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Case summaries for July 16 - 22, 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.

Civil | Construction | Criminal | Employment | Family | HealthJuvenile | Legislative | Personal InjuryPost-Conviction | Probate | Workers' Compensation


No Responsive Pleading, No Default in Associate Division
Statutes govern practice in associate division specifically and to the exclusion of rules governing civil procedure generally. Statute deems denied any fact alleged by a petition in associate division, only requires a responsive pleading for “[a]ffirmative defenses, counterclaims and cross claims [,]” and waives those theories as the only consequence of failure to file a responsive pleading. “Therefore, a defendant cannot be in default in [associate division] for failure to file a responsive pleading[; and a] default judgment is only possible [in associate division] if the defending party fails to appear in court on the return date or subsequent date to which the case had been continued.” Circuit court erred, in finding appellants in default before the date set for their appearance in associate division, and in denying appellant’s motion to set aside the default.
Zick, Voss, Politte & Richardson, Respondent, vs. Jeannette M. Puetz, David M. Puetz, and Gerald B. Puetz, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109152

Registration of Foreign Judgment Denied
In an earlier action, appellants registered a 2009 Arizona judgment in Missouri, but failed to renew it within ten years as provided by statute. In later actions, appellants sought registration of, and execution on, a “2014 Arizona judgment [,]” which was not a judgment; it was merely a 2014 Arizona certificate of renewal attached to the 2009 Arizona judgment. The 2009 Arizona judgment was time-barred from enforcement, so the circuit courts did not err in dismissing the actions and quashing execution. 
Missouri Court of Appeals, Southern District - SD36851 and SD36977

Judgment Subject to Partial Set-Aside Despite Death of a Party 
Rule governing a motion to set aside allows a circuit court to set aside a judgment in part only. Property division is not subject to modification, but any judgment can be set aside for fraud, in whole or in part. Appellant’s motion to set aside for fraud addressed the judgment in appellant’s dissolution of marriage as to the property division only. That motion was part of the dissolution action, not subsequent litigation, so neither collateral estoppel nor res judicata preclude the claim of fraud. Appellant asked the circuit court to set aside the property division only and so preserved that claim on appeal. Respondent died while the motion was pending, but statutes provide that an action for fraud survives a party’s death, so abatement does not end the action. The action addresses an asset already sold, but that does not bar effective relief in the form of a monetary award, nor otherwise moot the motion. 
Jeanne H. Olofson, Appellant, vs. Scott W. Olofson, in his Capacity as Personal Representative of the Estate of Tom W. Olofson, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98043


Prompt Payment Instructions Okay
Failure to challenge a judgment, supported by multiple theories, on all such theories, requires affirmance of the judgment. Appellant’s conclusory pleading of respondent’s breach was insufficient to raise an affirmative defense, so respondent need not plead an avoidance of that affirmative defense, and instructions submitting the affirmative defense and avoidance did not prejudice appellant. Appellant showed no prejudice from the exclusion of its expert’s testimony that “possessed little if any probative value,” and was cumulative. Appellant’s admission that respondent satisfied all respondent’s contractual duties, supports submittal of instructions on damages and prejudgment interest on statutory and contractual grounds. Objections to instructions must be specific to preserve error. “An instructional error is only grounds for reversal when the instruction misdirected, misled, or confused the jury and resulted in prejudice.” Statutes on prompt payment start prejudgment interest from the delivery of an invoice, which respondent performed by letter, and appellant showed no prejudice from the instructions’ use of the term “demand” instead of “invoice.” Respondents offered evidence of appellant’s bad faith and appellant showed no prejudice from instructions’ definition of good faith. Respondent’s evidence supported damages under the modified total cost method. Approved instructions’ language on mitigation of damages was unnecessary for damages calculated by the modified total cost method. Damages determined by the modified total cost method can qualify as liquidated, despite the need for a calculation, and can be subject to prejudgment interest. Defects in a motion for directed verdict carry over to a motion for judgment notwithstanding the verdict. Remanded to determine attorney fee award on appeal.
Penzel Construction Company, Inc., Respondent, vs. Jackson R-2 School District, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108821


