Case summaries for June 21-27, 2024

Appellate | Civil | Constitutional | Criminal | DWI | Employment | Employment security | Insurance | Personal injury | Post-conviction | Real estate

Appellate

No review de novo for contested fact findings
Rule required appellants’ brief to recite and apply the correct standard of review. When the theory on appeal was the circuit court’s erroneous declaration of the law or erroneous application of the law, appellate court review was de novo. When no facts were contested in circuit court, appellate courts accorded no deference to the circuit court’s findings of fact. But when the parties contested the facts in circuit court by disputing any evidence, appellate courts deferred to the circuit court’s findings of fact. On appeal from a judgment awarding title to land through adverse possession, appellants sought review of the circuit court’s findings of fact de novo. Failure to comply with the rule was grounds for dismissal; and impeded appellate review, in that the Missouri Court of Appeals would have to construct an argument for appellants, which would breach an appellate court’s neutrality. The Missouri Court of Appeals dismissed the appeal.
Gerald Titus and Anna Titus, Respondents vs. Scott Dunavant and Lisa Dunavant, as husband and wife, if living, their unknown heirs, devisees, grantees, assignees, alienees, legatees, personal representatives, and all other persons, corporations, or successors claiming by, through, or under them, Appellants
Missouri Court of Appeals-Southern District - SD38153

Civil

On summary judgment, legal conclusions were not additional facts
Failure to comply with discovery did not prejudice the requesting party when the requesting party obtained the disputed information through other means. A party sued only in individual capacity did not have to disclose information obtained in an official capacity. A defending party could prevail by negating any single element of the claim. On summary judgment, a party could prevail by establishing — alleging with admissible evidence in support — facts that entitled the moving party to a favorable judgment. When the moving party met that burden, the non-moving party had to raise a genuine dispute as to those facts, which the non-moving party could do by establishing additional facts but not by asserting legal conclusions. Matters in appellant’s argument beyond appellant’s point relied on are unpreserved. In an action for defamation, the elements included falsity and actual malice, while affirmative defenses included truth, qualified privilege, and plaintiff’s status as a limited purpose public figure. Plaintiff’s allegation that defendant acted without due diligence was not relevant to, and so did not negate, defendant’s affirmative defenses.
(Overview summary)
David L. Johnson vs. Mario Usera
Missouri Court of Appeals-Western District - WD86006 Consolidated with WD86058

Constitutional

Lake area business district laws stricken
Constitutional provisions bar any political subdivision from transferring public money to a private entity. Statute provided for the creation of a district whose governing body could levy a sales tax but was not subject to election by the public or appointment by a public official. “Merely because an entity is tasked with spending money for public purposes does not make the entity inherently public.” The unconstitutional section and the remaining sections were too connected to be severable, so the Supreme Court of Missouri entered the judgment that the circuit court should have struck all sections and remanded the action to the circuit court for dissolving the districts and winding up their business.
(Overview summary)
Laura Salamun, et al., Appellants, v. The Camden County Clerk, et al., Respondents; and Gail Griswold, et al., Appellants, v. Miller County, et al., Respondents.
Supreme Court of Missouri - SC100076

Criminal

Self-defense
Appellate courts review a conviction with deference to the circuit court’s determinations on credibility, which may embrace or reject all, some, or none of any party’s evidence. On a charge of murder in the second degree, the defendant raised the justification of self-defense under the Castle Doctrine statute. The elements of that defense included a reasonable belief in the necessity of deadly force. The state negated that justification with evidence that defendant voluntarily admitted the victim into defendant’s residence. The record also supported the circuit court’s finding that a text message from victim to defendant was not a serious threat of physical violence. “Words alone are insufficient to support a claim of self-defense.”
(Overview summary)
State of Missouri vs. Alfred Hakeem Chism
Missouri Court of Appeals-Western District - WD86215

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 “impos[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

