Case summaries for June 12 - June 18
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.
Petition for Judicial Review of a Contested Case Untimely
Statute governing judicial review of a contested case requires “filing a petition in the circuit court of the county of proper venue within thirty days after the mailing or delivery of the notice of” the challenged order. Savings provision allows “attacking any void order of an agency at any time” by other means, but such other means are other statutes, and the savings provision is not an exception to the statute’s deadline even when petitioner argues that the order is void.
Gerald W. Tyler and Kathryn Tyler, vs. City of Marshall, Missouri and City of Marshall Board of Building Code Enforcement
Missouri Court of Appeals, Western District - WD82903
Must Challenge Delegation Clause Specifically
The plain language of an arbitration agreement’s delegation clause comprehensively embraced any dispute related to the parties’ contract. A challenge to a delegation clause must consist of “a specific challenge to the delegation” and challenges directed at the agreement as a whole, or even focused on the arbitration clause, are insufficient. Also, the challenge to the delegation clause must be distinct from any challenge to the arbitration agreement or the arbitration provision.
TD Auto Finance, LLC, Appellant, vs. Michelle Bedrosian, Respondent.
Missouri Court of Appeals, Eastern District - ED107438
Salvage Title Required for Totaled Car
The statutes governing the sale of a car include criminal penalties for selling a vehicle without disclosing a declaration of salvage status, but they do not preclude a private right of action for that conduct, which satisfies an element of a claim for fraudulent misrepresentation. On a motion for summary judgment, defendant insurer’s evidence established that it did not declare car to be a salvage vehicle, but the plaintiff buyer’s evidence raised a genuine dispute as to that fact by showing that insurer had titled the car as “clean [.]” That summary judgment record supported a ruling for neither party.
John N. Parke, Appellant, v. Progressive Casualty Insurance Company, Respondent
Missouri Court of Appeals, Eastern District - ED108358
Assignee Liable for Seller’s Wrongs
Missouri Merchandising Practices Act provides a private cause of action against a seller for “deception, fraud, or misrepresentation [,]” which includes a contract to sell a car without transferring title. At the same time, federal regulation and Missouri statute impose all the buyer’s claims and defenses against seller on the seller’s successor. That equates to “an affirmative promise” by the seller’s assignee of the sales contract to transfer title to the buyer. A petition that describes liability, by alleging relevant facts under those laws, states claim for relief against seller and assignee.
Tommy Heinz, Appellant, vs. Driven Auto Sales, LLC, d/b/a Driven Auto Sales, Defendant, First Community Credit Union, Respondent.
Missouri Court of Appeals, Eastern District - ED107617
CAFO Permit Affirmed
Standing to challenge the constitutional authority of an agency lies with any person affected by that agency’s authority, and the Clean Water Commission’s authority affected appellant’s rights vis a vis respondent, so appellants had standing to challenge the constitutionality of the Clean Water Commission’s authority. That challenge must occur at the first opportunity, but the Administrative Hearing Commission cannot determine the constitutionality of a statute, so appellants timely raised their constitutional challenge for the first time at the Court of Appeals. Quo warranto is the remedy for unlawful appointment of a commissioner to the Clean Water Commission, but not the constitutionality of the statute determining the composition of the Commission. A bill’s title determines whether any change to the bill exceeds its general purpose for the Missouri Constitution’s original purpose clause, and whether any matter is related or connected with the bill for the Missouri Constitution’s single subject clause. A change to the Clean Water Commission’s composition was within the original purpose as announced in the title, which related to wastewater treatment systems, and the title was clear. Regulation does not require applicant to protect all structures from a 100-year flood, only specified structures, and an engineering report marked “for information only” showed compliance with that regulation.
In re Trenton Farms RE, LLC, Permit No. MOGS10520; Missouri Department of Natural Resources and Missouri Clean Water Commission, Respondents, vs. Hickory Neighbors United, Inc., Appellant.
Supreme Court of Missouri - SC97695
Dismissal from Juvenile Division Is Subject to Appeal
Statutes governing juvenile procedure provide an appeal from any judgment. Judgment of circuit court’s juvenile division transferred appellant to circuit court and dismissed petition for care and treatment. That judgment was final and subject to appeal.
In the Interest of D.E.G., Appellant, vs. Juvenile Officer of Jackson County, Respondent.
Supreme Court of Missouri - SC97869
Savings Statute Discussed
In actions for wrongful death, statute of limitations is three years, with one more year to file a new action after a nonsuit. Nonsuit includes “various terminations of a cause of action that do not adjudicate the merits of the issues.” The first petition to name defendant tolled the statute. But after the statute, and the time for adding parties had run, plaintiff substituted defendant with another party and filed an amended petition accordingly. That substitution for defendant did not constitute a nonsuit as to defendant. Then, plaintiff filed a further amended petition adding defendant back in, which constituted a new action, as to defendant, more than three years after the events. Plaintiff thus failed to comply with the statute of limitations as to defendant.