Date of Events Not Essential
On a sex offense charge, in closing argument, the State argued that evidence of the date of the facts alleged is not necessary for a guilty verdict. That argument is correct: the State may prove that the offense occurred any date between that set by the statute of limitations and the date the charging instrument was filed. For that reason, trial counsel was not ineffective for deciding not to object, and appellate counsel has no duty to raise an unpreserved and meritless point on appeal. Absent “rare and exceptional circumstances that would justify review of an issue that could have been raised on direct appeal [,]” such issue is not subject to post-conviction relief.
ERNEST ENGLES, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36925

Purposes of Gratification or Arousal Shown
The elements of class A felony first-degree child molestation and class A misdemeanor second-degree child molestation included sexual contact, which included the purpose to arouse or gratify sexual desire. That purpose is subject to inference when anyone other than a child makes a contact that is otherwise “inherently sexual.” Multiple incidents, denial, and flight also show guilt.
State of Missouri, Respondent, vs. Samuel I. Holmes, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108949


Firefighter Pension Denied
Statute and ordinance allow benefits for disability based on mental conditions that result from physical conditions, and the firefighters pension board did not conclude otherwise. The board expressly discounted the expert evidence that was based on claimant’s allegation of post-traumatic stress disorder because the agency found appellant not credible. Competent and substantial evidence supported a finding that claimant was malingering. Judicial review of the board’s decision includes an examination of the whole record with deference to the board’s determinations on the evidence’s weight and the witness’s credibility.
Michael Taylor, Appellant, vs. The Board of Trustees of the Firefighters' Retirement Plan of St. Louis, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109142


Contempt Order Reversed
On a motion to modify child support, a missing transcript resulted in an earlier general remand, which re-opened all issues. On remand, circuit court entered a modification order based on stale information, contrary to local rule. That fact did not support a direct appeal, and did support a motion to set aside the modification order, and appellant did not show any abuse of discretion in granting the motion to set aside the modification order. The circuit court also set aside a contempt order unrelated to the modification order, so the Court of Appeals reverses the order setting aside the contempt order and reinstates the contempt order.
James W. Shanks, Jr., Appellant, vs. Meagehn M. Shanks, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109185 and ED109186


Medicaid Expansion Okay
Constitution addresses any initiative that makes an appropriation, or mandates an appropriation in a specific amount, but the Medicaid expansion initiative mandates only an expenditure. “[W]hether and how much funding to authorize ... in a given year ... is left to the discretion of the General Assembly in its appropriation process.” The General Assembly’s appropriation for Medicaid funds services to all beneficiaries with no exception for those eligible under Medicaid expansion. Circuit court did not err in denying intervention to movants, whose interests and arguments were already represented by plaintiffs, and the Supreme Court affirms that ruling. Otherwise, the Supreme Court reverses the circuit court’s judgment and remands to determine injunctive relief. 
Stephanie Doyle, et al., Appellants, Luke Barber and Christine Chaney, Appellants, vs. Jennifer Tidball, et al., Respondents.
(Overview Summary)
Supreme Court of Missouri - SC99185


Remote Appearance Case Transferred
Juvenile adjudication judgments are subject to the same review as criminal judgments. On a theory of accomplice liability, the State did not have to prove that appellant shot victim, only that appellant engaged in criminal conduct with the shooter that could reasonably lead to the shooting. The evidence was sufficient. But limiting appellant’s presence to an appearance by video conferencing, without a record and findings relevant to any standard for limiting appellant’s appearance, violated appellant’s Confrontation Clause rights. That violation affected all evidence, so the violation was not harmless. Transferred.
In the Interest of: J.A.T. vs. Jackson County Juvenile Office
(Overview Summary)
Missouri Court of Appeals, Western District - WD83968


