Case summaries for June 14-20, 2024

 Civil | Criminal | Discovery | Evidence | Family | Post Conviction | Tax

Civil 

Judgment Irregular When Entered Without Notice 
Due process required notice and a meaningful opportunity to be heard before entering judgment against appellant. When the record shows no notice, an appellate court could conclude that there was no notice. The circuit court gave appellant notice of a hearing on permanency review. Then, respondent filed an action for paternity, sole custody, and child support, of which the record showed no notice to appellant. At the permanency review hearing, appellant did not appear, the circuit court also took up the respondent’s petition, and entered judgment for respondent the next day. Appellant filed motions to set aside and for new trial, both denied. Rule allowed the circuit court to set aside a judgment as irregular, which included a judgment entered without notice, and denying appellant’s motion to set aside the judgment under that rule constituted an abuse of discretion. The circuit court also failed to appoint a guardian ad litem for a child, contrary to the Uniform Parentage Act, which requires such an appointment in an action for paternity. Such failure constituted reversible error. The Court of Appeals vacated and remanded the judgment. 
C.D.G., a minor child, by and through Next Friend, CASEY GREEN, and CASEY GREEN, 
Individually, Petitioners-Respondents v. TARA JONNE GREEN, Respondent-Appellant 
Missouri Court of Appeals, Southern District - SD38005 & SD38021 

Criminal 

Age Was Not an Element of Murder in the First Degree 
Plain error review was discretionary and required a pleading that described an obvious error that was not only prejudicial but outcome-determinative. Outcome-determinative error never resulted from an instruction that accurately stated the law because an accurate instruction is never even prejudicial. An instruction on first-degree murder accurately stated the law when it addressed all elements as set forth in the governing statute and case law. Neither statute nor case law required a jury to find whether defendant was 18 years or older at the time of the murder and no approved instruction can change that. No plain error occurred when the circuit court did sentence defendant without a finding on defendant’s age. The right to a speedy trial means a trial expedited in an orderly fashion so the cause and effect of any delays is relevant. With a late assertion of the right, and delays that weighed more against defendant than the State, and no prejudice shown from those delays, defendant did not show plain error in the circuit court’s failure to sua sponte dismiss the action. 
(Overview Summary) 
State of Missouri, Respondent, v. Marcus H. Ausler, Appellant. 
Missouri Court of Appeals, Eastern District – ED 110825 

Multiple Change of Judge Prohibited 
On the first judge’s recusal, the Supreme Court assigned a second judge. The parties stipulated to and received a change of venue and a change of judge from second judge to third judge. Third judge retired, which resulted in re-assignment of the case to fourth judge. Rules barred, with inapplicable exceptions, any further change of venue and any further change of judge. Nevertheless, defendant sought a change of judge from the fourth judge, the fourth judge granted the motion, and the Supreme Court assigned a fifth judge. The parties agreed to re-assignment from the fifth judge back to the fourth judge. The Supreme Court made permanent its preliminary writ of prohibition, barring the fourth judge from enforcing the order granting a change of judge, leaving the case with the fourth judge. 
(Overview Summary) 
State of Missouri ex rel. Andrew Bailey, Relator v. Honorable C. Wade Pierce and Honorable Kacey L. Proctor, Respondents. 
Supreme Court of Missouri – SC100509 

No Continuance Requested, None Needed 
Remedies for the State’s failure to comply with discovery included disclosure, continuance, and exclusion. Review of such orders was for an abuse of discretion, and reversal of a judgment occurred only when prejudice rose to the level of fundamental unfairness, meaning that “there was a reasonable likelihood that an earlier disclosure of the requested evidence would have affected the result of the trial.” No such likelihood existed when the circuit court “impose[ed] the harshest sanction” by excluding surprise evidence from the State’s case, as the defense requested, and allowed it in the defense’s case. The defense did not request a continuance, so no error occurred when the circuit court did not grant a continuance. 
STATE OF MISSOURI, Plaintiff-Respondent vs. BOBBY LEE MAYS, [JR.], Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37764 

