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Case summaries for June 10 - June 16, 2022


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 | Evidence | Personal Injury | Post-Conviction | Real Estate | Workers' Compensation


Faulty Brief Requires Dismissal 
Rules govern components of appellant’s brief. Statement of facts must be fair. Statement of facts and argument must include references to the record. Points relied on must argue why reversal is necessary and cite supporting authorities. Failure to comply reduces an appellate court to speculation as to appellant’s theory, which an appellate court must not do, so the Court of Appeals dismisses the case. 
T.G., Respondent, v. D.W.H., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109977 

Arguments Must Follow Formulas 
When arguing that the circuit court misapplied the law, appellant must stand on the facts as the circuit found them, and the appellate court must disregard contrary inferences. “Moreover, by relying upon the purported facts and inferences contrary to the judgment in its argument, the [appellant] pivots from the misapplied-the-law challenge raised in its point to a not-supported-by-substantial-evidence challenge [,]” which must follow a prescribed analysis. Failing to follow the prescribed analysis for either theory deprives the argument of analytical value, and the appellate court must affirm the judgment. 
ESTATE of BILLIE W. COLLINS, by and through its personal representative SHANNON COLLINS, Appellant vs. FRANCES L. COLLINS, Respondent 
Missouri Court of Appeals, Southern District – SD37185 and SD37286              

No Liability, No Standing 
Statute gives a party aggrieved by a judgment standing to appeal the judgment. Circuit court found defendant liable for damages to respondent, but the amount was more than covered by amounts already paid into the circuit court’s registry by a co-defendant, so defendant was not aggrieved. Appeal dismissed. 
DONCO 3 CONSTRUCTION, LLC, Plaintiff-Respondent v. CONWAY CONTRACTING, INC., Defendant-Appellant and DAVID JONES CONSTRUCTION, LLC, et al,, Defendants 
Missouri Court of Appeals, Southern District – SD36897


Registration of Foreign Judgment Okay 
The United States Constitution requires Missouri to give full faith and credit to a foreign judgment, so Missouri courts presume that a foreign judgment stands on subject matter jurisdiction and personal jurisdiction, and on the laws of the issuing State. Appellant, challenging the registration of respondent’s Texas judgment, had the burden of proving a lack of subject matter jurisdiction, or a lack of personal jurisdiction, or procurement by fraud. As to personal jurisdiction, Missouri courts determine the facts relevant under Texas law, which include United States Constitutional principles and the Texas long-arm statute. Under that statute, Texas courts have jurisdiction over a person who has availed themselves of the benefits of Texas jurisdiction. Evidence believed by the circuit court supported findings that appellant traveled to Texas, and purposefully made misrepresentations in Texas as part of executing a contract in Texas, which required appellant to perform obligations in Texas, and received payment in Texas. The United States Constitution requires that such contracts satisfy traditional notions of equity and fair play, which they do, because appellant already traveled to Texas where the State has an interest in determining the rights of its residents. 
Missouri Court of Appeals, Southern District – SD37327


Propensity Evidence Discussed 
The wording of an initial pleading did not bind the State when appellant made no objection and offered converse instructions based on later amendments. Error in an evidentiary ruling is prejudicial when a correct ruling made a different verdict reasonably probable. The Missouri Constitution sets forth the standard for admitting propensity evidence. Preservation of an issue for appeal determines the standard of review on appeal. Preservation requires an objection during trial, for which a pre-trial objection does not substitute, and “[c]ontinuing objections based upon considerable pretrial hearings may not fully convey a party’s exact concerns at the time testimony is offered.” A constitutional objection must include a citation to a specific constitutional provision. A “minimum amount of competency was enough to garner plain error review.” Plain error requires a threshold showing of manifest injustice or a miscarriage of justice, which appellant cannot show, because the circuit court’s instruction confined the jury to determining the offenses charged and not the uncharged offenses. Propensity evidence supported “fleeting, brief, and isolated comments” during closing argument, which described the appellant as a serial offender, so the circuit court did not err in overruling the defense’s objection. Statute governing the foundation required for admission of expert testimony provides that education and experience, such as the State’s expert on delayed disclosure had, are sufficient. The circuit court did not err in assessing the relative probity and prejudice of exhibits illustrating sexual contact. Evidence, including the unsophisticated description of a child victim, was sufficient to support a conviction for deviate sexual intercourse. 
State of Missouri, Respondent, vs. Daviune C. Minor, Appellant. 
(Overview Summary) 
Supreme Court of Missouri - SC99469

Rationale Required for Denial of Probation After 120-Day Program 
Statute allowed diversion of relator to a 120-day program. When relator successfully completed the program, statutes required the circuit court to order probation, unless the circuit court determined that probation would be “inappropriate.” That determination required findings of fact based, at least in part, on post-diversion evidence. Circuit court denied probation based solely on the charges to which relator pleaded guilty. “The circuit court was aware of the nature of the charges against [relator] when it accepted the State’s recommendation to” divert relator into a 120-day program. “Here, in direct contravention of case law, the [circuit] court very plainly indicated that its decision to deny probation was based solely on the nature of [relator]’s underlying charges and pre-sentencing evidence.” Writ of mandamus issues to release relator on probation. 
State of Missouri ex rel. Rashad P. Washington vs. The Honorable Kevin Crane, Circuit Court Judge 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85356 


