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Case summaries for July 14 - July 20, 2023


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 | Civil | Criminal | Elections | Family | Juvenile | Personal Injury | Post-Conviction | Real Estate | Workers' Compensation


Forum for seeking litigation expenses clarified 
Statutes allow an award of litigation expenses for a non-State party prevailing against a State agency. Statutes require the non-State party to initiate such an action by filing in the forum that finally disposed of all issues as to all parties, which does not include an appellate court’s remand with directions, but did include the circuit court’s judgment on remand. The action was filed too late, so any award of expenses was unauthorized. 
State of Missouri ex rel. Department of Natural Resources, Petitioner, vs. Fowler Land Company, Inc., and Margaret Leist Revocable Trust, Sandy Runnels and Linda Henderson, Trustees, Respondents.
(Overview Summary)
Supreme Court of Missouri - SC99740 


Service no good, judgment reversed   
A judgment is void and subject to collateral attack, when rendered without personal jurisdiction, which includes service according to statute and rule. In an action for a writ of mandamus, rule requires the circuit clerk to deliver a preliminary writ mandamus and the petition to the sheriff or special process server for service on the respondent, before ruling on the merits of a permanent writ. The record reflects no such delivery, so the circuit court ruled on the petition without personal jurisdiction over the respondent. The Court of Appeals cannot rule on the merits, either. Judgment, granting a permanent writ in mandamus, reversed and remanded for dismissal.    
State of Missouri ex rel. Willie James Nutall, Respondent, vs. Missouri Department of Corrections, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED111143

Appeal forfeits post-judgment interest    
Statutes provide post-judgment interest on awards of money damages because defendant has the use of plaintiff’s money during any delay in payment of the judgment. But the delay in payment of the judgment is caused by plaintiff when plaintiff unsuccessfully appeals the award. “[D]efendants could not have satisfied the judgment against them so long as [p]laintiff’s appeal was pending.” Defendant’s extension of the appeal process by seeking transfer does not change that result, because transfer vacates the Court of Appeals’ opinion, and constitutes an original appeal. Circuit court applied a statutory cap to plaintiff’s punitive damages award, plaintiff appealed to the Court of Appeals and prevailed, but defendants sought transfer to the Missouri Supreme Court, which affirmed the cap. On remand, the circuit court’s judgment excluded post-judgment interest. That ruling constituted a special order enforcing the judgment, which constitutes a separate proceeding from the underlying case, and so becomes final and subject to appeal like a judgment. That ruling was consistent with the mandate and did not modify the judgment. Forfeiture of post-judgment interest occurred only at the conclusion of the appellate process, so no party could have raised it on appeal, so the law of the case does not apply.    
All Star Awards & AD Specialties, INC. vs. Halo Branded Solutions   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85491


Notation on photo was an adoptive admission   
A detective’s notations on a surveillance photo were hearsay and subject to exclusion until defendant testified that the notations accurately reflected his own observation. Adopting the notation as defendant’s own testimony made the notation into an adoptive admission. An unpreserved objection is subject to review for plain error only, which the Court of Appeals declines.    
State of Missouri, Respondent, v. Dexter Wiggley, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110950

No plain error review on evidentiary and instructional rulings   
Appellant failed to show any manifest injustice or miscarriage of justice in the amount of evidence that the circuit court allowed defendant to present on whether victim fabricated her allegations, and a disagreement with victim’s mother; and instructions on lesser included offenses. The Court of Appeals declines plain error review.    
State of Missouri, Respondent, vs. Leron Robinson, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110585


Attorney General mandated to move initiatives along 
Statutes governing the initiative process provide that, when the Secretary of State receives a draft initiative petition, the State Auditor drafts a fiscal note and summary, the latter of which the Attorney General reviews for “legal form and content” so that the Secretary of State can certify the petition for signatures. The Attorney General’s review does not include the fiscal note — substantive content of sources, analysis, and conclusions — because the Attorney General has no authority to make such a review.  Substantive review for fairness and sufficiency occurs in circuit court. The duty to approve a fiscal note summary of required legal form and content is ministerial and subject to enforcement by writ of mandamus. 
State of Missouri ex rel. Dr. Anna Fitz-James, Respondent, vs. Andrew Bailey, In His Official Capacity, Appellant, and Scott Fitzpatrick, et al., Respondent. 
(Overview Summary)
Supreme Court of Missouri - SC100132


Challenges to settlement rejected   
At trial in an action for dissolution of marriage, the parties testified that they had settled all matters including maintenance, adjusted for increases in obligor’s income, in accordance with a memorandum of understanding, signed by all parties and their attorneys. Those attorneys were present when the circuit court incorporated into its judgment a document similar to the memorandum, so that judgment did not issue without due process. Even if the judgment were void, on a motion to set aside the judgment, appellant’s acceptance of that judgment’s benefits estops appellant’s arguments. Also, five years is not a reasonable time for filing such a motion. The omission of a definition for “income” did not deprive the circuit court of standards on which to enforce the judgment.    
Hemant Godara, Appellant, vs. Guari Singh, Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110648

Proof of service needed   
In an action to terminate parental rights, rule requires that notice of trial date include a certificate of service with specified information, absent from the notice sent to appellant. A judgment procured pursuant to such notice is subject to the rule governing setting aside an irregular judgment. Judgment reversed and remanded for further proceedings.   
Missouri Court of Appeals, Southern District - SD37933 