Londa L. Sofia, et al., Appellants, vs. Robert W. Dodson, M.D., et al., Respondents.
Supreme Court of Missouri - SC97854
Failure to Call Witness Supports Relief
The record supports a finding that a witness would have been available to testify, and that trial counsel did not attempt to subpoena that witness until the day before trial because “trial counsel . . . just didn’t get it done . . . [a]nd it probably had a lot to do with . . . not getting to it as soon as [trial counsel] should have [,]” resulting in the absence of that witness. The witness would have testified to the demeanor of the complaining witness immediately after the conduct alleged, which was relevant to the defense of consent, which would negate the element of forcible compulsion. Those findings support a conclusion that trial counsel was therefore ineffective and movant suffered prejudice. Judgment granting post-conviction relief affirmed.
JULIAN ROWLAND, Respondent vs. STATE OF MISSOURI, Appellant
Missouri Court of Appeals, Southern District - SD36154
Reduced Award to Guardian ad Litem Affirmed
Statutes place the award of compensation to a guardian ad litem within the discretion of the circuit court, which includes the circuit court’s inherent “expert[ise] on the nature and value of attorney’s fees [,] and is not bound by . . . evidence of prevailing fees, other attorneys’ opinions of what is a reasonable fee, or the consent of the [protectee]’s family.” Courts presume that services to family members are gratuitous, and circuit court set rates for non-family members’ services at $10 per hour. Appellant’s failure to support errors charged against circuit court with references to the record hinders appellate review but does not prevent the Court of Appeals from “combing through Appellant’s legal file in the hopes that doing so would permit a decision on the merits [,]” which results in rejecting appellant’s challenge.
In the Estate of: James Larry Washington
Missouri Court of Appeals, Eastern District - ED108357
Claims Not Untimely
Statutes place the award of compensation to a guardian ad litem within the discretion of the circuit court, and set their priority based on classification. Claims of guardian ad litem were not untimely, though they would have been for a personal representative, so circuit court erred in dismissing those claims. Reversed and remanded for a decision on the merits of guardian ad litem’s claims.
In the Estate of: James Larry Washington
Missouri Court of Appeals, Eastern District - ED108336
30 Year Tax Statute Explained
Statute provides that any claimant of land, on which no taxes have been paid for 30 years, has one more year to pay the taxes or be forever barred from claiming ownership against whomever possessed that land for the last year. Under that statute, among other theories, possessors sued claimants for ownership of land. On claimant’s motion for summary judgment, claimant established facts material to the statute, but possessors raised genuine disputes as to those facts, by affidavits and county records. That the tax assessments on claimant’s land relied on erroneous surveys was not relevant.
MICHAEL A. PREDOVIC, MARILYN M. PREDOVIC, PAUL R. ETHERIDGE and ELIZABETH A. ETHERIDGE, Appellants vs. THE EMPIRE DISTRICT ELECTRIC COMPANY, and CHUCK PENNEL, ASSESSOR, Respondents
Missouri Court of Appeals, Southern District - SD36404 and SD36405
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 [.]” An “agency of the state” specifically excludes every special administrative board for every school district, except the Transitional School District in the City of St. Louis, which is under State—not local—control to remedy State wrongs. To show coverage by the Fund, judgment debtor must show that the agency employee tendered defense to the Fund, which judgment debtor established with evidence of correspondence between the agency employee and the Fund. The Fund’s evidence “that copies of that correspondence could not be located in a particular records management system” did not raise a genuine dispute as to the tender of defense. Summary judgment against the Fund affirmed.
S.M.H., vs. Eric Schmitt, Attorney General of the State of Missouri, and Sarah Steelman, Commissioner of Administration, State of Missouri
Missouri Court of Appeals, Western District - WD83050
Integrated Plant Doctrine Intact
Sales tax statutes exempt purchases of “replacement equipment” used “directly in the manufacturing process [,]” meaning equipment used necessarily, physically, and harmoniously in the manufacturing system. That system may be spread over a wide geography, but each item purchased for examination is subject to proof for the exemption, and the Administrative Hearing Commission did not determine the exemption for each purchase assessed. Remanded for the Administrative Hearing Commission to make findings of fact and conclusions of law on all purchases.
Dreyer Electric Co., LLC, Respondent, vs. Director of Revenue, Appellant.
Supreme Court of Missouri - SC98007