Propensity evidence okay
Constitutional provision allowed propensity evidence on a showing that included probative value. Express findings were not necessary. Probative value included “the similarity between the prior act and the charged act, the amount of time between the acts, and the prosecution's need for the evidence to prove its case.” Nine to 20 years was not too remote in time, similarities in victims and technique were highly probative, and the prosecution needed that evidence to counter attacks on the credibility of a victim in the charged act. Matters minimizing prejudice included: use of the evidence for corroboration; the dispassionate nature of the evidence; comments from the state; and instructions from the circuit court, emphasizing that the charged acts alone were at issue.
(Overview summary)
State of Missouri vs. Benjamin David Watson
Missouri Court of Appeals-Western District - WD85893

DWI

Habitual offender status shown
Plain error review required a clear error with a decisive effect, which did not occur when a witness testified to driver’s admission that driver had no license and no insurance, because such evidence was admissible as background. No plain error review is possible for the entry of evidence to which the defense stated, “No objection,” without a mutual understanding that it meant, “No further objection.” Statute provided that portable breath test results constituted probable cause to believe that an offense had occurred only, not as evidence of intoxication, but no manifest injustice occurred when the circuit court allowed such evidence because a “plethora” of other evidence showed intoxication. That evidence included an odor of intoxicants, glassy and bloodshot eyes, field sobriety test results including balance problems, and refusal of a breath test. Statutes enhanced driving while intoxicated from a class B misdemeanor to a class B felony on proof of driver’s status as a habitual offender, meaning five or more guilty findings on intoxication-related traffic offenses committed on separate occasions. Supporting evidence included charging instruments, docket sheets, and unsigned judgments showing sentencing on guilty pleas to operating a motor vehicle under the influence of alcohol.
(Overview summary)
State of Missouri, Respondent, v. James Kip Wilson, Appellant.
Missouri Court of Appeals-Eastern District - ED111611

Employment

“More of a causal connection” needed for negligent hiring, retention, and supervision
Rule governing judgment on the pleadings requires filing such a motion “within such time as not to delay trial[,]” which occurred when the movant filed the motion two years after commencement of the action, but before the circuit court set a trial date. The circuit court did not have to treat the motion as one for summary judgment when the circuit court did not consider any matter outside the pleadings. In an action for negligent hiring, negligent retention, and negligent supervision, the elements included proximate cause, which required pleading “more of a causal connection” than other claims. Alleging that defendant employer supplied employee with office equipment that employee used to harm plaintiffs was not enough.
(Overview summary)
Anne Marie Campbell, et al., Appellants, vs. Baxter International, Inc., et al., Respondents.
Missouri Court of Appeals-Eastern District - ED112259

Employment security

Earlier rulings not timely appealed supported later ruling
Earlier rulings of a deputy concluded that claimant was ineligible for, and so received overpayment of, benefits. When claimant failed to timely appeal those rulings, such rulings became final, and were no longer subject to any appeal. The rulings also became substantial and competent evidence to support a later notice of assessment, and the Missouri Labor and Industrial Relations Commission found no credible evidence to controvert the notice of assessment. Therefore, the Missouri Court of Appeals affirmed the commission’s decision upholding the notice of assessment.
(Overview summary)
Jamie Marx, Appellant, v. Division of Employment Security, Respondent.
Missouri Court of Appeals-Eastern District - ED111992

Insurance

No appeal from partial judgment
Rule allowed certification of judgment for appeal but only if the judgment resolved at least one judicial unit, meaning all claims for and against at least one party or sufficiently distinct from the remaining claims. Judicial economy did not constitute an exception to that rule. In an action by an insured against an insurer for bad faith failure to settle, the circuit court ruled that non-economic damages were not available, but did not rule on any other issues. That judgment was not eligible for certification, so the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Philip Stratman vs. Allstate Fire and Casualty Insurance Company
Missouri Court of Appeals-Western District - WD86448

