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Case summaries for June 11 - June 17, 2021


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.

ADR | Civil | Contract | Criminal | EmploymentEvidence | Juvenile | Personal Injury


Arbitration Not Compelled
In ruling on a motion to compel arbitration, whether circuit court erred is a question of law, but whether any agreement to arbitrate exists is a question of fact on which an appellate court defers to the circuit court’s findings. Those findings must stand on a record. The record showed that one party never delivered signed agreement documents to the other party, which supported a finding that the parties never agreed that the agreement would bind them, so the Court of Appeals affirms the circuit court’s denial of the motion to compel arbitration.
EM Medical, LLC, Respondent, vs. Stimwave LLC, Appellant, and Andrea Berry, et al., Defendants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108965


Statute on Punitive Damage Pleading Is Prospective Only
Statute governing the pleading of punitive damages expressly applied to actions filed after a date certain, so circuit court had no authority to apply it to relator’s action, filed before that date. Court of Appeals makes permanent its writ of prohibition, requiring circuit court to vacate its denial of an amendment to relator’s pleadings, and requiring circuit court to apply the rule on amending pleadings to relator’s motion.
Elaine Largent, Relator, vs. The Honorable Daniel Pelikan, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109622

Separate Rulings Required on Remand
On remand, circuit court’s authority comes from appellate court’s mandate, and circuit court’s judgment on remand is not final until compliance with mandate is complete. So when the Court of Appeals remands an original judgment to set aside the original judgment, and the original judgment awarded attorney fees, the judgment on remand is not final until the circuit court also separately and expressly sets aside the attorney fees award. Circuit court’s judgment on remand set aside the original judgment, but did not also separately and expressly set aside the attorney fees award, so the judgment on remand is not final. Without a final judgment, the Court of Appeals has no jurisdiction, so the Court of Appeals dismisses the appeal.  
Linda R. Zweifel n/k/a Linda R. Smith, Respondent, vs. Randall Zweifel, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109261

No Summary Judgment on Superseded Pleading
An earlier appeal from an interlocutory ruling is irrelevant to res judicata, law of the case doctrine, and general principles limiting appellate review to one per error, because those theories apply only to a final judgment; and none applies to the Court of Appeals’ jurisdiction. “[A]n amended petition abandons all prior pleadings as well as any interlocutory orders or judgments entered thereon.” Circuit court allowed the filing of a later pleading, before it granted summary judgment on an earlier pleading, so circuit court erred in that it granted summary judgment only on a superseded pleading. The absence of such later pleading does not assist movant. Attorney fees order also reversed.
Julie Ann Thomas, Appellant vs. Kurt E. H’Doubler, Individually and as Trustee of the F. T. H’Doubler, Jr., Revocable Trust dated May 2, 2000, and the Francis T. H’Doubler, Jr., Family Trust created thereunder, and as Co-Trustee of the F. T. H’Doubler, Jr., Irrevocable Trust dated May 1, 2000, and the Julie Ann Thomas Trust created thereunder, and as Trustee of the Joan L. H’Doubler Irrevocable Trust dated December 28, 1982, and the Trust for the benefit of Julie Thomas and the Credit Shelter Trust created thereunder, Sarah Ellen Muegge, Estate of Scott Wesley H’Doubler, Brian Muegge, Individually and as next friend of Simon F. Muegge and Benjamin W. Muegge, Beth McGee, individually and as next friend of Rivers C. McGee and Emmett McGee, Todd H’Doubler, Sally H’Doubler, Laurie Thomas, Becky Thomas, Colleen T. Walton, individually and as Co-Guardian of the person of Marie H’Doubler and Co-Conservator of the Estate of Marie H’Doubler, Gary T. Walton, Sr., in his capacity as Co-Guardian of the person of Marie H’Doubler and Co-Conservator of the Estate of Marie H’Doubler, and Rick Steven Denney, Respondents
Missouri Court of Appeals, Southern District - SD36792


Appropriate Attorney Fee Was Zero
Homeowner association’s declarations provided parties prevailing in litigation an award of attorney fees “as deemed appropriate by a court of competent jurisdiction.” That provision vested the circuit court with discretion to deny an attorney fees award, and the record shows that the circuit court considered awarding attorney fees, but exercised its discretion to the contrary. That another provision applied, entitling lot owners to attorney fees, was not before the circuit court and so went unpreserved for appeal.  
Arrowhead Lake Estates Homeowners Association, Inc., Appellant, vs. Ajay Aggarwal and Megha Garg, Respondents.
(Overview Summary)
Supreme Court of Missouri - SC98772