Ordinances Not Subject to Notice 
A juvenile action is a civil procedure, but has the protections of criminal procedure, including the State’s burden to prove a violation of law. Municipal ordinances are not subject to judicial notice and must be in evidence, which can happen by maintaining a copy on file with the circuit court for public inspection, or by bringing the entire municipal code into circuit court for the circuit court to read the cited provision, or by entering a certified copy of the cited provision into the record. Because none of those happened, and double jeopardy prevents a new trial, the Court of Appeals enters a judgment of acquittal. 
In the Interest of: S.R.W. vs. Juvenile Officer 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84938 

Personal Injury

Affidavit of Merit Statute is Constitutional 
The Missouri Constitution also prohibits enactment of a law retrospective in its operation, but that “does not apply to purely procedural statutes.” The statute requiring courts to dismiss a medical malpractice action for failure to timely file an affidavit of merit does not violate the Missouri Constitution’s separation of powers provision. That requirement was within the subject clause of the bill that contained it, which addressed only the single subject of “claims for damages and the payment thereof,” and that title was clear. The statute sets the time limit for filing an affidavit of merit, and a means of calculating the running of time, to the exclusion of the rule for calculating time. The failure to comply with the affidavit of merit requirement is not an affirmative defense. Filing out of time is not substantial compliance. 
Alfred J. (A.J.) Giudicy, Appellant, vs. Mercy Hospitals East Communities f/k/a St. John's Mercy Medical Center, and Michael J. Chehval, M.D., Respondents. 
(Overview Summary) 
Supreme Court of Missouri - SC99249


Prejudice Explained 
Trial counsel’s duty to be effective relates only to a fair trial, not to an appeal, so failing to preserve an issue for appeal does not show ineffective trial counsel. Trial counsel did not proffer the correct instruction for the lesser included offense of voluntary manslaughter on the record, but that goes only to preservation of instructional error, which matter only on appeal and so does not support a claim of ineffective trial counsel. And, in any event, the record from the evidentiary hearing on the motion supports a finding that trial counsel did offer the correct instruction. An instruction is due on request when substantial evidence supports it. The evidence presented by trial counsel supported a reasonable theory of self-defense, but not under statutes eliminating the duty to retreat and codifying the Castle Doctrine. The absence of a request for a Castle Doctrine instruction did not show that trial counsel was ineffective. And, as to either instruction, proving prejudice required movant to show that the absence of such instructions created a reasonable probability of a different result. Movant cannot do so because the statutes do not apply when the victim’s “threat of unlawful force has subsided” as when defendant applied deadly force while the victim was unconscious. Denial of post-conviction relief affirmed. 
Christopher Sanders vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84478 

Real Estate

Parties Granting Easement Not Necessary 
Statute governs the establishment by strict necessity of a private road to access plaintiff’s land over land of defendants. Defendants were the only persons denying access because plaintiffs had the grant of an easement from all other landowners, so no easement by strict necessity was needed from such other landowners. Those other landowners were not necessary parties to the action, so failure to join them did not require dismissal, and the circuit court did not err in denying a motion to dismiss that was based on failure to join necessary parties. The order denying the motion to dismiss was interlocutory until it merged with the final judgment and is subject to appeal. 
Missouri Court of Appeals, Southern District – SD37175 

Rulings on Summary Judgment Affirmed 
On a motion for summary judgment on a theory, by the party with the burden of proof on that theory, the movant must establish beyond genuine dispute facts that constitute each element of the theory. Therefore, the non-movant may thwart the motion by raising a genuine dispute as to any one element of the theory. And if the party without the burden of proof on the theory establishes beyond genuine dispute facts that negate just one element of the theory, that party prevails. On a counterclaim for abuse of process, based on the ex parte appointment of a receiver, the elements included use of the process for a purpose other than that for which the process exists. That element was negated when counterclaimant admitted consenting to the ex parte appointment of a receiver. That admission also negated an element of the counterclaim for a civil rights violation based on lack of notice. On a counterclaim for damages based on an unlawful foreclosure, the elements include that the foreclosure was “absolutely” baseless when it started, which was negated by counterclaimant’s admission of default on a note. Matters outside the summary judgment record were irrelevant and constitute a new theory on appeal. When the circuit court finds multiple grounds for its ruling on a theory, an appellant must show error in each of those grounds to win reversal. So, when the circuit court concluded that the counterclaimant could not show multiple elements of a counterclaim, but the counterclaimant challenged less than all those conclusions on appeal, judgment remained supported by a conclusion unchallenged on appeal. When judgment on no underlying counterclaim is reversed, appellant can show no prejudice in cancellation of a lis pendens notice, and denial of counterclaimant’s derivative claims for exemplary or punitive damages must be affirmed. Remanded to determine attorney fees as provided by contract. 
YAM CAPITAL III. LLC, Respondent vs. GS HOSPITALITY, LLC, Appellant 
Missouri Court of Appeals, Southern District – SD37387

Workers’ Compensation

Costs Are Discretionary 
Statute allows an award of costs against a party who pursues a claim or defense unreasonably, which describes both sides, the Labor and Industrial Relations Commission concluded. That conclusion has support in law and fact because the Commission must exercise that discretion “with great caution” and the record shows that appellant participated in the conduct that delayed a ruling for six years. The appellant did not show that the Commission abused its discretion, so the Court of Appeals affirms the denial of costs. 
Melissa Donnell, Appellant, vs. Trans State Airlines and Insurance Company of the State of Pennsylvania, Respondents.                 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110126