Case Summaries for June 13-19, 2025

Attorneys

GAL’s role discussed
Abuse of discretion included erroneous circuit court readings of the law. Circuit court readings of the law were due no deference on appeal. Circuit courts had inherent authority to sanction lawyers. Court-appointed therapists and guardians ad litem worked for the circuit courts, not for the children, so their communications with the child were not privileged and did not constitute work product. Therefore, when a party’s lawyer came into possession of recorded child/guardian conversations, no sanction was due for that lawyer’s disclosure of those conversations. Whether strategic use of those conversations was grounds for a sanction, the Missouri Court of Appeals remanded to circuit court for a determination of.
(Overview summary)
Felisha DeSpain vs. Nathan DeSpain and Brandi Judah, Guardian ad litem; Rose C. Briscoe
Missouri Court of Appeals-Western District – WD87182 consolidated with WD87268

Appellate

Appeal from grant of relief, not denial of dismissal
Plaintiff, assignee of an earlier judgment, filed an action to revive the earlier judgment. The circuit court entered a later judgment for plaintiff, reviving the earlier judgment, which was a special order after judgment that was subject to appeal. But defendant did not appeal the later judgment. Defendant filed a motion and an amended motion to dismiss. That motion was barred as a collateral attack. The motion alleged that plaintiff was not an assignee and argued that the circuit court therefore lacked jurisdiction. Jurisdiction was not at issue because circuit courts had plenary jurisdiction. The circuit court denied the motion, and the defendant appealed that ruling, but the defendant did not show any authority for the Missouri Court of Appeals to review that ruling.
(Overview summary)
J & M Securities, LLC, Respondent, vs. Stephen L. Benner, Appellant.
Missouri Court of Appeals-Eastern District – ED112941

Briefing deficiencies required dismissal
Appellant’s brief had to include: a statement of facts with record references and without argument; points relied on in a specified format and with authorities; argument with the standard of review and how appellant preserved error. Appellant’s failure to correct briefing deficiencies after the notice and the opportunity to correct impeded appellate review so the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Anthony Jay Shelton vs. Crystelle Marie Shelton
Missouri Court of Appeals-Western District – WD87179

Civil

Service requirements applied
Necessary to any circuit court adjudication was personal jurisdiction over the defendant, which plaintiff secured by service of process. On service, plaintiff had the burden of proof. Proof included the return of service but a private process server’s return carried no presumption of conclusiveness. In an unlawful detainer action, plaintiff had to attempt personal service before constructive service, which plaintiff had then to request. No compliance with those requirements appeared in the record, and constructive service was subject to strict adherence, so failure to comply was reversible error. Defendant raised personal jurisdiction at the first opportunity — a “Motion to Dismiss/Overturn” filed after judgment — and consistently maintained that argument. Having raised that argument, defendant was free to “probe the merits” and seek affirmative relief without a special appearance. “[E]ven if the contract is silent on the issue, a party may only recover its fees under a contract provision if it is a prevailing party.” Plaintiff did not prevail so no award was possible.
(Overview summary)
Ridgetop Manor, LLC, Respondent, vs. Lisa M. White, Appellant.
Missouri Court of Appeals-Eastern District – ED112761

Interstate comity supported dismissal
A motion to dismiss that addressed matters unrelated to the petition’s merits and outside the pleadings could stand on matters outside the pleadings like affidavits without turning into a motion for summary judgment. The circuit court could believe or disbelieve any such evidence. Comity was a prudential doctrine that supported restraint in the exercise of jurisdiction over actions when similar actions were pending in another state. Comity’s purpose was sound judicial administration, so it applied when pending actions were less than identical, and disposition left almost nothing for another action to determine. Such was the case with plaintiff’s declaratory judgment action, which sought to keep the proceeds of a life insurance policy, the legality of which was at issue in multiple actions in several states. The single issue merited a single answer, the forum receiving deference had a greater connection to — and well-developed law — on the matter. The circuit court did not err in assigning lesser weight to plaintiff’s theories added later, and whether discovery and evidentiary hearing should have occurred before dismissal, plaintiff did not argue in circuit court, so could not argue in the Missouri Court of Appeals. The Court of Appeals affirmed the judgment dismissing the action.
(Overview summary)
Financial Credit Investments II, Trust E vs. Estate of Georgia Towers, et al.
Missouri Court of Appeals-Western District – WD87569

