11:53 AM

Case summaries for July 10 - July 16


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.

ADR | Appellate | Contract | Criminal | Post-Conviction | Workers' Compensation


Refusal to Defend in Arbitration Waives Defense in Circuit Court
Statute governing Mary Carter agreements gives an insurer the right to offer a defense before the agreement and the right to intervene in litigation after the agreement. The right to intervene in litigation means that the insurer “must accept the action pending ... at the time of intervention” and not that insurer can re-litigate matters already decided. And, insofar as the insured consented to arbitration, the insurer cannot claim that the award is unreasonable or procured by undue means. Otherwise, the insurer would have more rights than the insured, even after refusing a defense. Therefore, the circuit court could confirm an arbitration award on insured’s liability for damages and the amount consistent with insurer’s constitutional rights to due process, access to the courts, and trial by jury.
Collin Knight, a Minor, By and Through His Next Friend, Paul Knight vs. Nelson Knight and Violet Knight State Farm Fire and Casualty Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD82860


Must Raise Issues in Circuit Court
Statutes governing child support provide that failure to provide child’s higher education status on obligor parent’s request can result in termination of child support, but require child to send grades to obligor parent regardless of any request, so termination can occur without that request. Preserving a point on appeal generally requires including the point in a motion for new trial or other after-trial motion. Rule provides that preserving a challenge to jurisdiction does not require preserving that issue in a motion for new trial. On appeal, appellant challenged the circuit court’s termination of child support when no party prayed for that relief. But a circuit court has subject matter jurisdiction “over all cases and matters, civil and criminal [,]” and appellant failed to raise that issue to the circuit court in any way, so Court of Appeals will not convict the circuit court of error in failing to take an action never requested.
Steven C. Halper, Appellant, v. Karen L. Halper, Respondent/Cross-Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108064


Reliance on Another Is No Defense to Breach of Duty
An entity held an interest in an automotive dealership. A contract for sale of that entity generally required respondents to obtain all consents necessary to the transfer, but specifically required appellant to obtain the manufacturer’s consent by all commercially reasonable means, but the record supports a finding that appellant failed to use all commercially reasonable means to obtain that consent. The circuit court did not abuse its discretion in excluding evidence related to the manufacturer’s consent process and appellant’s understanding of that process because the excluded evidence did not show that appellants used all commercially reasonable means to obtain the car manufacturer’s consent. Appellant’s reliance on another person to meet appellant’s duty was not a defense—not even an affirmative defense. Remanded to determine amount of attorney fees award for respondents.
Richard C. Lehman and Michelle D. Koo, Respondents, v. Automotive Investments, LLC, Donald M. Davis, and Michael Shanahan, Jr., Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107864


No Dismissal Needed When Adverse Inference Argued from Failure to Preserve Evidence
The State’s failure to preserve potentially useful evidence violates due process only when that failure occurs in bad faith. The State did not preserve victim’s cell phone on which victim received messages from defendant. The parties submitted those facts to the jury by stipulation, and the defense argued an adverse inference from those facts, so the circuit court soundly exercised its discretion in denying defendant’s motion to dismiss.
Missouri Court of Appeals, Southern District - SD36171

Touch Through Clothes Discussed
Deviate sexual intercourse includes touching through clothing because it includes any conduct that “involves” specified body parts. Generalized testimony about delayed disclosure is admissible. In three interrogations, victim alleged the facts of a count only once, and that is enough for a finding of guilt on that count. Failure to object to evidence constitutes acquiescence to admission of the evidence. “[W]hen a defendant ‘stipulates to the admission of otherwise objectionable evidence, the defendant affirmatively waives any error in its admission, plain or otherwise.’”
STATE OF MISSOURI, Plaintiff-Respondent v. JAMES DARRIN WOOLARD, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD35945

No Prejudice from State’s Reference to Defense’s Right to Compel Attendance of Witnesses
Constitutions provide that a jury must presume that defendant is innocent unless the State proved otherwise. During voir dire, the State mentioned that compulsory process was available to the defense. But that statement was in the context of the State’s burden, which the parties reiterated several times, including in the jury instructions, which the jurors presumptively followed. Defendant did not show otherwise, so the Court of Appeals affirms defendant’s conviction.
Missouri Court of Appeals, Southern District - SD36345

Video Testimony of Child Witnesses Admissible as Substantive Evidence
Two statutes provide that certain hearsay statements of child witnesses are admissible. The first, addressing such statements generally, provides that they are admissible “as substantive evidence.” The second statute, addressing video and audio recordings specifically, provides how such recordings may be “admissible” without mentioning substantive evidence. But the differing language does not imply a bar on recordings as substantive evidence, because the first statute plainly states that it does not limit admissibility under any other laws, like the second statute. That plain language renders unnecessary any resort to the cannons of construction. Circuit court did not err in rejecting appellant’s proposed instruction barring the jury from considering a recording as substantive evidence.
STATE OF MISSOURI, Respondent vs. LARRY RAY JAMES, SR., Appellant
Missouri Court of Appeals, Southern District - SD36238


Plea Counsel Was Ineffective Under Bazell
Rule allows movant to withdraw a guilty plea when it resulted from plea counsel errors, but for which, movant would have chosen a trial. Pending a charge of class C felony stealing against movant, the Missouri Supreme Court’s ruling in Bazell held that stealing was a misdemeanor with a one-year statute of limitations, which time-barred the stealing charge against movant. But plea counsel, instead of seeking dismissal, advised movant to plead guilty to an amended charge. The amended charge was also time-barred, and did not relate back to the stealing charge, because the charges alleged different facts, applied different statutes, and constituted different levels of offense. Movant’s guilty plea was not knowing and voluntary, so movant may withdraw it.
Stanley Barber vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82714

Special Deference Due When Motion Court Was Sentencing Court
Rule governing relief from an illegal sentence includes a sentence that misinterprets or misapplies the law. Findings, on whether evidence or argument not considered in sentencing would have changed sentencing, are due special deference when the motion court was the sentencing court. The record supports an objectively reasonable conclusion that presenting more mitigation witnesses, and arguing for a sentence under the dual-jurisdiction statute, would have made no difference.
Gabriel Knight Dawson vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82441

Workers’ Compensation

All Characteristics Determine Permanent and Total Disability for Second Injury Fund
A physician’s medical report is admissible if complete, meaning that it includes all history, complaints, and examinations. A later physician may get those items from the report of an earlier physician, so the later physician’s report is admissible if the earlier physician’s report is attached. The record supported a finding that claimant sustained an injury from repetitive motion required on the job. For Second Injury Fund Liability, whether claimant is totally and permanently disabled depends not only on a later qualifying injury and pre-existing disability, but on other earlier injuries, disabilities, and “all other characteristics of the” claimant. The record supported a finding that claimant was permanently and totally disabled.
Treasurer of the State of Missouri as Custodian of the Second Injury Fund vs. Jonathan Parker
(Overview Summary)
Missouri Court of Appeals, Western District - WD83030