12:33 PM

Case summaries for June 19 - June 25


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 | DWI | Employment | Employment Security | Evidence | Legislative | Local Government |

Personal Injury | Post-Conviction | Probate | Real Estate | Workers' Compensation


No Plain Error in Circuit’s Statements
Appellant did not show plain error in circuit court’s striking of a venire person sua sponte, description of voir dire as a joint exercise, and displaying familiarity with each party’s counsel. Appellant did not show that those statements inflamed or biased the jury. Appellant’s evidence did not rob respondent’s evidence of probative force in support of the damages awarded, so denial of remittitur was not error. Without objections, respondent’s closing argument and jury instructions cannot constitute error. Without any other error, no cumulative error can prejudice appellant.
Gary Veal, Respondent, v. Stacey Kelam, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108179


Foundation for Facebook Screenshots Okay
The State laid the foundation for admitting into evidence a screenshot from appellant’s Facebook page, with testimony authenticating posts as authored by appellant. The witness testified that the witness recognized appellant’s Facebook page, and the posts, and that the witness recognized appellant’s distinctive writing style. Even if that evidence was not admissible, it caused no prejudice because it was cumulative of other evidence in which appellant described his physical abuse of victim. Remanded for correction of judgment nunc pro tunc to accurately reflect jury verdicts.
State of Missouri vs. Joseph Michael Wilson
(Overview Summary)
Missouri Court of Appeals, Western District - WD82597


Refusal of Test Shown
Statutes provide circuit court review of the Director of Revenue’s decision to suspend driver’s license for refusing a chemical test. The Director must show that, while under arrest on reasonable grounds to believe that driver was driving while intoxicated, driver refused a chemical test. Statutes provide that an arresting officer’s narrative and Alcohol Incident Report are admissible evidence on the issue of refusal. The Director need not call the arresting officer as a witness, driver may subpoena the arresting officer, and driver did not do so. “[Driver]'s assertion that [the arresting officer] could not be subpoenaed because his first name was unknown was disingenuous [when the officer]'s department and badge number were on his report, [and driver did not allege] that he made any actual attempts to locate or subpoena [the arresting officer.]” Circuit court need not believe driver’s evidence.
Benjamin A. Collier vs. Director of Revenue
(Overview Summary)
Missouri Court of Appeals, Western District - WD83072


Proper Instructions Overcome Uncorrected Misstatement of the Law
Plaintiff did not show how a signature, unnecessary to an order, constituted an adverse job action, so circuit court did not err in directing a verdict for the signatory. And, even if it did, no prejudice resulted because the jury verdicts in favor of other defendants show that the jury would have found for the supervisor, too. Comparator evidence compared discipline of other officers close enough to plaintiff to be logically relevant. But related exhibits were legally irrelevant because they were not contrary to testimony and their contents were not in dispute. That made the exhibits cumulative and not legally relevant. Therefore, their exclusion was not prejudicial. Defendants’ verdicts affirmed, so whether circuit court should have instructed the jury on punitive damages is therefore moot. Against the presumption that the jury followed its instructions, and the correct form of the instructions, appellant failed to show that any prejudice resulted from the defendants’ misstatement of the law even without a spoken correction from the circuit court.
Ronell Johnson, Appellant, v. City of St. Louis, Missouri, et al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107679

Employment Security

Tardiness Is Not Misconduct
Statute defines misconduct that disqualifies a claimant from benefits to include chronic tardiness or more than one unapproved absence, neither of which is satisfied by showing a single incident of tardiness. Award of benefits affirmed.
Lisa Hoeft, Respondent, v. True Manufacturing Company, Inc., Appellant, and Division of Employment Security, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108292


Differing Verdicts Not Inconsistent
An argument that a third person was guilty of the offense upon victim charged against defendant must stand on evidence directly connecting the third person to the offense. Admitting into evidence ammunition, matching the ammunition used in the offense charged and found in defendant’s residence, was harmless because it was cumulative of testimony about that ammunition. Statement of defendant obtained in violation of the right to counsel is admissible as impeachment and rebuttal. Evidence of charges pending against a witness is admissible, with evidence of how such charges affect the witness’s testimony, but only if the charges are from the same prosecutor. To preserve error in exclusion of evidence requires an offer of proof. On excluded attempt at impeaching victim, defendant made no more offer of proof than a witness’s testimony that the victim lied, which does not establish victim’s reputation for truthfulness. When acting together is an element of the offense charged, co-defendant’s acquittal is not inconsistent with a finding of guilt against defendant. “The jury could have found that Codefendant and Defendant acted together, but that only Defendant acted with the requisite mens rea.” The sufficiency of the evidence depends on the State’s evidence at the close of its case, not what happens when the jury acts on its instructions, so “codefendant’s acquittal does not necessarily demonstrate a lack of evidence that he and [d]efendant acted together.” Boxes checked on form, inconsistently with sentences as spoken in open court, do not necessitate a remand; Court of Appeals enters the judgment consistently with the sentence as the circuit court announced it.
State of Missouri, Respondent, v. Travon Dornay Johnson, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107732


Claims Stated Against Vote-By-Mail Statute
Statute allows absentee ballots by mail without notarization for some, but not all, voters which appellants challenge under Missouri Constitution's protection for voting rights. A motion to dismiss for failure to state a claim attacks the face of the petition and does not reach the merits, that is, whether petitioners will prevail. Taking the allegations in appellant’s petition as true, for the purposes of a motion to dismiss, appellants stated claims for declaratory and injunctive relief. Remanded to deny the motion for dismissal, and consideration of amendments or voluntary dismissal, based on events pending appeal.
Missouri State Conference of the National Association for the Advancement of Colored People, et al., Appellants, vs. State of Missouri, et al., Respondents.
(Overview Summary)
Supreme Court of Missouri - SC98536

