrest of driver on probable cause to believe that driver committed an alcohol-related offense. Statute provides that evidence supporting probable cause includes a preliminary breath test. Circuit court admitted that evidence for that limited purpose. No evidence of the administering officer’s expertise is necessary, and the law presumes that the circuit court used that evidence only for the purpose described by statute, like any other evidence. Even in the statute’s absence, the preliminary test and other evidence expressly found credible supported a finding of probable cause, which is a far lesser standard than guilt beyond reasonable doubt.  
David Prior Wilmoth, Appellant, vs. Director of Revenue, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99655


No plain error review of strategy 
When defense counsel makes a strategic decision to allow the entry of objectionable evidence, and the circuit court does not bar that evidence sua sponte, no plain error occurs. The record shows a defense strategy of allowing uncharged bad acts into evidence to undercut the allegations against defendant. Court of Appeals denies plain error review. 
State of Missouri, Respondent, v. Gerardo Gonzalez, Sr., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110580

No prejudice shown  
When the prosecution merely states the law on defendant’s right not to testify, no mistrial is automatically required, especially when all venirepersons state that they will draw no adverse influence from defendant’s silence.  No prejudice resulted from the exclusion of defendant’s evidence, that a diabetic crisis caused him to be confused, when other evidence showed that no such crisis occurred during defendant’s confession. No prejudice resulted from the exclusion of evidence that did not negate an element of the offense charged and did not impeach victim’s testimony.  
State of Missouri, Respondent, v. Adam Craft, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110314


Timing of disposition order's finality transferred 
Juvenile appealed from a determination of liability for restitution. Juvenile statutes provide that circuit court may issue a dispositional order that requires the payment of restitution while deferring the amount of restitution for later determination after a hearing. “Assessing finality in juvenile proceedings is markedly dissimilar from evaluating finality in general civil law[.]” The dispositional order of restitution and the order setting the amount due are each final and subject to appeal. The appeal from the dispositional order determining liability for restitution was late so the appeal must be dismissed.  
In the Interest of: P.D.E., Appellant, vs. Juvenile Officer, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99896


Conservation’s purchases and payments protected 
The Missouri Constitution’s provisions for the separation of powers provide that “the General Assembly ‘may not use its appropriation authority to encroach on powers vested solely in the separate, coequal branches of government.’” The Missouri Constitution also provides that the Conservation Commission may use its dedicated sales and use tax proceeds to buy land and make payments in lieu of tax to political subdivisions. Therefore, the General Assembly and the Office of Administration have no authority to restrict the Commission’s access to, or use of, those funds for those purposes.  
Conservation Commission and Missouri Department of Conservation, Respondents, vs. Andrew Bailey, in his Official Capacity as Attorney General of Missouri, and Ken Zellers, in his Official Capacity as Commissioner of the Office of Administration, Appellants. 
(Overview Summary) 
Supreme Court of Missouri - SC99092

Miscellaneous Actions

No justiciable issue for declaratory judgment  
Developer’s interests transferred through a series of deeds to current owner. Developer obtained a judgment reforming the deed of transfer to specifically mention developer’s rights. To void that reformation, appellants sought a declaratory judgment, which the circuit court denied, because the developer had also separately specifically conveyed developer rights directly to the current owner. That direct transfer left appellants with no justiciable issue as to the reformation. Appeal dismissed.  
Ronald D. Ruff, et al., Appellants, vs. Bequette Construction, Inc., et al., Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110707

Personal Injury

Signature required for med mal affidavit 
Statute governing actions for negligence by a health care provider requires an affidavit supporting the merit of a petition’s claim. That statute governs any claim for negligence in a healthcare provider/patient relationship regardless of plaintiff’s characterization as ordinary negligence in failure to supervise. The affidavit requirement does not constitute an unconstitutionally unreasonable barrier to the courts. An affidavit is “a written statement or declaration, sworn to before some officer authorized by law to administer oaths, and signed at the end by the affiant” so “an unsigned affidavit is no affidavit at all.” Rule allowing prompt correction of a missing signature does not apply. The absence of a signature is not subject to correction by an order nunc pro tunc, because an order nunc pro tunc only conforms the court’s records to what happened, while plaintiff sought a substantive change to the judgment of dismissal.  
Jimmy D. Cook, Appellant, vs. Parkland Health Center, et al., Defendants, and Dr. Lawrence Brown, et al., Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111044

Affirmative converse instruction explained 
Ordinarily, plaintiff’s verdict director submits ultimate issues to the jury and defendant’s converse instruction negates the ultimate issues. When plaintiff’s verdict director omits an ultimate issue, defendant’s affirmative converse instruction may submit that ultimate issue, if the instruction has support in the evidence. A mental health care provider/patient relationship is a special relationship in which, when the patient is a foreseeable perpetrator of harm against a readily identifiable victim, the provider has a duty to the victim. In child victim plaintiff’s action for negligence against defendant providers, plaintiff alleged harm by the provider’s patient, and plaintiff offered instructions accordingly. But the provider has no duty when the perpetrator is not provider’s patient, as defendants alleged, and offered supporting evidence. Evidence of a criminal conviction was admissible. Entry of hearsay testimony, remedied as requested, was not reversible. Cumulative evidence is not prejudicial. Therefore, an ordinary converse instruction would be inadequate, and defendants were entitled to an affirmative converse instruction. Such an instruction has express authority in the Missouri Approved Instructions, like an intervening cause instruction, so it does not constitute a forbidden “sole cause” instruction. Plaintiff did not preserve a challenge to the instruction as a roving commission and, even if plaintiff preserved that issue, plaintiff would not prevail because the instruction was clear.  
Tyler Hollis, a Minor By and Through His Next Friend, Mother and Conservator, Karen Hollis, Appellant, vs. Poplar Bluff Regional Medical Center, LLC, et al., Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110884