Case summaries for June 26-July 9

Appellate | Civil | Corporations and other entities | Criminal | Evidence | Family | Orders of protection | Post-conviction | Real estate

Appellate

Appeal was dismissed when record was incomplete 
The appellants had to file the record on appeal, system-generated or non-system-generated. For the latter, rules set forth the content of the record on appeal, including transcripts and documents. Documents required included pleadings and judgments. The appellant failed to comply with those requirements. The incomplete record would have required “speculation and guesswork” to resolve the appeal. After notice and an opportunity to correct, the Missouri Court of Appeals dismissed the appeal. 
(Overview summary) 
In Re the Matter of J.N.H. v. M.J.S.
Missouri Court of Appeals, Western District - WD88288

Appeal was dismissed for citing fictitious authorities 
The Rules of Appellate Procedure protected the impartiality of appellate courts and the certainty of appellate rulings, so failures to comply were grounds for dismissal. The appellant’s brief cited the record inaccurately in the statement of facts and argument, omitted the index of citations from the table of authorities, inaccurately cited authorities, and cited fictional authorities. The appellant’s "reliance on nonexistent case law and his misrepresentations regarding case holdings constitute ‘an abuse of the judicial system.’” The Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
State of Missouri v. Timothy H. Moore
Missouri Court of Appeals, Western District – WD88189

Appeal was dismissed for omitting the transcript 
The Rules of Appellate Procedure aid the resolution of appeals. The appellant had to file the record on appeal, including transcripts of evidentiary hearings. The appellant challenged the evidentiary basis for the judgment but did not file a transcript of the evidentiary hearing. After notice and opportunities to correct, the Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
A.J.W. v. Nathan Shain Ford
Missouri Court of Appeals, Western District – WD88175

Civil

Jurisdiction and authority distinguished 
The subject matter jurisdiction of circuit courts was plenary and included matters over which circuit courts had no authority to grant relief. “[T]he court would still have subject matter jurisdiction to dispose of the [action] by denying the requested relief.” The defendant sought to dissolve a Colorado common-law marriage. The circuit court found that no marriage existed. But then, instead of denying relief, the circuit court dismissed the action for lack of subject matter jurisdiction. The Missouri Court of Appeals reversed the judgment and remanded the action for a ruling on the merits. 
(Overview summary)
S.J.M., Respondent, v. T.J.F., Appellant.
Missouri Court of Appeals, Eastern District – ED113863

Corporations and other legal entities

Corporate veils pierced 
The sufficiency of the evidence was always subject to appellate review whether preserved or not. Courts could disregard the corporate form and hold another entity liable for any limited liability company’s transaction when that other entity had “complete dominion” over the company’s policy, business practices, and finances as to that transaction. The defendant owned and controlled multiple limited liability companies that respectively operated long-term care facilities, another limited liability company that managed the facilities’ finances, and a further limited liability company that owned a limited liability company that provided pharmacy services to the facilities. Those facts supported a conclusion that the corporate forms were mere alter egos of defendant, so the defendant was liable for breach of a contract to sell the pharmacy company. The parties contracted to sell the pharmacy company to the plaintiff. The defendant knew that the pharmacy company’s service to some of the facilities was soon to terminate, because those facilities had been sold to a third party, and the plaintiff did not. Those facts showed fraud and a breach of contract. The plaintiff’s notice of claim under the contract was sufficient because it set forth the claims known to the plaintiff at the time of the notice. The evidence also showed that the co-defendant had only a small minority ownership interest in, and supervision of finances for, the management company. Those facts did not support a conclusion that the corporate forms were mere alter egos of co-defendant. The Missouri Court of Appeals reversed and remanded the judgment for further proceedings on the co-defendant’s liability. 
(Overview summary)
Pharmacy Corporation of America, Respondent, v. Binyamin M. Klein, et al., Appellants, and Paresh Vipani, Individually and as Trustee of the Paresh Vipani Revocable Trust Dated August 29, 2021, Defendant.
Missouri Court of Appeals, Eastern District – ED113688

