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2022
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Case summaries for June 24 - June 30, 2022

Summary

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.

Appellate | Business | Civil | Criminal | Elections | Insurance | Juvenile

Appellate

Transcript Necessary for Appellate Review 
Rule requires appellant to file the record on appeal, including the legal file and a transcript of circuit court proceedings. "Without a transcript we are unable to determine if there is a basis for concluding an alleged error occurred, whether such error was waived or invited, or even whether an alleged error resulted in manifest injustice so as to constitute plain error." When appellant charges error in circuit court's failure to consider a defense, appellant must show that defense was before the circuit court, which the record on appeal does not show. Appeal dismissed. 
Voepel Property Management Inc as Agent for the owner Isla Property Company, LLC vs. Timika Bates 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85073

Sanctions Awarded 
Appellants appearing pro se cannot have preferential treatment as to compliance with appellate rules. Appellant brought an appeal from an order denying eight post-judgment rulings but cites no standard of review and no law requiring reversal. Appellant’s uncorrected failure to comply with appellate rules on briefing leaves nothing for the Court of Appeals to review. Motion to impose sanctions granted, and case remanded to determine the amount of attorney fees to award respondent. 
Susan L. Brown (A/K/A Susan Brown-Thill), Trustee of the Eugene D. Brown Trusts Created by Trust Agreement Dated February 27, 1989, et al., vs. Richard L. Brown, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84347 

No Applicable Subsection of Rule Met 
Courts prefer to decide appeals on the merits, but the rule governing appellant's brief protects courts' neutrality, so courts can forgive only minor failures in compliance. "Of [the rule's subsections], six apply to an appellant’s brief. The brief submitted by Appellant in this case violates all six subsections." Appellant's brief shows not even an attempt to follow the prescribed template for points relied on. Appeal dismissed. 
Kaylisha Young, Appellant, v. Missouri Department of Social Services, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109900

No Applicable Subsection of Rule Met 
Courts prefer to decide appeals on the merits, but the rule governing appellant's brief protects courts' neutrality, so courts can forgive only minor failures in compliance. "Of [the rule's subsections], six apply to an appellant’s brief. The brief submitted by Appellant in this case violates all six subsections." Appellant's brief shows not even an attempt to follow the prescribed template for points relied on. Appeal dismissed. 
Arthur Jefferson, II, Appellant, v. Missouri Department of Social Services, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109899 

Business

No Consideration, No Enforcement of Promissory Note 
In an action to enforce a promissory note, producing the signed note showing the balance due constitutes a prima facie case, but contract defenses are available because a promissory note is a contract. A contract must have consideration. Consideration need not be contemporaneous with signing, and may be “antecedent debt or future needs,” but the circuit court was free to favor respondents’ evidence over the note-holder’s evidence on that matter. Because the circuit court found the note unenforceable, personal liability on the note is moot.    
DUNTON & ASSOCIATES, LLC, Plaintiff-Appellant v. A & J PRINTING INC., JIMMY L. EAKINS, and EAKINS PRESS, INC., Defendants-Respondents and WILLIAM DUNTON, LISA DUNTON, and ABACUS CPAs, LLC, Third Party Defendants 
Missouri Court of Appeals, Southern District - SD37092

Civil

Multiple Actions Yield Multiple Theories for Dismissal 
A dismissal was with prejudice, even though denominated as without prejudice, because re-filing would be futile unless dismissal was error. When the basis of dismissal is the allegations on the face of the petition, a separate motion is allowed, because that theory is like failure to state a claim. Motions to dismiss not based solely on the content of the petition, may have support in matters outside the pleadings, like evidence of other actions pending elsewhere. Actions between the same parties over the same subject matter may result in abatement—the dismissal of all but the earliest filed action—but plaintiffs pre-empted application of that doctrine by dismissing the earlier action. Splitting a cause of action results in the first judgment barring any later judgment, like res judicata, but different defendants are subject to separate actions. Matters outside the pleadings, and considered by circuit court, convert the motion to a motion for summary judgment on notice to the parties. Notice to the parties is waived when the parties acquiesce. “[A]n unincorporated voluntary association was not a legal entity apart from its members and could not be sued as a separate entity.” Lawyers held themselves out and did business as a law office, but not as a corporation or other entity that constitutes a person at law, at least not to plaintiffs. 
Jeschke AG Service, LLC, et al., vs. Daniel S. Bell, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84474              

Criminal

Amendments to Early Release Statutes Applied 
On a criminal conviction, to be eligible for any early release from a sentence of confinement, statutes required defendant to serve a minimum amount of defendant’s sentence. Amendments repealed and re-enacted the substantive statutes defining elements and degrees of offenses. Amendments also forgave that minimum for all offenses except those “contained in” specified statutes and, for some offenses, only specified degrees of those offenses. Appellant’s offense is contained in a specified statute but not at the specified degree.     
Timis Cobbins vs. Missouri Department of Corrections, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84628 

Jury Waiver Procedure Explained 
Constitutional provisions protecting the right to a jury trial require that "the waiver is constitutionally sufficient only if the record shows with unmistakable clarity that the waiver was made by the defendant himself knowingly, voluntarily, and intelligently; in other words, the record must show '[a] fully informed and publicly acknowledged consent of the [defendant]' and '[a] personal communication of the defendant to the court that he chooses to relinquish the right [to a jury trial].'' The preferred procedure is by detailed colloquy on the record with defendant. A waiver can be sufficient if defense counsel announces defendant's waiver on the record in open court if the defense files a written waiver signed by the defendant.  A waiver was not sufficient when defense counsel requested a bench trial, even in defendant’s presence, and defendant made no objection. A witness's testimony that defendant waived jury trial is no substitute. On those facts, plain error occurred when the circuit court conducted a bench trial. Conviction reversed and remanded for a new trial. 
State of Missouri, Respondent, vs. Jacob Hilbert, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109608

Elections

Challenge to Summary Mooted 
On an issue proffered for a ballot by initiative petition, statutes required the appellant Secretary of State to prepare a ballot title and summary that is sufficient and fair, under which the initiative's proponents must collect voter signatures and present a sufficient number to appellant. The circuit court ruled appellant's summary unfair and insufficient. But the initiative's proponents presented no signatures. 
Jacob Hummel vs. John R. Ashcroft, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85004                            

Insurance

Actual Cash Value and Replacement Cost Value Discussed 
Homeowner’s insurance policy paid for a covered loss in two steps: actual cash value to indemnify the insured to pre-loss status, and replacement cost value to pay for any repairs necessary and done. Insured could make an election, but did not have to, so an award of actual cash value was consistent with the policy. Actual cash value includes depreciation of materials, but the policy was ambiguous as to depreciation of labor, so the court excludes labor from depreciation. Insured’s payment, reduced for labor depreciation, damaged insured in the amount of the reduction. 
Cynthia Franklin vs. Lexington Insurance Company 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84816                              

Juvenile

Appearance by Video Violated Confrontation Clause 
Confrontation Clauses protect the right to appear in person at a juvenile adjudication hearing because confinement may result. Witness-specific findings are necessary to curtail that right, even for concerns over COVID-19, especially when the only witnesses against appellant appeared remotely. Vacated and remanded. 
In the Interest of: A.S.B. vs. Juvenile Officer 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84244