Offer of Proof Established Direct Connection to Alternative Perpetrator 
Defendant did not provide a sufficient record of juvenile proceedings from which to determine that counsel, for the hearing on certification as an adult, was ineffective. On charges including second degree murder, defendant was entitled to an alternative perpetrator defense only if defendant established a direct link between the proffered alternative perpetrator and the offense, which defendant did with an offer of proof as follows. The defendant’s brother owned clothes like the murderer wore; was in the close in place and time to the murder; and used in another shooting a weapon that was likely the murder weapon, which police found in a house where the brother was present in a bag at least similar to one that the brother owned. Denial of the defense was an abuse of discretion and outcome determinative. 
(Overview Summary) 
State of Missouri vs. Jahuan D. Whirley 
Missouri Court of Appeals, Western District - WD85439 
 

Discovery 

Work Product Privilege Upheld 
Rules of discovery privileged attorney work product including reports of defendant’s in-house testing on defendant’s product subject to a substantial need or waiver. No waiver of privilege for the test results followed from disclosures on the data generated by such tests. Disclosure of the data did not create a substantial need for the conclusions and plaintiff’s ability to do their own tests using the disclosed data negated plaintiff’s claim of substantial need. A circuit court ruling barring any argument of inference of defendant’s testing conclusions was not subject to appeal because plaintiff stated that plaintiff intended to argue no such inference. Appellate courts reversed only where error caused prejudice. The circuit court’s scheduling order for a witness’s appearance caused no prejudice because a deposition of the witness was available, and that order allowed ample time for preparation and examination of the witness. To show prejudice in the exclusion of evidence required a record in the form of an offer of proof. Absent an offer of proof, the record could not show reversible error. No prejudice occurred when the circuit court barred a question once and the witness answered it multiple other times. 
(Overview Summary) 
Katherine O'Haver vs. 3M Company 
Missouri Court of Appeals, Western District - WD86040 

Evidence 

No Exception Shown for Hearsay from Deceased Declarant 
Hearsay was subject to exclusion with a few established exceptions, some of which applied when the declarant had died, but appellant’s offer of proof did not describe any such exception. “With regard to the hearsay exception for dying declarations, the mere death of a declarant is alone insufficient to meet the requirements for admissibility.” The defense’s need for the hearsay does not constitute an exception. The circuit court did not abuse its discretion in excluding the proffered hearsay. 
(Overview Summary) 
State of Missouri, Respondent, vs. Branden L. Johnson, Appellant. 
Missouri Court of Appeals, Eastern District – ED111593 
 

Family 

Award of Sole Custody Inconsistent 
In a bench trial, appellant must preserve any point on appeal by presentation to the circuit court in some manner but not necessarily in a post-trial motion. Rule on a motion to amend judgment related only to the form, language, or omission of findings in a judgment; not to errors of law. A judgment could order a change in parenting time on the occurrence of a future event only if the event was definite and unconditional, like the child entering school or reaching the age for statutorily compulsory school attendance, so a remand was necessary to specify such an event. The resulting change in parenting time did not change the award of joint physical custody into sole physical custody. On the occurrence of that event, the judgment could also order an accompanying change in child support. The judgment purported to award sole legal custody, but included so much authority for the non-custodial parent that it looked more like joint legal custody, resulting in an internally inconsistent judgment that required reversal and remand. Form 14 distinguished child-rearing expenses as ordinary or extraordinary, and the commingling of ordinary expenses with extraordinary expenses was error, requiring reversal and remand. An award of attorney fees did not constitute an abuse of discretion. 
(Overview Summary) 
J.W., Juvenile by her next friend K.C.G. and K.C.G. Individually as next friend for J.W. vs. N.R.W. 
Missouri Court of Appeals, Western District - WD86515 
 