Criminal

Plain error declined on strategic choice 
The elements of plain error review included an essential right, and obvious error affecting such right, and a resulting manifest injustice. On such a facial showing, appellate courts could still decline review. The appellant cited the admission of his non-Mirandized statements into evidence. But the statements did not occur pursuant to any attempt to circumvent Miranda, the appellant stated “no objection” to them, and that choice was strategic. The Missouri Court of Appeals declined plain error review and affirmed the convictions. 
(Overview summary)
State of Missouri, Respondent, v. Rodney Collins, Appellant.
Missouri Court of Appeals, Eastern District – ED113650

Differing verdicts on one set of facts were not inconsistent 
To preserve error in inconsistent verdicts, the defendant had to raise the matter before the circuit court discharged the jury, and failure to do so left only plain error review. The elements of burglary in the second degree included the purpose of committing an underlying crime in the burgled building. The other crime charged was violation of a protective order, on which the jury acquitted the defendant, while finding the defendant guilty of second-degree burglary. Those verdicts were not inconsistent because they had different elements and completion of the underlying offense was not an element of second-degree burglary. The Missouri Court of Appeals declined plain error review and affirmed the judgment. 
STATE OF MISSOURI, Plaintiff-Respondent v. STEVEN A HILGEDICK, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD39008

Proof of possession discussed 
On a challenge to the sufficiency of the evidence, appellate courts ignored all evidence and inferences contrary to the verdict and determined whether the remaining evidence was enough to convince a reasonable fact-finder of the defendant’s guilt. The elements of possessing a controlled substance included the defendant’s control of the substance and knowledge of what the substance was. The State supported those elements with evidence that the defendant owned and was driving the truck in which the substance was, admitted using the substance, tried to hide the substance, denied the presence of the substance that was in plain sight, and made other false statements to law enforcement. And the presence of the substance within the defendant’s easy reach was enough to show actual possession. The Missouri Court of Appeals affirmed the conviction. 
STATE OF MISSOURI, Plaintiff-Respondent v. STACIE DEWAYNE BLACK, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD39067

Joinder of separate incidents was okay 
Grounds for joinder of multiple charges in a single action included similar character and a continuing plan. The State alleged two incidents of domestic violence 12 weeks apart at the same place against the same victim and victim’s mother, so the charges were sufficiently related for joinder. The evidence was sufficiently straightforward to avoid jury confusion, as the jury’s acquittal on one charge showed, so the circuit court did not abuse its discretion when it denied the defendant’s motion to sever. The incidents were so closely related that, if the later event were tried alone, evidence of the earlier incident would have been admissible at such a trial. The Missouri Court of Appeals affirmed the conviction. 
(Overview summary)
State of Missouri v. Cadilac Meshawn Derrick
Missouri Court of Appeals, Western District – WD87697

Warrant to search one person’s premises included another person’s purse 
Preserving errors on the admission of evidence required the appellants to appeal the overruling of their objections when the State offered the evidence, and appealing the denial of a motion in limine was insufficient, leaving review only for plain error. Plain error review was discretionary and unlikely “when the appellant’s actions or inactions caused or contributed to the error alleged.” The defendant did not seek a continuing objection to the challenged evidence and stated “no objection.” The Missouri Court of Appeals declined plain error review and affirmed the conviction. 
(Overview summary)
State of Missouri v. Julie Catherine Mahler
Missouri Court of Appeals, Western District – WD88165

Bias not shown
Grounds for a change of judge included bias, meaning partiality from an extra-judicial source. At sentencing, defendant blamed defense counsel’s practice for defendant’s flight from Missouri, and the circuit judge commented on defense counsel’s practice. That comment did not show partiality and defendant did not show any extra-judicial source of favor. Denying defendant’s motion to recuse the circuit judge did not constitute an abuse of discretion, especially when another judge ordered the denial. The Court of Appeals remanded the judgment for correction nunc pro tunc and otherwise affirmed the convictions.
STATE OF MISSOURI, Respondent v. ROBERT WILLIAM SHIELDS, Appellant
Missouri Court of Appeals, Southern District - SD38971

Evidence

Delayed disclosure testimony 
Appellate review was usually for reversible error. Expert testimony was admissible only on a foundation that could include the witness’s experience. The State’s expert provided evidence of the witness’s experience with hundreds of children disclosing sexual contact so admission of the testimony was not error. And the testimony was cumulative, which was never prejudicial. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
State of Missouri, Respondent, v. Terrance Cadwell, Appellant.
Missouri Court of Appeals, Eastern District – ED113547