Multi-Subject Bill Struck
Plaintiffs challenged a bill as unconstitutional. When the State filed a motion for summary judgment, it did not undertake the burden of proving the bill’s constitutionality, but it did undertake the burden of establishing facts, beyond genuine dispute, that entitle it to a favorable judgment. The Constitution restricts any bill’s subject matter to its title, so when a bill’s title states that it relates to elections, but the bill addresses city annexation of fire district territory, the bill is unconstitutional. Whether an annexation might require an election, and other subjects of the bill might have involved an election, does not bring all of the bill's provisions within the subject of elections. Judicial severance cannot save the rest of the bill, so the Supreme Court vacates State’s summary judgment, and remands for entry of judgment for the plaintiffs. 
City of De Soto and James Acres, Appellants, vs. Michael L. Parson, Governor of the State of Missouri, et al., Respondents.
(Overview Summary)
Supreme Court of Missouri - SC98891

Personal Injury

Damage Limitations Statute Okay
Constitution protects the right to trial by jury as it existed in 1820, which ceased to include an action for medical negligence, once the General Assembly replaced the common law action with a statutory action. The statutes may affect the parameters of such an action, without violating any right to jury trial, including a cap on non-economic damages. When the circuit court grants a party’s requested relief, like a curative instruction on the burden of proof, there is no adverse ruling for appellate review. Circuit court did not abuse its discretion in admitting a recording that had been mislabeled but had been in the parties’ hands long enough for the parties to learn of the error. An issue not raised in a motion for new trial, or in a motion to amend the judgment, is unpreserved for appeal. Competent evidence supported a finding that plaintiff’s injury was within the statutory definition of catastrophic for determining which cap to apply to the jury’s damages award. That cap’s formula protects damage “awards” from inflation, so it applies in trials after its effective date, even though the trial relates to events before the statute’s effective date. 
Maria del Carmen Ordinola Velazquez, Appellant-Respondent, vs. University Physician Associates, et al., Respondents-Appellants.
(Overview Summary)
Supreme Court of Missouri - SC98977


Record on Abandonment Required
“When appointed counsel files an amended motion beyond the [post-conviction relief] rule’s deadline, it is presumed that counsel abandoned [m]ovant and the [circuit] court is obligated to conduct an independent inquiry to make factual determinations regarding the abandonment issue.” That inquiry must include a ruling on abandonment and a supporting record. Remanded to make a record and a ruling.
Mortez Cleaves, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109120


Litigation Expenses Limited
Statutes governing the administration of a trust commit to the circuit court’s discretion an award of litigation expenses paid from the trust so that award is subject to review for an abuse of discretion. “[M]erely incurring a certain amount of attorney’s fees and expenses does not entitle a trust beneficiary to an award of that amount.” Circuit court correctly applied the common fund rule, by distinguishing the expenses that benefitted the trust from expenses that benefitted appellant alone, like “attorney’s fees incurred solely for the preparation and prosecution of her motion for reimbursement of attorney’s fees [.]” Denying appellant’s expenses for travel to a hearing at which appellant did not testify was not an abuse of discretion.
Kelsey Alexander vs. UMB Bank, N.A. As Trustee, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83907

Missing Transcript Requires New Hearing
Proceedings on appellant’s disability and competence may result in restrictions on appellant’s liberties. And when the record shows that circuit court’s rulings depended on testimony, a transcript of the testimony is necessary to conduct appellate review, which is appellant’s duty to provide. So, when no transcript is available from circuit court due to computer malfunction, the appellate court must remand the action to circuit court for another hearing.
In the Matter of: Lily Ann Crocker
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109179

Workers’ Compensation

Unsupported Findings Result in Reversal
Findings of the Labor and Industrial Relations Commission as to the nature and extent of claimant’s disability had support in medical expert testimony and are binding in appellate court. But findings of fact are unsupported by competent and substantial evidence when they do not accurately reflect an expert opinion, contradict unchallenged evidence without a finding on credibility, and are inconsistent with ultimate facts found.  Denial of an award for permanent total disability based on hearing loss and pre-existing disability reversed.
Jimmy Fields, Appellant, vs. Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109251

Appellate Brief Inadequate
Appellant recited, but did not follow, the mandatory format for challenging an award based on insufficient competent evidence, citing the wrong evidence, omitting citations to the record, and ignoring credibility determinations. Dismissed. 
Missouri Court of Appeals, Southern District - SD36956