Local Government

Writing Required for Contract with Municipal Corporations
Statute requires a writing for enforcement of any contract with a municipal corporation. A municipal corporation is any public corporation exercising some function of government or performing some essential public service [,] which describes the Land Reutilization Authority of the City of St. Louis. Therefore, the absence of a writing precludes any action in contract, implied contract, or estoppel; and circuit court did not err in dismissing those claims against the respondent Authority. An earlier action bars a later action under res judicata, despite the allegation of facts not alleged in an earlier action, because those later facts are not operative facts; they do not support any different result. The Authority raised that affirmative defense on summary judgment, which came about on conversion from a motion for dismissal, so the circuit court’s order, allowing the Authority to amend its answer for allegation supporting res judicata, was not an abuse of discretion.
Epice Corporation, Inc., Appellant, v. The Land Reutilization Authority of the City of St. Louis, Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108226

Personal Injury

Talcum Powder Verdict Affirmed for Resident Plaintiffs
Missouri contractor’s manufacture of appellant’s product, used by non-resident respondents, was a sufficient contact between Missouri and non-resident respondents’ claims that vested circuit court with personal jurisdiction over appellant because appellant thereby purposely availed itself of the privileges to do business in Missouri. Appellants showed no prejudice from denial of severance despite differences in causation and reprehensible conduct, only “unfounded speculation” that joinder confused the jury, which circuit court’s instructions are presumed to countervail. In a products liability claim, the elements include causation of which causation in fact is a necessary but not sufficient component, and any error in allowing respondents’ counsel to comment on causation found a cure in the jury instructions on direct causation. Respondents’ evidence of direct causation was sufficiently probative on that component of the causation element, and need not refute or explain appellants’ evidence, to support a submissible case. In assessing the foundation for admitting testimony from three experts, the evidence of reliability for demonstrations and tests of products was sufficient, if it was true; and how reliable the sample was is not for the circuit court to decide. The evidence of a fourth expert, relying in part on the first three, was admissible without the fourth expert independently corroborating the first three experts’ results. A claim for punitive damages requires clear and convincing evidence of outrageous conduct, or evil motive, or reckless indifference. Such evidence included appellant’s knowledge that asbestos was dangerous, and that some asbestos was more dangerous than others, and that appellants’ products contained the more dangerous kind; their decision to avoid a remedy for that danger because of the expense; and their efforts to defeat improved industry standards that would detect that danger. Factors in determining whether punitive damages are excessive include statutory penalties, the small amount of which means that the statutory amount is not probative of the deterrent necessary against a multi-billion-dollar corporation. Deterrence of such an entity’s conduct, especially when concealed, requires a much larger ratio of punitive damages to compensatory damages than 1:1. The reprehensibility of appellants’ conduct, which caused extensive medical harms to appellants’ customers solely for profit, also supports the amount of punitive damages awarded. As to non-resident respondents who alleged and showed only that appellants contracted with a Missouri resident as to a product that non-resident respondents used, but showed no other link between Missouri and non-resident respondents’ claims, respondents did not show sufficient contact to vest circuit court with personal jurisdiction over appellants. Non-resident respondents did not plead or prove the elements of any theory to impute one corporation’s liability to another. Under rule allowing the Court of Appeals to enter the judgment that the circuit court should have entered, the Court of Appeals re-apportions damages to reflect the actions for which the circuit court had no personal jurisdiction, and enters judgment accordingly.
Robert Ingham, et al., Respondents, v. Johnson & Johnson, et al, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107476


No Exception for Untimely Filing of Initial Motion Shown
Timely filing of the initial motion is a condition of relief, with exceptions that include third party interference, but movant must allege facts showing third party interference, at the latest, in the amended motion. The amended motion alleged no such facts, and that omission does not constitute abandonment, merely ineffective assistance of post-conviction counsel. The initial motion alleged no such facts, so the action is barred as untimely.
Andre Mitchell, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107953


Changing Beneficiary of IRA Was a Transfer in Fraud of Marital Rights
Statute, codifying common law on transfers in fraud of marital rights, applies “to any asset in which the surviving spouse had a marital right or interest that could have been recovered in the decedent spouse's estate but for a . . . transfer during the marriage [.]” That includes an individual retirement account even though that account designates a beneficiary. The statute provides a surviving spouse with an option to treat any gift from the decedent spouse as a testamentary transfer to the surviving spouse, and take it from the recipient, if the decedent spouse’s intent was to defeat marital rights. Evidence supported a conclusion that decedent spouse intended to impoverish surviving spouse to make surviving spouse eligible for government-subsidized health care, which would defeat marital rights.
Marilyn Carmack vs. Travis Carmack and Temple I. Baxley
(Overview Summary)
Missouri Court of Appeals, Western District - WD83184

Real Estate

Covenants Enforced, Attorney Fees Awarded for Appeal
Restrictive covenants expressly authorized association to enforce covenants by procuring an injunction against a threatened violation, which appellant’s temporary compliance did not negate, and appellant’s past recidivism showed. Covenants also provide an award of attorney fees against violator. Court of Appeals affirms judgment against appellant and adds an award of attorney fees on appeal without remand.
Sharon Dash, Angela Simmons, and Bill Blacksher, as Trustees of Riverwood Estates Homeowners Association, Respondents, v. Mark Barnaby, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108330

Workers' Compensation

No Evidence Necessary to Find Against Claimant
Respondent had no burden of proof at trial, so competent and substantial evidence was unnecessary to find for respondent, and the lack of such evidence is not grounds for reversal. Denial of benefits affirmed.
GINA BEAMAN, Appellant vs. LOWE'S HOME CENTERS, INC., Respondent
Missouri Court of Appeals, Southern District - SD36473