Case summaries for July 9 - July 15, 2021
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.
Judgment Final Though Issues Remain
In a dispute over ownership of property, pleadings raised a claim and a counterclaim, but other events during litigation required further determinations. Judgment disposed of all issues raised in the pleadings, and operated in the present, so the judgment was final despite the other determinations yet to be made.
West Quincy Properties, LLC, Respondent, v. Straightedge, Inc., et al., Appellants.
Missouri Court of Appeals, Eastern District - ED109208
Discovery Enforcement Okay
Circuit court granted leave to file a third amended petition, but plaintiff filed a different third amended petition that the circuit court struck, so the second amended petition was the operative pleading. Appointment of special master for discovery did not constitute an abuse of discretion. Rule requires special master to take an oath before beginning special master’s proceedings, but appellant waived that requirement by failure to object until appeal. Rule requires special master to file a report but special master’s filing of proposed orders, and circuit court’s procedure in adopting them, did not violate due process. Circuit court did not abuse its discretion in ordering sanctions, including prohibiting cross-examination and barring evidence supporting a defense, for discovery violations. Attorney’s fact testimony, to identify documents for showing discovery violations, was admissible because the rule “generally prohibit[ing] an attorney from simultaneously serving as an advocate and witness at a trial ... governs the ethical conduct of attorneys and is not a rule of evidence.” Non-compete clause was not unreasonable in scope as to time or place: two years within 50 miles of appellant’s former territory. But the circuit court’s injunction, extending the non-compete covenant lacked support in the record. The circuit court’s award of liquidated damages as provided by the parties’ employment contract lacked support in evidence of actual harm.
Carmed 45, LLC, Respondent, v. Wesley Adam Huff, Appellant.
Missouri Court of Appeals, Eastern District - ED108990
Error Irrelevant to Jurisdiction
Circuit court has plenary jurisdiction to issue a judgment; and neither procedural errors like incorrect venue, nor substantive errors like fraud, divest that jurisdiction. A consent judgment is not “a recital of an agreement and is not appealable.”
Joanne Puetz-Anderson, et al., Respondents, vs. Gerald B. Puetz, et al., Appellants.
Missouri Court of Appeals, Eastern District - ED108772
Severance Deal Negates Claim
Claimant had the burden of proving his claim, so no evidence was necessary to find against him. Appellant’s acceptance of a severance package and leaving a job voluntarily contradicts an allegation that employer discharged appellant. Demotion from management and a 15.7% reduction in annual salary to $140,000 did not constitute good cause to leave voluntarily.
STEVEN MICHAEL FIRMAND, Claimant-Appellant v. UNIVERSITY OF MISSOURI, Employer-Respondent and DIVISION OF EMPLOYMENT SECURITY, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD37019
Termination of Parental Rights and Adoption Affirmed
Abandonment means intentional permanent relinquishment of custody. Neglect means to forego the care, protection, support, and contact. Neither is established or negated solely by incarceration, but appellant’s disinterest in appellant’s child established both, and supported the circuit court’s conclusion that the child’s best interests lay with appellant’s niece and niece’s wife. Niece’s wife had lawful custody of child with niece because, “[i]n Missouri, stepparents are deemed to have lawful custody within the definition of the statute without a court order granting or transferring custody to them specifically [;]” respondents therefore had lawful custody for the time required.
In the Matter of: M.N.V.
Missouri Court of Appeals, Eastern District - ED108888
Custom Equipment Defined
When the meaning of an insurance policy was at issue, a genuine dispute as to the parties’ intention did not defeat a motion for summary judgment, because the contract’s meaning is a matter of law. Auto insurance policy covered custom equipment differently from original manufacturer equipment. The latter coverage applies to insured’s spray foam trailer. The spray foam trailer’s maker built the spray foam trailer from a trailer and spray foam equipment, insured bought the spray foam trailer as a package, and insured made no modifications to customize it. Schedule of premiums also shows that the parties intended to insure the spray foam trailer as a unit and not insure the trailer separately from the spray foam equipment.
JOSEPH G. FARIES, Plaintiff-Appellant vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, a/k/a USAA, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD36884
Domiciliary Foreign Personal Representative Need Not Open Estate
Statutes provide that, when no estate administration is pending, a domiciliary foreign personal representative has the same powers as a local representative, without opening an estate in Missouri, on filing authenticated copies of appointment and a bond in the probate division. For that reason, the circuit court erred in applying the statute of limitations on filing claims in circuit court in an action to quiet title and establish a constructive trust. On constructive trust claim, appellant did not show that circuit court’s ruling against claimant was against the weight of the evidence, because appellant did not follow the necessary analysis. Appellate court dismisses a point that cites a theory not raised to circuit court.
TERRY BRACKNEY, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RENATE MACK, Appellant vs. ROBERT WALKER and NANCY WALKER, CRYSTAL HOUSE and NATHANIEL HOUSE, DIRECTOR, DEPARTMENT OF REVENUE, STATE OF MISSOURI, and CENTURY BANK OF THE OZARKS, Respondents
Missouri Court of Appeals, Southern District - SD36808