Certification of service inadequate   
Rule allows the setting aside of a judgment if irregular, meaning by means contrary to procedure. In an action to terminate parental rights, due process and a specific rule require that a notice of trial date include how and where notice was delivered, without which service is a matter of mere speculation. Judgment vacated and remanded for further proceedings.   
IN THE INTEREST OF W.J.J.W., A minor child under seventeen years of age, GREENE COUNTY JUVENILE OFFICER, Petitioner-Respondent v. M.P.W., Respondent-Appellant   
Missouri Court of Appeals, Southern District - SD37928


Counsel not ineffective for seeking no mental exam   
A certification hearing requires only the essentials of due process, which can be less than a criminal proceeding, or even an administrative hearing. It is unlikely that trail counsel for a juvenile will charge themselves with ineffective assistance, so it is likely that the issue will be unpreserved, so the Court of Appeals treats the matter as preserved rather than as plain error. “[L]ow IQ and mental illness alone are insufficient to render a criminal defendant incompetent to stand trial [,]” and those are the only grounds on which appellant argues that a mental examination would have barred certification for trial as an adult. Even if incompetence were shown, the result would be only a stay of the certification. Under either possible standard—a meaningful hearing, or substandard performance with resulting prejudice—the result is the same: trial counsel was not ineffective for deciding not to seek a mental examination.    
In the Interest of: C.R.B. vs. Juvenile Officer   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85433

Personal Injury

Expert qualifications on causation discussed   
Statute, governing admissibility of expert testimony, requires both expert qualifications and reliable data. Defendant’s biomechanical engineer expert studied, and so could opine on, how maternal forces generally affect a child during birth based on adapted computer simulations. But those simulations did not address the specific events shown, so that expert’s testimony on the cause of a specific child’s injury was inadmissible. The expert did not study medical practice in delivery and so that expert’s testimony on the standards of practice applicable to defendant physician were inadmissible. The expert’s testimony, that a child must have been especially prone to an injury because the child suffered the injury, was inadmissible. That evidence alone supported the judgment of no liability, so prejudice resulted, requiring reversal. Because the jury found no liability, it never reached damages, so damages is not subject to appeal. Reversed and remanded for new trial.    
Jessica Huett, Appellant, v. Kent Branson, M.D., et al., Respondents.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110991

Official immunity applies when mandate has exceptions 
On facts constituting child abuse or neglect, statute mandated the filing of a referral for specifically described care, and a policy manual set a deadline for that filing. In an action for wrongful death, the petition alleged that child’s death resulted from defendant State worker’s failure to timely make the filing. But the manual also required no such filing on specifically described additional facts. Those exceptions to the mandate made the filing duty discretionary, for which official immunity protects the defendant from suit. Because the petition alleged facts on which defendant had official immunity, the petition “irrefutably” showed the affirmative defense of official immunity, which negates the claim of wrongful death. Circuit court’s judgment, granting defendant’s motion to dismiss for failure to state a claim, affirmed. 
Christina Forester, Appellant, vs. Crystal May, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC99928 


New trial ordered for failure to call firearms expert   
At trial, the State adduced expert testimony that movant could not have accidentally shot victim twice. At a hearing on the motion, movant adduced expert testimony that movant could have accidentally shot victim twice.  Such expert testimony was reasonably likely to change the outcome at trial because it was relevant to the inferences drawn from uncontested facts and lesser included offenses submitted. When “[t]he defense strategy at trial rested entirely on the argument that [movant] did not intend to shoot [v]ictim [,]” trial counsel’s failure to investigate and produce such a firearms expert was not reasonable trial strategy. Judgment denying relief reversed and remanded for new trial.    
Erick E. Beckett vs. State of Missouri   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85222

Real Estate

Waiver of property tax calculation disputed   
Lease of space in premises required tenant to pay real property tax, calculated as either a proportion of the premises or as a separately assessed parcel, which the lease the landlord was to use best efforts in obtaining. For not billing according to a separate assessment, tenant brought an action in contract against landlord. The landlord had obtained a separate assessment. But landlord established, without genuine dispute, that the assessment only supported a construction loan application and did not affect property taxes. Therefore, the law entitled landlord to a judgment that the separate assessment did not require billing as a separate parcel, and that landlord did not breach the lease by billing proportionally. Tenant always paid as a proportion of the premises and never demanded that landlord seek a separate assessment. But the relevant invoices were not in the record, so neither party established whether tenant did so intentionally, and the law entitled neither party to a judgment on whether tenant implicitly waived payment as a separately assessed parcel.    
Old Navy, LLC, Appellant, vs. South Lakeview Plaza I, LLC, Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED111214

Workers' Compensation

Second injury irrelevant  
Statutes provide that the Second Injury Fund is liable for compensation when an already-injured worker sustains a later injury that, combined with the earlier injury, renders the worker permanently and totally disabled. Claimant incurred an earlier injury that, the Labor and Industrial Relations Commission found, alone permanently and totally disabled claimant. Missouri constitutional and statutory provisions allow a challenge to that finding for lack of competent and substantial evidence upon the whole record. But the Commission’s express credibility determinations, in favor of evidence supporting the finding, thwart any such challenge. Contrary evidence is irrelevant on appeal. Claimant returned to work, but that does not negate the finding, because “[c]laimant’s good fortune to have returned to highly accommodated employment [,]” is not the test of disability; the test is competition in the open market. On returning to work, claimant incurred a later injury, but that later injury is irrelevant because the earlier injury had already rendered claimant permanently and totally disabled, so the later injury “added to [c]laimant’s misery but did not make him more permanently and totally disabled or combine with his [earlier injury] to result in permanent total disability.” Therefore, the Second Injury Fund has no liability.  
Missouri Court of Appeals, Southern District - SD37293 and SD37294