Legal relevance discussed 
Legal relevance meant that evidence’s probative value outweighed its prejudice, meaning “‘unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness.’” The elements of statutory sodomy included a purpose of arousing or gratifying sexual desire, making relevant the defendant’s motivation. Motivation was subject to proof through circumstantial evidence. The State’s evidence included testimony that the defendant was aroused on other occasions when the victim was present in the witness’s residence. The circuit court did not err in overruling the defendant’s objection to the evidence. And overwhelming evidence supported the finding of guilt, negating prejudice. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
State of Missouri, Respondent, v. Lawrence Kloeppel, Appellant.
Missouri Court of Appeals, Eastern District – ED113539

Family

Purging of contempt mooted appeal 
Judgments of civil contempt enforced judicial orders by coercing compliance, so compliance with such orders mooted judgments of contempt. The circuit court’s decree of dissolution ordered the obligor appellant to pay certain sums, the obligor failed to do so, the obligee sought and received a judgment of contempt, the circuit court ordered confinement of obligor stayed pending compliance, and the obligor complied. Neither failure to comply with another order, which was not subject to the motion for contempt, nor post-trial motions filed after purgation altered that result. The stigma of a contempt judgment was less than a finding of juvenile or criminal guilt and was insufficient to support an exception for the public interest. The Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
Christina Dougherty, Respondent, v. Richard A. Mueller, Appellant.
Missouri Court of Appeals, Eastern District – ED113962

No appeal until all property divided 
The Missouri Court of Appeals had jurisdiction over final judgments, which in the case of actions for dissolution of marriage, included property division — classifying and awarding all property of the parties. The appellant appealed a judgment that identified some properties but did not divide them. That judgment was not final, so circuit court still had authority over the matter, and the Court of Appeals dismissed the appeal. 
(Overview summary)
Allison Renae Bomar, Respondent, v. Anthony Scott Bomar, Appellant.
Missouri Court of Appeals, Eastern District – ED113616

Dissolution decree was not final without division of business assets 
In any appeal, even when unchallenged, appellate courts always examined their jurisdiction. Jurisdiction over a final judgment included the judgment’s resolution of all issues. Issues in any action for dissolution of marriage always included classification and division of property. Property statements of both parties included business assets that the circuit court failed to address. The Missouri Court of Appeals dismissed the action, restoring the circuit court’s authority. 
(Overview summary)
Ryan Sandvoss, Appellant, v. Sarah Sandvoss, Respondent.
Missouri Court of Appeals, Eastern District – ED113512

Orders of protection

Harassment was not shown 
Judgments for full orders of protection were subject to appeal even after expiration. Full orders of protection could issue for harassment, which could consist of communications that caused “substantial emotional distress in a reasonable person.” The defendant’s communications with the victim did not rise to that level though they were “juvenile [,]” “annoying and boorish [.]” The Missouri Court of Appeals reversed and vacated the judgment. 
(Overview summary)
M.N.B., Respondent, v. A.J.R., Appellant.
Missouri Court of Appeals, Eastern District – ED113699

Appeal dismissed 
Appeals were subject to dismissal when moot subject to two exceptions. Orders of protection were moot when they expired. But expired orders of protection were still subject appeal generally under to a statute applying the public interest exception. And the appellant’s order was subject to appeal because the expiration occurred after the appeal was submitted. But review remained discretionary. The appellant committed “innumerable” and “flagran[t]” violations of the briefing rules, including misrepresentations of “what transpired at trial.” The Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
G.M., Respondent. v. T.M.G., Appellant.
Missouri Court of Appeals, Eastern District – ED113428

Distance from victim shown 
Circumstantial evidence could establish a fact beyond reasonable doubt if logical and not conjectural. The elements of class A misdemeanor violating a full order of protection included violating any provision of such an order. The order required the defendant to stay a specified distance from the victim. The State showed a violation of that provision with testimony of a witness who measured the distance from the defendant to the victim’s residence by eyesight, paces, and Google Maps. The Missouri Court of Appeals affirmed the conviction. 
(Overview summary)
State of Missouri v. Joey Everett Jonas
Missouri Court of Appeals, Western District – WD88080

