Case summaries for June 25 - July 1, 2021

Administrative | ADR | Appellate | Civil | Criminal | Insurance | Local Government | Orders of Protection | Post-Conviction | Workers' Compensation

Administrative

Sunshine Law Violations Adequately Pleaded
Sunshine law allowed respondent to charge appellant for “staff time” and “research time” “required for fulfilling public records requests [,]” and charge in advance for copying, but that does not include charging in advance for attorney review time. Statutes required respondent to provide the “earliest time and date that the record will be available for inspection [,]” and appellant pleaded a violation of that provision by alleging that respondent estimated the time from date of payment, not the date of request. Statutes required respondent to provide “a detailed explanation of the cause for further delay [,]” appellant pleaded a violation of that provision, and respondent’s explanation in circuit court was no substitute. Appellant’s allegations of improper redaction and violations both purposeful and knowing raised “a fact question that cannot be resolved on a motion for judgment on the pleadings” on which respondent has the burden of proof, so judgment on the pleadings was erroneous.  Constitutional claims not raised in circuit court were waived in appellate court.
Elad Gross, Appellant, vs. Michael Parson, et al., Respondents.
(Overview Summary)
Supreme Court of Missouri - SC98619

ADR

No Arbitration by Adhesion
Federal Arbitration Act applies to all arbitration agreements, but includes a savings clause that preserves State law defenses, which include the defense that an agreement is a contract of adhesion.  “A contract of adhesion is a form contract created and imposed by a stronger party on a weaker one [,]” and no one expects a party to negotiate or even read it, and so constitutes an efficient way to do business. So, except for matters excluded by statute, a contract of adhesion is enforceable, but only to the extent of a reasonable person’s expectations. A retail customer’s signature on a cash register receipt, loosely referring to arbitration of any dispute only fully set forth in a separate document of ten single-spaced pages, “screams of” adhesion, when applied to tangentially related events five years later.  A reasonable party expects arbitration of claims based on billing disputes, but not claims based on appropriation of images from a retail customer’s phone. “The totality of the circumstances is compelling” so the Court of Appeals affirms the circuit court’s denial of appellants’ motion to compel arbitration.  
Breanna Rose, Respondent, vs. Santiago E. Sabala, Jr., Respondent, and Verizon Communications, Inc., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109193

Confirmation Is Not an Insurers’ Day in Court
Circuit court granted insurer’s motion to intervene in insured’s action under the Human Rights Act, but insurer dismissed that action and went to arbitration. Insurer declined an invitation to attend arbitration of insured’s claims, then sought to intervene in an action to confirm the arbitration award. Statute governing intervention as a matter of right set a deadline that insurer did not meet; “the liability of an insurer as potential indemnitor of the judgment does not constitute a direct interest in such a judgment so as to implicate intervention as of right in that action [;]” and intervention in the circuit court action was irrelevant. “Insurers will have their day in court upon the question of its liability, but it was not at the Confirmation Proceeding.” For permissive intervention, insurer’s challenges to arbitration had nothing in common with the parties to arbitration. Failure to challenge a finding of fact in circuit court, or to raise a constitutional challenge to a ruling, waives that challenge on appeal. Circuit court’s rulings are subject to appeal, but not the effects of that ruling, and not a ruling that does not appear on the record.
Harold Barnett, Respondent, vs. Columbia Maintenance Company, et al., Respondents, Amco Insurance Company and Depositors Insurance Company, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109008

Appellate

No Points Relied On, No Appeal
Appellate brief is not “fair and concise” as required by rule. Appellant’s brief had no points relied on, statement of facts “replete with arguments, accusations, and caselaw discussion” and lacking references to the record, no standard of review, and no argument supporting reversal. Appellant also filed no transcript. Without knowing what happened and any suggestion that any ruling constituted reversible error, no appellate review is possible, and the Court of Appeals dismisses the appeal.
Isaiah Deere and Isabel Deere by her next friend William Jesse Blankenship, Jr., and William Jesse Blankenship, Jr. vs. April I. Deere
(Overview Summary)
Missouri Court of Appeals, Western District - WD83906

Transcript Required
Review of evidentiary challenges requires an understanding of the evidence, which cannot happen without a transcript, which appellant omitted. That, and violation of rules governing statement of facts and standard of review, make appellate review impossible, so the Court of Appeals dismisses the appeal.
Timothy G. Vogel vs. Robert S. Steffen
(Overview Summary)
Missouri Court of Appeals, Western District - WD83856

Civil

Good Cause for Reviving Judgment Explained
Rule governing revival of judgment requires a timely “motion to revive the judgment and nothing more.” The only defense is good cause, which does not include delayed compliance with a circuit court order. The record shows creditor’s timely motion and respondent’s appearance, but no good cause during nearly seven years of collection efforts preceding judgment against appellant, so judgment in denying revival was erroneous.
Dean Machinery Company vs. Anthony Joseph Rigoli
(Overview Summary)
Missouri Court of Appeals, Western District - WD84108

