Case summaries for July 8 - July 14, 2022

Administrative | ADR | Civil | Construction | Post-Conviction | Workers' Compensation

Administrative

Recitation of Evidence Is Not a Finding of Fact  
In a claim for benefits from the Second Injury Fund, the claimant has the burden of proof, so no competent and substantial evidence is necessary to support a decision denying benefits. Appellant relies on evidence contrary to the decision, inviting the Court of Appeals to make its own credibility determinations in lieu of those already made by the Labor and Industrial Relations Commission, which the Court will not do. Statute bases an award in part on how many hours a full-time employee works for employer, so the Commission must determine that amount by making a finding of fact, but the Commission merely recited evidence relevant to that issue. “The factual findings are necessary so that we can ‘know what a decision means before the duty becomes ours to say whether it is right or wrong.’” Decision reversed and remanded for findings of fact on the undetermined issue.  
JUANITA KURBURSKY, Appellant/Respondent vs. INDEPENDENT IN-HOME SERVICES, LLC., Respondent/Cross-Appellant and TREASURER OF THE STATE OF MISSOURI-CUSTODIAN 2ND INJURY FUND, Respondent  
Missouri Court of Appeals, Southern District - SD37103 and SD37104

ADR

Arbitration Agreement’s Self-Help and Anti-Waiver Provisions Okay  
An earlier opinion on the same contract did not establish collateral estoppel because respondents did not show that the earlier opinion turned on the same issue. Statute provides that a motion to compel arbitration shall be granted unless the respondent denies the allegation that an arbitration agreement exists, which respondents failed to do in circuit court, leaving respondents with arguments on the agreement’s validity. Because the underlying retail sales agreement and arbitration agreement constituted a single contract, consideration for the sale was also consideration for arbitration. “[T]here does not have to be separate consideration for each promise when a collection of promises is given in exchange for a collection of promises.” The arbitration agreement’s self-help and anti-waiver provisions did not render the agreement so one-sided as to be unconscionable or the consideration illusory. Adequacy of consideration is for the parties to bargain and not for the courts to decide.  
Bridgecrest Acceptance Corporation, Appellant, vs. Kelly Donaldson and Robert Haulcy, Respondents. and Bridgecrest Acceptance Corporation, Appellant, vs. Christopher Jones, Respondent.  
(Overview Summary)  
Supreme Court of Missouri – SC99269 and SC99270 

Civil

Judgment Final Pending Re-Taxation of Costs  
Circuit court certified a partial judgment for appeal, but appellant did not timely file a notice of appeal. A pending motion to re-tax costs does not prevent a judgment from becoming final because re-taxation of costs merely corrects any error in the initial taxation of costs, which is an exercise of the circuit clerk’s ministerial duty that is separate from issuing final judgment. The Court of Appeals’ special order, allowing a late appeal from the order of re-taxation, does not allow an appeal from any other ruling. Therefore, all other rulings are dismissed from the appeal. The order of re-taxation accounted for the expense of deposing appellant, which appellant had protracted in part, and so did not constitute an abuse of discretion. 
Beth Owen, Appellant, v. The Washington University, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110097   

Construction

Statutes of Limitations Discussed
Lessor of construction equipment assigned its claim on a statutory payment bond to assignee. Assignee and assignor both filed an action to collect on the bond. Circuit court dismissed assignee, for untimely filing, and entered judgment for the assignor. But assignment divested assignor of all rights in the claim and made the assignee the real party in interest in an action on the bond, which was an action for breach of contract. That action is subject to the statute of limitations for actions to collect on a writing for payment of money, not the statute for penalties and forfeitures, even though the bond was required by statute. An authorized after-trial motion extended for 90 days the authority of the circuit court, which timely set aside its earlier judgment, so the circuit court had authority to issue the judgment now appealed. Remanded to vacate the judgment and proceed.  
FOUR STAR ENTERPRISES EQUIPMENT, INC., and RGH, LLC, Plaintiffs-Appellants/Respondents v. EMPLOYERS MUTUAL CASUALTY COMPANY, Defendant-Respondent/Cross-Appellant 
Missouri Court of Appeals, Southern District - SD36906 and SD36908 

Post-Conviction

Waiver of Jury Was Sound Strategy  
The record supported a finding that trial counsel’s advice to waive a jury trial was the product of long experience and constituted a sound strategy. The waiver complied with provisions of constitutions and rule. Because trial counsel made the circuit court aware of movant’s “mental and criminal history at the time of sentencing [,] a complete mental evaluation would not have provided significant additional information [,]” so movant could not show deficient performance or prejudice. Deciding not to call an expert witness, whose testimony on mental disease or defect would have been unhelpful, was “prudent [.]”  
Antonio C. Jackson vs. State of Missouri    
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84387 

Workers’ Compensation

No Sovereign Immunity for Political Subdivisions  
The General Assembly waived the State’s sovereign immunity to a retaliation claim when it created such a claim against employers and defined employers to include governmental entities.  
Travis Poke, Appellant, vs. Independence School District, Respondent.  
(Overview Summary)  
Supreme Court of Missouri - SC99384