Post-conviction 

Appointed Counsel, No Abandonment, No Final Judgment 
Filing deadlines determined circuit court authority. The circuit court had to extend a filing deadline before the deadline expired but did not order an extension within that time. Abandonment applied only when movant relied on appointed counsel, and appointment of counsel did not occur through docket entries of mere notice. Abandonment did not apply to retained counsel, so retained counsel’s late filing was not within the circuit court’s authority to decide. As a result, only the initial motion, which set forth issues different from the amended motion, was before the circuit court. Because the initial motion’s issues remained undecided, the judgment was not final and the circuit court dismissed the appeal. 
(Overview Summary) 
Shayne Garretson vs. State of Missouri 
Missouri Court of Appeals, Western District - WD85776 

Circuit Court Observations Negated Prejudice, Standard on Appeal Clarified 
An appellate court could reverse a judgment on post-conviction relief for “(1) a mistake of law, (2) a factual finding for which there was insufficient evidence, or (3) a factual finding for which there was sufficient evidence but [as to] which the appellate court, nevertheless, . . . on the whole of the evidence is left with a definite and firm conviction that a mistake has been committed.” Deference to the circuit court’s assessment of the evidence was due, so “the caution with which such a highly intrusive tool should be used counsels strongly against its use here.” In a claim for post-conviction relief based on ineffective assistance of counsel, the elements are substandard performance and resulting prejudice. On a charge of first-degree domestic violence, lesser included offenses differed as to the element of mental state and injury, and an instruction on domestic violence in the fourth degree offered “unique benefits . . . with no corresponding risks or detriments [.]” The circuit court found that trial counsel should have offered an instruction for domestic violence in the fourth degree, yet failed to do so with no evidence of sound strategy, showing substandard performance. The circuit court also found that prejudice did not result, and was the same judge as in the underlying criminal action, so that finding was due additional deference. Not left with any definite and firm conviction that the circuit court made a mistake, the Supreme Court affirmed the judgment denying relief. 
(Overview Summary) 
Shawn H. Flaherty, Appellant, vs. State of Missouri, Respondent. 
Supreme Court of Missouri - SC100292 

Tax 

Notice to Taxpayer’s Counsel Started Time Running 
Constitutional provisions grant plenary jurisdiction to circuit courts, but the Administrative Hearing Commission is a creature of statute and so has only the authority granted by statute. In an action for de novo administrative review of a sales tax audit, the Commission issued a decision dismissing the action for failure to comply with a Commission order. The time for seeking relief from that decision began with the transmittal of notice by mail, not with receipt of notice, and the Commission mailed notice of the decision to taxpayer’s counsel at the address on file with the Commission, as statute provided. “The attorney-client relationship is based in agency and notice to an agent, acting in that capacity is imputed to the client.” But taxpayer’s counsel was no longer at that address. The time for seeking relief from the decision ended with the time for filing a notice of appeal, and only after that date did taxpayer file a motion to set aside the decision, so the Commission denied the motion for lack of authority. The Court of Appeals affirmed the Commission’s decision. 
(Overview Summary) 
C. Jenkins Neckties vs. Director of Revenue 
Missouri Court of Appeals, Western District - WD86431 

Notice to Taxpayer’s Counsel Started Time Running 
Constitutional provisions grant plenary jurisdiction to circuit courts, but the Administrative Hearing Commission is a creature of statute and so has only the authority granted by statute. In an action for de novo administrative review of a sales tax audit, the Commission issued a decision dismissing the action for failure to comply with a Commission order. The time for seeking relief from that decision began with the transmittal of notice by mail, not with receipt of notice, and the Commission mailed notice of the decision to taxpayer’s counsel at the address on file with the Commission, as statute provided. “The attorney-client relationship is based in agency and notice to an agent, acting in that capacity is imputed to the client.” But taxpayer’s counsel was no longer at that address. The time for seeking relief from the decision ended with the time for filing a notice of appeal, and only after that date did taxpayer file a motion to set aside the decision, so the Commission denied the motion for lack of authority. The Court of Appeals affirmed the Commission’s decision. 
(Overview Summary) 
Cathy's Kitchen & Diner, LLC vs. Director of Revenue 
Missouri Court of Appeals, Western District - WD86430