Criminal

Harassment Conviction Reversed
The elements of harassment in the second degree include the purpose to cause emotional distress, which means more than everyday “uneasiness, nervousness, [or] unhappiness [.]” The Juvenile Office showed that appellant’s sexually explicit remark had a purpose to communicate disrespect to a detention aide, but did not show a purpose to cause her emotional distress. Court of Appeals reverses judgment of commitment and orders appellant discharged.
In the Interest of: R.M. vs. Juvenile Officer
(Overview Summary)
Missouri Court of Appeals, Western District - WD83769

Statutes of Limitation No Bar to Prosecution
On a motion for post-conviction relief, movant claimed that trial counsel was ineffective for failure to raise the statute of limitations as a defense. That defense’s elements include the age of the victim and other matters that movant did not address. But the record in the underlying criminal action shows facts that tolled the statute in effect at the time of the offenses charged, and that the General Assembly amended the statute by removing a time limitation for that offense, so that before the earlier statute barred the prosecution, the new statute allowed it indefinitely. “[A] criminal defendant has no vested right in a statute of limitations unless that statute of limitations expires before the defendant is criminally charged.” Failing to assert a meritless defense does not show ineffective counsel, so circuit court did not err in denying relief.
Maurice P. Webber vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83591

No Error Shown as to Distinguishable Incidents
Submitting multiple distinguishable incidents of an offense in a single verdict director threatens the right to a unanimous verdict in a criminal case, because each juror might find defendant guilty, not as to the same incident. That is not a problem when multiple incidents are indistinguishable. As to one offense, appellant did not show the evidence supporting separate instructions. As to another offense, the record shows one incident distinguished from other incidents but, even if that offense merited more distinction in the instructions, appellant did not show that the absence of such information was reasonably likely to have changed the outcome at trial.
State of Missouri vs. Robert J. Tabberer
(Overview Summary)
Missouri Court of Appeals, Western District - WD83536

Identification of Defendant Was Sufficient
Identification of defendant by name and family status was sufficient to support a finding that defendant was the perpetrator of offenses described at trial. “[A]n in-court identification is not always required.” Submitting multiple indistinguishable incidents of an offense in a single verdict director does not threaten the right to a unanimous verdict in a criminal case, and appellant showed no evidentiary distinction among the incidents included in the time period specified in the instructions, so appellant showed no plain error in instructions. Defendant jointly proffering instructions waives error.
State of Missouri vs. Felipe Torres Alvarez, Jr.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83426

Offenses Indistinguishable
“Time is not of the essence in sex offense cases under Missouri law” and statute provides that, where time is not of the essence, imprecision does not invalid the information. Rule provides that the information against defendant must allege facts that describe each element of the offense charged, including time and place, and that compliance with Supreme Court forms is sufficient. Information, alleging in separate counts a one-year period and a three-year period, sufficiently alleged when the events occurred for defendant to prepare a defense. Defenses of alibi, lack of access, and other innocent contacts, were unaffected by the specific location of victim’s bedroom, so the information was not inadequate as to alleging place. State’s reference during voir dire, that the defense might “possibly” offer evidence, did not address the burden of proof and did not require a curative instruction. Statute provides that denying a strike for cause against a venire person is not grounds for appeal when a peremptory strike eliminated that venire person. Counsel may have a witness pre-empt impeachment by explaining away the basis for impeachment without having to await impeachment. Expert evidence that child victims delay disclosure was generalized, relevant, helpful, and admissible under statutory standards. Admission of child victim’s out-of-court statements was consistent with statutory standard and did not prejudice defendant, because the statements were cumulative of testimony from child victim, who was present at trial and subject to cross-examination. When multiple allegations and evidence described indistinguishable incidents—“repeated,  identical [, and] committed at the same location and during a short time span”—jury instructions need not distinguish among those incidents to safeguard a unanimous verdict, because “there was no risk that the jurors could have based the conviction[] on different” incidents. For a single distinguishable incident, instructions sufficiently distinguished the incident by place and time. Missouri abolished the corroboration rule and destructive contradictions doctrine, so the victim’s testimony alone was sufficient to find defendant guilty, notwithstanding the absence of physical evidence, and any inconsistencies in victim’s testimony were for the jury to address. State’s closing argument argued inferences from expert testimony, so it was based on the evidence, and the circuit court did not err in overruling defendant’s objection to it.
State of Missouri vs. Michael Lewis Gibbons
(Overview Summary)
Missouri Court of Appeals, Western District - WD83152