Amended petition denied
A judgment denying leave to file an amended petition and dismissing the action was subject to review for abuse of discretion. No abuse of discretion occurred when the amended petition sought to add a party, already time-barred, whose earlier omission plaintiff did not justify. Substitution of a party did not include adding a party and plaintiff showed no prejudice in the denial of an amended petition adding that party. Plaintiff had no contract with emergency medical technicians so the new breach of contract claim set forth in the amended petition had no merit. Sovereign immunity was not an affirmative defense and plaintiff had to plead an exception. Plaintiff’s proffered amended petition pleaded a new exception to sovereign immunity, but did not show why it was omitted earlier, so the circuit court did not err in denying the filing of the amended petition and dismissing the action on summary judgment.
(Overview summary)
Joseph Weixeldorfer vs. City of Kansas City, Missouri, et al.
Missouri Court of Appeals-Western District – WD87298

Unsupported denials constituted admissions on summary judgment
Appellant’s argumentative statement of facts hindered but did not bar appellate review. Filing a document with a corresponding certificate of service in circuit court through the electronic filing system constituted service by electronic copy of the document on plaintiffs. Rulings on motions in limine were not subject to appeal. On motions for summary judgment, the circuit courts and appellate courts looked only to summary judgment records. Summary judgment records consisted of movants’ statements of uncontroverted facts and responses. Responses of denial without references to evidence constituted admissions. In an action for employment discrimination, plaintiffs failed to show the element of adverse employment action with allegations of temporary re-assignment to a facility with temporary physical plant issues. The circuit court did not err in granting summary judgment for defendants. Whether the circuit court should have allowed an amended petition claiming punitive damages, the Missouri Court of Appeals did not have to address.
(Overview summary)
Cheri Nabil El-Halawany, M.D. and Lien Pham Russell, M.D. vs. The Children's Mercy Hospital
Missouri Court of Appeals-Western District – WD87135

Commercial

Note enforced
The Uniform Commercial Code provided standing to enforce a promissory note for anyone who possessed the note and to whom the note was payable. A promissory note executed and delivered carried a presumption of consideration subject to rebuttal by clear, cogent, and convincing evidence. Evidence of the underlying transaction’s realities supported a finding of consideration. In an action for breach of contract, the circuit court entered judgment for plaintiff holder of the note and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
Stephan Johannesmeyer vs. Net Zero, LLC.
Missouri Court of Appeals-Western District – WD87410

Criminal

No presumption against miranda
Custodial interrogations could proceed only after Miranda warnings to defendants. Defendants had the burden of proof that Miranda warnings did not precede custodial interrogations by motion to suppress statements and supporting evidence. No such motion or evidence was in the record and the record’s silence did not raise a presumption that Miranda warnings were omitted before interrogation.
(Overview summary)
State of Missouri, Respondent, v. Branden G. Collins, Appellant.
Missouri Court of Appeals-Eastern District – ED112885

Delays okay
The Mandatory Disposition of Detainers Law set a deadline for disposing of pending charges but the deadline was subject to extension for delays caused by defendant’s motions. Motions that did not delay trial did not count toward any extension. But defendant did not show that the state’s failure to meet the deadline violated defendant’s right to a speedy trial in the absence of state fault and prejudice to the defense.
(Overview summary)
State of Missouri, Respondent, v. Coty M. Pilkerton, Appellant.
Missouri Court of Appeals-Eastern District – ED112121

Circumstantial evidence and inferences supported conviction
The elements of driving without a license included operating a motor vehicle on a public thoroughfare. The state showed that defendant was alone in a motor vehicle at two points between which the only route was a public road. The circuit court convicted defendant and the Missouri Court of Appeals affirmed the conviction.
STATE OF MISSOURI, Respondent v DAVID JOHN AINSWORTH, Appellant
Missouri Court of Appeals-Southern District - SD38491

