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Case summaries for June 16 - June 22, 2023


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.

Civil | Criminal | Evidence | Insurance | Juvenile | Orders of Protection | Personal Injury | Post-Conviction | Real Estate


Denial of motion to set aside judgment affirmed 
In circuit court, appellant cited rules governing a variety of post-judgment relief but, where the relief sought is to set aside a default judgment, an appellate court applies that rule to the ruling challenged. The challenged ruling refused to set aside a default judgment on showings of a meritorious defense and good cause. Good cause includes negligence, but not recklessness, the latter of which describes appellant’s allegations. Appellant alleged, in its motion to set aside, that it had internally misrouted the petition for damages in circuit court as a workers’ compensation claim. But its supporting evidence was unclear, and even internally inconsistent, which supported a circuit court finding against that evidence’s credibility. To show a meritorious defense requires allegations of fact that defeat a claim, not a mere conclusory of general denial, which is all that appellant offered in circuit court. Nothing required the circuit court to consider later-filed additional evidence. “[Appellant] had multiple opportunities to present evidence in support of its meritorious defense, including when it filed the motion to set aside, at the hearing on the motion, and when it filed its reply in support of the motion. Although [appellant] sought a fourth “bite at the apple” to submit evidence establishing its meritorious defense, the [circuit] court was under no obligation to allow [appellant] to present additional evidence when such evidence was available to [appellant] during each of those previous opportunities. Thus, we find the trial court did not abuse its discretion in denying [appellant]’s motion for new trial.” Because the default judgment is not set aside, claims of plain error in the default judgment’s award of punitive damages are moot.  
David Steele vs. Johnson Controls, Inc. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85681 and WD85863


No acquittal-first argument made 
Approved instructions on lesser-included offenses do not require a jury to vote against the greater offense before considering a lesser offense, so an argument to the contrary—an “acquittal first” argument—is a misstatement of the law, but that is not what the State argued. The State’s argument simply used the language of the approved instructions. The State’s single isolated reference to the Bible did not undercut the jury instructions and did not constitute plain error.  
State of Missouri, Respondent, vs. Marcell Foster, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110489


Delayed disclosure okay 
Rule requires the State to respond to discovery with requested items, and to use diligence and good faith efforts to make available such items in the possession of other government personnel. As to the latter, delayed disclosure until four days before trial did not prejudice the defense, because those days constituted an “adequate opportunity to review such evidence before trial.”  Appellant did not show that earlier disclosure would have altered the outcome at trial.  
State of Missouri, Respondent, v. Garry Denson, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110690


Payment subject to subrogation, not set-off 
In arbitration for plaintiff’s loss, defendant’s insurer paid an amount to plaintiff’s insurer, who paid it to plaintiff. In plaintiff’s action for damages against defendant, defendant raised that amount as a set-off, and the circuit court agreed. That ruling misapplied the law, because plaintiff never assigned the claim to plaintiff’s insurer, so any double recovery is subject only to subrogation from plaintiff to plaintiff’s insurer. “But the unauthorized actions of the parties’ insurers do not divest [plaintiff] of her ability to seek a full recovery from [defendant], who has no right to a credit against his liability to [plaintiff].” The ruling also violates the collateral source rule, which protects the benefit of a bargain in which an insured contracts for insurance. Statutes governing accommodation payments and special damages do not apply.  
Barbara S. Thomas, Appellant, vs. Emir Ramushi, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111064


Certification as adult affirmed 
Statutes allow circuit court to dismiss an action against appellant under juvenile statutes, allowing prosecution against appellant under criminal statutes, on consideration of specified non-exclusive factors. Factors include repeated serious violence against a person, which the circuit court found appellant to have committed. Repeated conduct need not have been the subject of earlier juvenile actions. The record supports the circuit court’s finding as to the degree of appellant’s sophistication and the greater availability of treatment in the Department of Corrections. Judgment affirmed.  
In the Interest of: D.J.S. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110652

Orders of Protection

Full order issued on stale evidence reversed  
Statutes provide that, on issuance of an ex parte order of protection, circuit court must convene a hearing on a full order of protection within 15 days, absent good cause, but four years lapsed between those events without good cause for enough of the delays. The Court of Appeals instructs the circuit court to be mindful of respondent’s rights and its own authority. The elements of claim for an order of protection against stalking and harassment in 2022 had no support in evidence of events in 2017. A full order of protection’s expiration moots an appeal from the judgment granting that order, because there is no relief left to grant in that appeal, but statute applies the public interest exception to the mootness doctrine.  
L.E.C., Respondent, v. K.R.C., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110515

Personal Injury

Assumption of the risk applied to Six Flags Fright Night 
Plaintiff alleges that she suffered an injury while fleeing from a scary clown at defendant Six Flags’ Fright Night. On plaintiff’s claim of negligence, no recovery is possible when the defense establishes the defense of implied primary assumption of the risk. Implied primary assumption of the risk occurs when plaintiff voluntarily engages in an activity while knowing of its inherent danger. An inherent danger is something essential to the structure of an activity. “Six Flags cannot take the fright out of Fright Fest, just as baseball teams cannot remove their bats and balls without fundamentally changing the game.” Implied primary assumption of the risk relieves defendant of all duty to protect plaintiff from that risk. Plaintiff witnessed the activities of defendant’s scare actors for three hours before her encounter with the scary clown. Even if plaintiff showed that the scary clown chased her, the result would be the same. Summary judgment for defendant affirmed.  
Carly Munoz, Appellant, vs. Six Flags St. Louis, LLC d/b/a Six Flags St. Louis and John/Jane Doe, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111118


Judgment incomplete 
Rule requires circuit court’s judgment on the motion to include “findings of fact and conclusions of law sufficient to allow the appellate court to conduct a meaningful appellate review.” A conclusion must “identif[y] ‘any facts or parts of the file or record that supported that conclusion.’” Circuit court’s judgment failed to identify and adjudicate two of movant’s claims, and such omission is not within any exception to the rule, so the Court of Appeals remands the action for adjudication of those claims.  
Timothy Davis vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85335

Real Estate

Lis pendens explained 
Whenever an action reasonably related to title in real estate is pending in circuit court, statute provides an “unqualified right, and requirement, to record a lis pendens” notice that is absolutely privileged. Circuit court’s judgment invalidating the Notice of Lis Pendens in petitioner’s claim for filing a false document, was error. Respondent’s unilateral satisfaction of judgment, without collection of the judgment, cannot moot the appeal. Appeal of a judgment that constitutes the basis, legal or factual, for a separate action is not moot.  
Kyle Odermann and Audrey Odermann vs. Gerald Mancuso, Desarae G. Harrah and Harrah Law, LLC 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85561 and WD85607