Immediate Flight Described for Murder in the Second Degree
When a circuit court denies a motion for acquittal, the standard of appellate review is “whether the State has introduced sufficient evidence from which a reasonable juror could have found each element of the crime beyond a reasonable doubt.” The elements of murder in the second degree by flight from a felony include immediate flight from the crime scene, meaning the continuous and uninterrupted actions of a defendant fleeing a crime scene, which the State showed with evidence of how fast defendant covered his escape route before colliding with victim.
STATE OF MISSOURI, Respondent vs. TOMMY R. MORRIS, Appellant
Missouri Court of Appeals, Southern District - SD36716

Insurance

Meth Testing Not Covered
Insured’s grandson consumed methamphetamine throughout the house and ran a meth lab in the basement. Homeowner policy excluded from coverage the costs of complying with an order to remediate any pollutant. The policy defined pollutant to include contaminants, and contaminants include meth, because meth made the house uninhabitable. The order, requiring remediation before re-occupancy, constituted an order to remediate, even though insured could have simply abandoned the property.
Annette Vogelsang, Appellant, v. The Travelers Home and Marine Insurance Company, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109377

Local Government

Rental License Ordinances Okay
City ordinance licenses residential landlords. Appellants challenged the ordinance as facially unconstitutional, meaning that the ordinance can never be lawful on any facts, but did not make that showing. Appellants did not show vagueness in separating provisions for civil and criminal penalties, leaving certain terms undefined, and provisions governing discipline and reinstatement of a license. License discipline procedure provides sufficient procedural due process. “Municipalities in Missouri have the police power to license and regulate businesses, including rental property, without violating the takings clause” and the ordinance’s eviction provision “is a valid supplement to state law because it is in harmony with the general law of the state.     
St. Louis Association of Realtors, Appellant, vs. City of Florissant, and Todd Hughes, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109207

Orders of Protection

Full Order Affirmed
Respondent secured the circuit court’s full order of protection based on appellant’s harassment by repeated communication. Appellant’s anxiety over exclusion from respondent’s child was not a legitimate reason for accosting respondent’s child because appellant “is not the child’s father [; appellant] is merely an ex-partner using Victim’s child as a weapon to intimidate her, including baseless allegations of child abuse.”
H.E.S., Respondent, v. T.J.B., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108988

Post-Conviction

No Prejudice Shown
Video showed defendant cooperating politely with police before refusing to answer further questions for health reasons. Showing the video did not violate defendant’s right to silence, so an objection would not have been meritorious, and trial counsel’s decision to make no objection was strategically sound. Appellant also failed to challenge a finding of fact that separately supports the judgment and requires affirming of the judgment.  
State of Missouri vs. Robert F. Seaton
(Overview Summary)
Missouri Court of Appeals, Western District - WD83787

Incorrect Advice Was Ineffective Assistance
A guilty plea is an expression of defendant’s choice. That choice must be properly voluntary, knowing, and intelligent. That does not occur when plea counsel gives advice, on which defendant reasonably relied, that is wrong on the law. The circuit court found that defendant reasonably relied on plea counsel’s misadvice that defendant was eligible for a treatment program. On those facts, the circuit court erred in concluding that defendant’s plea was voluntary, knowing, and intelligent. Prejudice consists, not in the result of defendant’s sentencing, but in defendant’s decision on whether to try the case.    
Dustin J. Hefley, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98876

Post-Conviction Authority Discussed
Circuit court exhausts its authority on imposition of sentence except as otherwise provided by law, which includes rules on post-conviction relief, whether post-conviction relief proceedings occur under the same case number as the criminal action or a separate case number. Therefore, circuit court had authority to set aside movant’s earlier guilty plea, vacate movant’s sentence, and reinstate the charges; and to re-sentence movant at a greater term of confinement on movant’s later guilty plea. Plea counsel was not ineffective for failing to challenge circuit court’s authority in the later plea hearing.
Walter Jack Staten, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98780

Record Must Show Inquiry of Abandonment
“To adequately review the issue of abandonment of counsel, the record must be clear enough for the appellate court to decide whether or not the motion court’s finding with respect to abandonment was clearly erroneous.” An implicit ruling on abandonment, consisting solely of a ruling on the amended motion, is insufficient to show that any inquiry occurred.  Remanded to make a record of the required inquiry.
Christina Halter, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108973

Workers' Compensation

No Qualifying Preexisting Disability Shown
The elements of a claim for Second Injury liability include a pre-existing condition, meaning a condition that is “(1) ... medically documented, (2) equal to at least 50 weeks of permanent partial disability, and (3) [within] one of the four [specified] criteria.” Those criteria include an injury to an “opposite extremity,” which does not describe claimant’s left shoulder and right knee. As to whether claimant’s conditions meet those requirements, an earlier action for workers’ compensation was relevant, though not the only source of proof, and the Labor and Industrial Relations Commission did not err in considering such evidence.  
GREGORY PHELPS, Appellant vs. MISSOURI STATE TREASURER AS CUSTODIAN OF THE SECOND INJURY FUND, Respondent
Missouri Court of Appeals, Southern District - SD36998