Post-conviction

No relitigating appeal 
Post-conviction relief did not address matters reviewed for plain error in underlying criminal convictions if the matter did not constitute error or if no prejudice occurred. The appeal of the movant’s criminal convictions under plain error review addressed matters that did not constitute error, so no motion could charge trial counsel with ineffective assistance as to those matters. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Melvin Scherrer, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District – ED113649

Support was sufficient for findings on abandonment 
For a conviction appealed, an initial motion filed prematurely was deemed filed on the date that mandate issued on the conviction, so the movant’s initial motion was timely. The appointed counsel’s late filing of an amended motion raised a presumption of abandonment, which generally required the circuit court to conduct an evidentiary hearing to determine which motion to adjudicate. But no hearing was necessary when “the conclusion of abandonment is inescapable.” The amended motion showed on its face that post-conviction counsel had used the wrong revision of the governing rule, and miscalculated the time for filing, so no hearing on abandonment was necessary. The elements of a claim for ineffective assistance of counsel included the counsel’s deficient performance and resulting prejudice. Prejudice meant a reasonable probability that the outcome of trial would be different. Such allegations generally required the circuit court to conduct an evidentiary hearing to determine whether the allegations were true. But no hearing was necessary when the record had already refuted such allegations. The amended motion charged the trial counsel with failing to call an expert witness on psychological shock to explain away the movant’s inconsistent statements. But the movant did not allege that such a witness would have been available, nor show that such a witness would have helped, and other evidence of guilt was overwhelming. The amended motion charged the trial counsel with failing to seek a competency evaluation. But a competency evaluation required reasonable cause, and the movant did not allege facts constituting reasonable cause, nor show that the circuit court would have granted such a motion, and the record showed that the movant could understand the proceedings and consult rationally with counsel. The movant’s rejection of a plea agreement did not show that the movant was incompetent. The circuit court denied relief and the Supreme Court of Missouri affirmed the judgment. 
(Overview summary)
Glenda M. Young, Appellant, v. State of Missouri, Respondent.
Supreme Court of Missouri – SC101253

Real estate

Restrictive covenants waived 
The elements of challenging a ruling as against the weight of the evidence included identifying all evidence, and resolving all credibility determinations of contrary evidence, in favor of the ruling. The plaintiff appellants failed to do so for some of their points relied on, so the Missouri Court of Appeals dismissed those points. The intentions of grantors governed restrictive covenants. In an action for declaratory judgment, the circuit court found that the grantor of the parties’ land intended the restrictive covenants to limit construction to one-family residences only and only one per lot. Newspaper advertisements to the contrary were not credible because the advertiser was not the grantor. Widespread non-compliance with non-severable covenants constituted a waiver of all non-severable covenants, and the circuit court found many instances of the plaintiffs’ non-compliance with the restrictions on construction and materials. The circuit court found that the grantor intended those covenants to be non-severable, so the circuit court concluded that the covenants were unenforceable. On appeal, the appellants challenged that conclusion, but not that underlying finding, which mooted whether the plaintiffs had standing to bring the action to begin with. The Missouri Court of Appeals affirmed the judgment. 
DIXIE SLEIGHT, et al., Plaintiffs-Appellants v. BK&M, LLC, et al., Defendants-Respondents 
Missouri Court of Appeals, Southern District – SD38733

Homestead exemption discussed 
Appeal was possible from special orders after final judgment, which included rulings on enforcement of, or attack on, final judgments. Judgments were final when ruling as to all parties on all claims. “An effort to ‘enforce . . . one legal right’ is ‘a single claim, regardless of the fact that it seeks multiple remedies.’” Therefore, on a pleading seeking payment under alternative mutually exclusive remedies, granting relief on one theory implicitly denied relief on all others. The judgment included pre-judgment interest, and claims for attorney fees had to be a separate action, so the judgment was final. The special order after judgment did not have to be denominated a judgment to perfect an appeal from it. Appellate courts affirmed judgments when circuit courts reached the right result without regard to the reasoning that circuit courts used. On execution of a judgment, a specified amount of value in a homestead was exempt from execution, so “the sheriff could not proceed with his levy until he . . . ascertained, in the mode directed by the act . . . the value of the premises, and that they are beyond the limit protected against executions.” That value remained undetermined when the special order issued, so the Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
All Acres Roofing, LLC v. Brandon Beau Ballard
Missouri Court of Appeals, Western District - WD88100