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Case summaries for July 1 - July 7, 2022


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.

Administrative | Appellate | Civil | Corporations and Other Entities | Criminal | Employment | Family | Juvenile | Post-Conviction


Challenger Wins Appeal in Circuit Court, Loses Appeal in Court of Appeals   
Statutes provide that school district’s decision to terminate a teacher was subject to an appeal from the teacher in circuit court, where the teacher prevailed, and that the circuit court judgment was subject to an appeal in the Court of Appeals. Though the school district appealed the judgment, the judgment is not subject to review, and the school district is not the appellant. Because the teacher initially appealed the school district’s decision, the teacher is the appellant, and the Court of Appeals reviews the school district’s decision. The school district decision is presumed correct, and appellant teacher has the burden to show otherwise in accord with the rules of appellate procedure. Appellant teacher failed to carry that burden because 75-page points relied on, with insufficient citations to law and references to the record, are not subject to review without speculation. That would require the Court of Appeals to take sides, which it will not do, so the “presumed-correct“ school district decision stands. Judgment for teacher reversed and remanded for entry of judgment for the school district.   
KIMBERLY L. WALDNER, Plaintiff-Respondent v. DEXTER R-XI SCHOOL DISTRICT, Defendant-Appellant   
Missouri Court of Appeals, Southern District - SD37335


Evidence Contrary to the Judgment Sometimes Considered  
“An appellant bears the burden to overcome many presumptions on appeal, including the presumption that the circuit court’s judgment is correct.” Appellant cannot carry that burden by relying on testimony that the circuit court did not believe. “[A] not-supported-by-substantial-evidence challenge  ... only considers the evidence favorable to the judgment.” An against-the-weight-of-the-evidence challenge considers evidence contrary to the judgment but only if not subject to a credibility determination. No appellate court can consider evidence without a reference to the record by page number, because looking for that evidence would make the court into appellant’s advocate, and the courts must remain neutral. Appellant did not show that the circuit court erred so the judgment, presumed correct, stands affirmed.  
Missouri Court of Appeals, Southern District - SD37371


Improper Service Voids Judgment   
Circuit court’s authority requires service of process on defendant, which did not occur by leaving process where defendant did not reside, and actual notice of the action is no substitute. On a motion to set aside a default judgment, the circuit court’s discretion to grant is greater and discretion to deny is less, and heightened scrutiny applies when the default judgment awarded custody of a child. Review is ordinarily for abuse of discretion, but whether lack of service renders a judgment void is a matter of law subject to review de novo.  
Rahsalyn C. Scott, By and Through Her Next Friend, Damon A. Scott, II and Damon A. Scott vs. Emerald K. Borden    
(Overview Summary)   
Missouri Court of Appeals, Western District – WD84788

Corporations and Other Entities

Member Can’t Sue for LLC’s Damages  
Standing is necessary to a court’s authority and is subject to the court’s challenge sua sponte. On a claim for breach of contract and counterclaim for quantum meruit, a limited liability company was a party to the contract but was not a party to the action. The petitioner signed the contract for the limited liability company as its agent, which gave the agent neither the standing nor the liability of the principle, so the claim and counterclaim were subject to dismissal without prejudice.  
Missouri Court of Appeals, Southern District - SD37226 


Appellate Review of Self-Defense Explained   
Statutes provide that “[d]eadly force is only justifiable when the defendant reasonably believes that such deadly force is necessary to protect himself [or herself] from death, serious physical injury, or any forcible felony.” When defendant raises self-defense, the State has the burden of proof to negate that defense. Circuit court did not err in excluding defense testimony, about victim’s specific acts of violence, as too remote in time. Even if the circuit court misstated the law on self-defense, the evidence supports the circuit court’s ruling. A criminal judgment is subject to review on the facts most favorable to that judgment so, on a motion to acquit based on self-defense, circuit court’s denial is subject to reversal only on “undisputed and uncontradicted evidence of self-defense.” The evidence showed that the victim was not armed, and not within reach of defendant, when defendant fired five shots at victim, including at least two while victim was down, and at least one in the back. Defendant’s “self-serving explanations ... plainly rejected as not credible” do not control.     
State of Missouri, Respondent, vs. Anthony Levar Sinks, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District – ED109710 