Rape shield law misapplied
“Propensity evidence is evidence of uncharged crimes, wrongs, or acts used to establish that defendant has a natural tendency to commit the crime charged” and is admissible in offenses against victims under circumstances specified by constitutional provision. Factors included similarity between the charge and the propensity evidence, and the risk of unfair prejudice to the defendant, both of which weighed in favor of admissibility. The circuit court did not err in admitting the proffered propensity evidence. The Rape Shield Statute barred evidence of a victim’s earlier sexual activity with exceptions that included the due process right to a fair trial because that included impeachment on a crucial matter in controversy. That exception required admission of evidence that victim wanted a pregnancy test and feared pregnancy from unprotected sex with a third party. The circuit court plainly erred in excluding that evidence so the Missouri Court of Appeals vacated the conviction and remanded the action for a new trial.
STATE OF MISSOURI, Respondent v. JOHN VINCENT ESTES, Appellant
Missouri Court of Appeals-Southern District – SD38483

Surplusage explained
A charging instrument’s allegations unrelated to an element of the cited offense constituted surplusage and did not require proof. Evidence that defendant tried to grab a knife showed an intent to use it. The state could not appeal a ruling on sentencing without filing an appeal of its own.
(Overview summary)
State of Missouri vs. Rodriguez M. Harris, Jr.
Missouri Court of Appeals-Western District - WD87042

Family

Termination of parental relationship affirmed
Grounds for termination of parental rights included failure to rectify the conditions that required state action. That ground had support in evidence of inconsistent compliance with a service plan, especially as to unsafe and unsanitary household conditions despite extra ordinary agency support, and irreversible mental impairment. Grounds for termination of parental rights also included unfitness to parent, of which a presumption arose when the child had spent a specified amount of time in foster care, bolstered by evidence of household conditions and child’s ingestion of marijuana. The state showed the child’s best interest was in termination of parental rights with evidence of that there was no parent/child bond and parent’s disinterest during visits. The circuit court did not err in denying a parent’s motion to re-open the record solely as a back-up strategy when the parent’s primary strategy failed.
(Overview summary)
In the Interest of: S.R.W.
Missouri Court of Appeals-Eastern District – ED87157

Orders of protection

Stalking shown
Under the Adult Abuse Act, full orders of protection were subject to appellate review even after expiration. Full orders of protection had support in stalking, the elements of which included alarm to a reasonable person, which petitioner showed with evidence of death threats, brandishing of firearms, and racial slurs. The Missouri Court of Appeals affirmed the judgment that issued a full order of protection.
(Overview summary)
S.M. vs. Curtis Deierling
Missouri Court of Appeals-Western District – WD86929

Personal injury

Waiver of liability yielded assumption of risk
Summary judgment was due when the movant established beyond genuine dispute such facts as entitled movant to a favorable ruling. A party without the burden of proof could do so by supporting all elements of an affirmative defense. Affirmative defenses included assumption of the risk, which defendant showed through written waivers signed by plaintiff, included in the summary judgment record and sufficiently referenced on appeal. Plaintiff expressly assumed the specified risk of broken bones while playing amateur hockey. Hockey carried inherent risks, so implied assumption of the risk also supported the judgment.
(Overview summary)
Kyle D. Becker, Appellant, vs. Thomas M. Schenk, Respondent.
Missouri Court of Appeals-Eastern District – ED112874

Post-conviction

Extension too late
Circuit courts could grant an extension of time to file an amended motion during the time to file the amended motion. After that, circuit courts lost authority to extend the time for filing amended motions. The circuit court purported to extend the time for filing an amended motion too late, so the amended motion was filed too late. Late filing of an amended motion required an independent inquiry into whether appointed counsel abandoned the movant. That inquiry was necessary to determine which motion to rule on. The Missouri Court of Appeals reversed the judgment and remanded for the abandonment inquiry.
(Overview summary)
James Marshall Scott, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District – ED112665

Probate

No difference, no standing
To bring any claim, plaintiffs had to have standing: a directly threatened legally protected interest. Testatrix had a pour-over provision benefitting a trust. Generally, an invalidated trust left only intestate succession to dispose of the estate. But testatrix’s will also provided, if the trust were invalidated, a distribution identical to the trust’s provisions. Therefore, whether the trust was valid or not, plaintiff was subject to the same distribution and so had no standing to seek invalidation of the trust. The circuit court dismissed the action and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
Cary Shippert vs. Terry Shippert, et al.
Missouri Court of Appeals-Western District – WD87482