Entrapment Was No Defense
Rule, requiring State to disclose all evidence to be offered at trial, does not apply to evidence until the State intends to use it, and does not apply to evidence that the defense already has; and, even if a discovery violation occurred, appellant showed no prejudice from it. Each time appellant possessed contraband in jail constituted a separate offense, so multiple charges did not constitute double jeopardy. Statutes provide that entrapment is a defense to a criminal charge, except an offense that puts someone in physical danger, so circuit court did not err in denying an instruction on entrapment when the State alleged that appellant possessed weapons in jail.  
State of Missouri vs. Miguel A. Torres
(Overview Summary)
Missouri Court of Appeals, Western District - WD83487


Time Barred Discrimination Claim
For a claim of employment discrimination, the filing time started when the discriminatory employment decision occurred. Employee waited to file an action in circuit court until receiving a right-to-sue letter from the Missouri Commission on Human Rights, by which date the statute of limitations had run. Summary judgment for employer affirmed. 
FRED KINGORI, Appellant vs. MHM SUPPORT SERVICES, d/b/a Mercy Care Management, Respondent
Missouri Court of Appeals, Southern District - SD36931


No Testimony Allowed on Credibility of Confession
Corpus delecti rule requires evidence that someone committed the offense charged, other than an out-of-court confession, so the out-of-court confession is inadmissible without that other evidence. Evidence of two gunshots to victim’s head satisfies the corpus delecti rule and made admissible testimony from the State’s witnesses that they heard appellant confess. Whether that confession was true determined appellant’s guilt. Guilt is a matter solely within the jury’s province. That province was invaded by testimony from the State’s witnesses, that they believed appellant’s confession to be truthful, so allowing that testimony was plain error. The Court of Appeals reverses appellant’s conviction and remands for a new trial.
State of Missouri, Respondent, vs. Darin Schmidt, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108959


Appeal Too Late
Statutes allow appellate review of a final judgment from the juvenile division of circuit court, including a dismissal from the juvenile division and transfer for prosecution as an adult, but only if appellant files a notice of appeal no later than 30 days from the date on which the judgment becomes final. A notice of appeal filed late vests no jurisdiction in the Court of Appeals, so the Court of Appeals dismisses the action.
In the Interest of: D.R.T. vs. Juvenile Officer
(Overview Summary)
Missouri Court of Appeals, Western District - WD83874

Personal Injury

Supervision of Police Pursuit Protected
Statute imposes a duty to supervise vehicular supports solely on a “public agency electing to institute vehicular pursuits” and defendant relators are individuals, not agencies, and the supervision of vehicle pursuits includes many exercises of discretion. Official immunity protects public servants from being sued for negligence in the course of discretionary duties, not just from liability, so it is grounds for a writ of prohibition.
State ex rel. Officer Sergeant Dirk Helms and Chief Joe Edwards, Relators, vs. The Honorable Joseph Alfred Rathert, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98711

State Legal Expense Fund Discussed
State Legal Expense Fund is liable for any judgment for “conduct of [an] employee arising out of and performed in connection with [such employee’s] official duties on behalf of ... any agency of the state [.]” When police officers falsified their report on respondent, the Fund covered police officers, but amendments removed that coverage by the time respondent demanded payment of his judgment. The version of the statute in effect when respondent made his claim applies. Respondent has standing to challenge the amendment as retrospective in application, but no rights changed under the amendment, so the amendment is merely retroactive as to the former officer’s conduct.  
Michael Holmes, Respondent, vs. Sarah Steelman and Eric Schmitt, Appellants.
(Overview Summary)
Supreme Court of Missouri - SC97983

Dram Shop Damages Discussed
When plaintiff agrees to limit recovery to defendant’s insurance, statutes give insurer the right to intervene, which makes the insurer a party. An intervenor accepts the action as it is when circuit court grants intervention, which included no contest for liability for plaintiff’s damages, but the amount of damages was unresolved. Therefore, insurer had the right to discovery on damages, and circuit court erred in limiting that discovery. But insurer obtained that discovery and had the opportunity to offer evidence on the issue, so the circuit court’s error had no material effect on the merits of the outcome, which means that no prejudice resulted. Common law damages for dram shop liability, including punitive damages, survived statutory modifications.
Melissa A. Rasmussen vs. Illinois Casualty Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD83806