Authority Lapsed with Time   
Statutes limit the Human Rights Commission’s time for administrative processing of a complaint. A dispute over the Commission’s authority does not bar the Commission from investigating the complaint and does not extend the time to investigate. At the end of that time, the Commission loses authority over the complaint, and has authority only to issue complainant a right-to-sue letter. Continued processing, eventually determining that complainant’s employer was exempt from any action and denying a right-to-sue letter, was unauthorized after the time lapsed. Circuit court did not err in issuing a writ of mandamus requiring the Commission to issue complainant a right-to-sue letter.   
State of Missouri, ex rel., Jeanette Layton vs. Missouri Commission on Human Rights, et al   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD84594 and WD84623


Sale of Divided Property Triggered Division of Proceeds   
Denial of a cross-motion for summary judgment is subject to appeal when the “motions for summary judgment were ‘intertwined’ in that they involved the same legal issue and there are no material facts in dispute [.]” A separation agreement constitutes a contract between the parties. The parties’ separation agreement transferred ownership of real estate holding entities to respondent. The separation agreement also allocated between the parties any proceeds from a future sale or liquidation of those entities, which occurred when some of those entities sold all or essentially all their assets, and re-investing the proceeds in others of those entities did not alter that result. The Court of Appeals reverses judgment with an award of attorney fees for respondent, and remands to circuit court to enter judgment for appellant with an award of attorney fees, at trial and on appeal.   
Joyce Elaine Bozarth vs. Edgar Forshe Bozarth   
(Overview Summary)   
Missouri Court of Appeals, Western District – WD84827 

Credibility Characterized Account’s Content   
In an action for dissolution of marriage, statutes require the circuit court to divide marital property, which excludes separate property, including gifts. Gifts include insurance proceeds. Insurance proceeds were received by appellant and appellant’s brother, and deposited in a bank account, according to appellant. But the circuit court found that evidence not credible, and appellant opened the bank account during the marriage, so the account is presumed marital property. Marital property and debt are subject to fair and equitable division of value, which the circuit court accomplished by ordering an equalization payment, and appellant did not show otherwise.     
In re the Marriage of Robert Shawn Eakens and Billie Jean Eakens ROBERT SHAWN EAKENS, Petitioner-Appellant vs. BILLIE JEAN EAKENS, Respondent-Respondent   
Missouri Court of Appeals, Southern District - SD37063              


Remote Appearance Violated Confrontation Clause   
Juvenile proceedings are subject to the protections of criminal procedure, including the right to confront witnesses. The right to confront witnesses is not satisfied by the appearance of a juvenile restricted to “two-way video procedure unless such procedure is necessary to further an important public policy and the reliability of the testimony is otherwise assured.” Circuit court’s generalized concerns about COVID-19 did not further an important public policy without witness-specific findings under Supreme Court of Missouri administrative orders.   
X.D.M. vs. Juvenile Officer   
(Overview Summary)   
Missouri Court of Appeals, Western District – WD84520


Strategy on Jury Instructions Was Sound   
A finding that decision of trial counsel was a strategically sound decision negates a theory that trial counsel’s assistance was ineffective. On a charge of accomplice liability, the defense was alibi, with which a Mere Presence instruction is inconsistent and undermines the defense. A Mere Presence instruction is not necessary to hold the State to proof on each element of the offense charged. The circuit court did not clearly err when it found that trial counsel’s decision to seek no such instruction was a sound strategy.   
CHRISTA E. MUELLER, Appellant vs. STATE OF MISSOURI, Respondent   
Missouri Court of Appeals, Southern District – SD37128

Escape Rule Applied to Probation   
The appeal of a criminal defendant who flees justice for any amount of time is subject to dismissal under the escape rule. That includes absconding from parole, causing an adverse effect on the criminal justice system, even when appellant re-engages with the parole officer. Appeal dismissed.   
Edward A. Terry, Appellant, vs. State of Missouri, Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District – ED110050