Personal injury

Implied primary assumption of the risk
The doctrine of implied primary assumption of the risk provides the following. When plaintiff knew and appreciated the risk in an activity, and participated in the activity anyway, plaintiff could not recover for defendant’s failure to protect plaintiff from that risk. The only exception was when defendant altered or increased the risk. No such increase or alteration resulted from when plaintiff went from one-on-one weight training to a class of six or seven persons because the reduced personal supervision was inherent in the class and known to plaintiff. On those facts, the circuit court erred in denying defendant’s post-trial motion, so the Missouri Court of Appeals reversed the circuit court’s judgment for plaintiff, and entered judgment for defendant.
(Overview summary)
Melissa Moody, Respondent, vs. Dynamic Fitness Management, Ltd., Appellant.
Missouri Court of Appeals-Eastern District - ED111786

Instructions on direct and imputed liability okay
Instructions could offer only one theory of imputed liability but could offer multiple theories of direct liability in addition to one theory of imputed liability. On a theory of respondent superior, when jury finds the employer liable and not the employee, judgment notwithstanding the verdict is due for the employer; but that did not bar claims of direct liability against the employer. Contract and case law supported liability in the exercise of duties undertaken by defendant to plaintiff. “The duty of care where children are involved always requires more vigilance and caution than might be required where adults are concerned [especially when] the party responsible for the child is or should be aware of a particularly dangerous situation.” Evidence supporting employer’s direct liability included employer’s determination of a safe place for plaintiff’s school bus stop and failure to provide sufficient information to its employee school bus driver for the driver to drop off plaintiff at plaintiff’s school bus stop. A driver’s criminal disregard of the school bus’s warning signs did not constitute an intervening and superseding cause of plaintiff’s injuries.
(Overview summary)
Dylan Jackson, By and Through His Next Friend, Rose Jackson, Respondent, vs. First Student, Inc., Appellant, and Tomika L. Richardson, Defendant.
Missouri Court of Appeals-Eastern District - ED111487

Post-conviction

No dismissal for failure to appear
Rules governing post-conviction relief provided that movant need not appear personally at an evidentiary hearing, and required the circuit court to issue findings of fact and conclusions of law sufficient for appellate review, with limited and inapplicable exceptions. Therefore, movant’s appearance at an evidentiary hearing only through counsel did not support dismissal for failure to appear, and dismissal for failure to appear constituted clear error. The Missouri Court of Appeals reverses and remands for further proceedings.
(Overview summary)
David J. Escalona vs. State of Missouri
Missouri Court of Appeals-Western District - WD86319

Trial counsel need not anticipate erroneous rulings
The elements of a claim for relief based on ineffective assistance of counsel included substandard performance. The state negated that element by showing that movant agreed with counsel’s strategy. That agreement also showed that the choice of defense by alibi was soundly strategic. The danger of impeachment by telephone records was diminished by the lack of foundation for entering those records into evidence. “[Trial] counsel correctly determined the phone records were not admissible under the business-records statute and reasonably believed they would not be an issue at trial; his evaluation of the strategy’s viability is not unreasonable for failing to anticipate that the trial court would erroneously admit the phone records.” To continue the alibi defense was sound strategy, given promises made in trial counsel’s opening statement, and movant’s representations to trial counsel.
(Overview summary)
Jimmie L. Verge vs. State of Missouri
Missouri Court of Appeals-Western District - WD86065

Missing exhibits result in dismissal
Movant sought relief based on a claim that counsel was ineffective for misadvising movant. The circuit court denied relief based on the plea hearing and sentencing hearing transcripts. Those transcripts were part of the record on appeal that appellant had to file, but appellant did not file them. That lapse precluded meaningful appellate review so the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Romell Sanders, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED111749

Real estate

Public prescriptive easement awarded
The elements of a claim for a prescriptive easement included 10 years of uninterrupted adverse use. Adverse use meant use without recognition of the owner’s rights and was presumed on evidence that the use was open, continuous, and visible. Visibility rendered the owner’s knowledge irrelevant. That presumption was subject to rebuttal with evidence that the use was permissive, but both parties’ evidence showed that the use was not permissive.
DICK PORTON, AMY PORTON, and NATHAN ATCHISON, Respondents v. KEITH BOX and SARAH BOX, Appellants
Missouri Court of Appeals-Southern District - SD37755