Estate re-opened
Operation of law discharged personal representatives six months after filing a statement of account unless, within that time, someone filed an action. Such action was not limited to the personal representative’s liability and included an action to remove the personal representative. Pending such action the circuit court prematurely held that the estate closed and the representative discharged, but it corrected that error by an order re-opening the estate. Opposition to that action benefitted the personal representative, not the estate, and so did not require an award of attorney fees to the personal representative. The Missouri Court of Appeals affirmed the circuit court’s rulings.
(Overview summary)
In the Estate of: Betty L. Shippert, Deceased Terry G. Shippert, Personal Representative vs. Cary Shippert, Shari D. Pitts, Sarah E. Lawrence, and Bryon E. Shippert
Missouri Court of Appeals-Western District – WD87348

Real estate

Claims stated, not stated, among lessees
The circuit court’s extension of time for filing responses to the petition applied to defendant’s motion to dismiss. Lessees’ contract bound lessees jointly, each severally liable for the entire amount due, and plaintiffs alleged no further provisions obligating one to another. Also, such provisions would have to appear in a written memorandum to comply with the Statute of Frauds, which neither the lease nor an affidavit drafted after litigation commenced did. An admission of marriage did not prove a joint venture and consequent liability. Plaintiffs’ performance of their part applied to the lease, not any side agreement. Further, partial performance and promissory estoppel only avoid the Statute of Frauds in equity. Such pleading did not state a claim for breach of contract among lessees because no lessee was a real party in interest as to the lease. But such pleading stated a claim under promissory estoppel and for contribution. On those rulings, any error in extending time to file the motion to dismiss would have no effect on the merits of the action, so the Court of Appeals did not determine that point.
(Overview summary)
Jonathan Crosmer & Kathleen Crosmer, Appellants, v. Dalton Harris, Respondent.
Missouri Court of Appeals-Eastern District – ED113182

Court-ordered plan, not injunction, was the remedy for easement’s maintenance
In an action for equitable relief, circuit courts had wide discretion to fashion relief within the pleadings and the record. The record did not support the injunctive relief that the circuit court ordered. The record showed that the parties disputed only maintenance, for which the statutory remedy was a court-ordered plan, so that adequate remedy at law barred an injunction. The Missouri Court of Appeals vacated the judgment and remanded the action.
GORDON BUNDY and MARLENE BUNDY, trustees of the Gordon G. Bundy and Marlene K. Bundy Trust dated December 13, 2017, Appellants v. BRETT RAPIEN and TRISHA RAPIEN, Respondents
Missouri Court of Appeals-Southern District – SD38365

Statute of frauds applied
A statute of limitations required parties to bring any action for recovery of land within ten years from when the party last possessed it, and “[v]acant and rural land is constructively possessed by the person holding title [,]” so plaintiff’s petition to cancel a deed for fraud was due within ten years of when the challenged deed was recorded. Buyer’s payments, even if characterized as rent, did not extend that period. Contracts had to include all essential terms. Contracts for the transfer of any interest in land were subject to the statute of frauds, requiring a writing or, under the exception for partial performance, “clear, cogent, unequivocal, and convincing testimony” of the contract’s provisions. Contracts were subject to enforcement by an action brought within one year. Plaintiff alleged a contract 40 years old, in which buyer promised to buy land for amounts unspecified, and to sell back to buyer at a time unspecified in any writing or testimony. The circuit court found for plaintiff, but the Missouri Court of Appeals vacated that judgment and remanded the action.
CANDACE HARRELL KYLE, CANDACE HARRELL KYLE, Personal Representative of the Estate of GEORGE L. HARRELL, Plaintiff-Respondent v CAROLYN FOWLER, Individually, as Personal Representative of the Estate of VERNON RAY FOWLER, and as Trustee Of the Joint Revocable Living Trust Indenture of Vernon Ray Fowler and Carolyn A. Fowler dated June 21, 2011, Defendant-Appellant
Missouri Court of Appeals-Southern District – SD38385

Workers’ compensation

No second injury fund coverage for occupational diseases
The elements of a claim on the Second Injury Fund included a later injury and a qualifying earlier injury. Injury did not include any occupational disease. The Labor and Industrial Relations Commission exceeded its authority in ruling otherwise. The Missouri Court of Appeals reversed the commission’s decision and remanded the action for the commission to determine whether other conditions of claimant supported an award.
(Overview summary)
Brian White, Respondent, vs. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Appellant.
Missouri Court of Appeals-Eastern District – ED113099