13:45 PM

Case summaries for July 17 - July 23


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 | Attorneys | Criminal | DWI | Employment | Post-ConvictionProbate | Real Estate


Quasi-Public Governmental Bodies Discussed Under Sunshine Law
Sunshine Law statutes provide access to records of quasi-public governmental bodies, which includes “any association that directly accepts the appropriation of money from a public governmental body [;]” but respondent is not an association for purposes of that statute. That statute uses “association” to mean an unincorporated group of persons, and respondent is a not-for-profit corporation. A not-for-profit corporation is a quasi-public governmental body if contracting with a public governmental body is its primary purpose. Primary purpose is a question of fact, on which nothing limits the evidence to articles of incorporation, and a chance for discovery on that issue was due before the circuit court granted summary judgment for respondent.
Aaron Malin vs. Missouri Association of Community Task Forces, D/B/A ACT Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83322


Summary Judgment Affirmed in Multi-Layered Malpractice Action
In an earlier action against a third party, plaintiff testified that the third party was the sole cause of damage to their business. Plaintiff also sued to enforce a covenant not to compete against a former employee through a first law firm, sued that first law firm for malpractice through a second law firm, sued that second law firm for malpractice through defendant third law firm, and sued that defendant third law firm for malpractice in the underlying action. In that underlying action, plaintiffs alleged damage to their business caused by the former employee. Naming the former employee was not necessary for the circuit court to grant relief on defendant’s motion for summary judgment challenging plaintiff’s proof of causation. Proof of causation required expert testimony, and plaintiff offered only speculative lay testimony, while plaintiff’s testimony in the earlier action negated causation in the underlying action. Representation in the action against the second law firm did not constitute continuous representation, to toll the statute of limitations for malpractice alleged in an unrelated bankruptcy action, which started running when damage was reasonably ascertainable under Kansas law. Plaintiff’s dissatisfaction with a lawyer’s services also did not raise a genuine dispute as to whether those services damaged plaintiffs in the amount of fees paid. On a claim of fraudulent misrepresentation, the elements include a statement that was false when made, and plaintiff alleged that defendant falsely said that defendant would take the case to trial, but defendant negated that element with evidence that defendant prepared for trial. No error can occur in severing, for trial, claims that never went to trial.
Day Advertising, Inc., et al vs. Paul Hasty Jr., et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83379


Jury May Disbelieve Victim and Convict Defendant
On charges of sodomy in the first degree and attempted rape in the first degree, the defendant’s intent, and victim’s ability to consent were at issue, and whether defendant took a substantial step toward completing the attempted offense. Each gave equivocal testimony as to whether victim was too intoxicated to give consent to sexual contact. Statutes provide that to be “incapable of consent” does not require unconsciousness and includes being “unable to make a reasonable judgment [.]” Therefore, victim’s testimony, that she feigned sleep but could have consented to sexual contact, did not require acquittal. The jury was entitled to believe the testimony of victim and defendant that supported a finding of incapability and to infer defendant’s intent. The evidence supported a finding that defendant took a substantial step toward completing the offense.
State of Missouri, Respondent, vs. Carlton James Dickerson, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107414

Claim of Right Explained
On a charge of stealing, the elements include taking property to purposely deprive the owner of that property, which the State showed with evidence that a witness told defendant that the property belonged to someone else. The owners’ testimony was unnecessary. Claim of right is a special negative defense, meaning that the defendant has the burden of raising that defense at trial. The elements of that defense include the defendant’s honest subjective belief that they can take the property and objectively reasonable evidence supporting that belief. The latter was absent from defendant’s case, so defendant failed to raise the claim of right defense.
State of Missouri, Respondent, vs. Tammy D. Peeler, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108114

On Charge of Illegal Possession of Deer, No Accomplice Liability Shown
A juvenile is subject to probation and supervision of a juvenile officer if the circuit court finds the juvenile guilty of violating a criminal statute. No criminal statute appears in any citation in the petition. The juvenile officer did not show that anyone violated the regulation governing deadline to recovery, tagging, and reporting of deer, so the juvenile could not be guilty under accomplice liability.
In the Interest of: T.G. vs. Juvenile Office
(Overview Summary)

Missouri Court of Appeals, Western District - WD83608

Possession Shown by Circumstantial Evidence 
Officer did not see defendant possessing contraband in portable toilet but found contraband there after defendant left. Evidence showing that defendant had control of that contraband and knew its nature included: The portable toilet was on a construction site where defendant had no business; defendant did not immediately answer officer’s knock, nor comply with officer’s order to come out, though defendant was not using the portable toilet; the contraband was dry though it was in a wet container in the toilet water. 
STATE OF MISSOURI, Respondent vs. WILLIAM W. WELCH, JR., Appellant
Missouri Court of Appeals, Southern District - SD36144


Reasonable Grounds Shown
The elements of revocation for refusal of a test include reasonable grounds to believe that the driver was driving while intoxicated. Reasonable grounds are not limited to first-hand observation of driver driving or crashing; and may include visible indicia of intoxication, performance of field sobriety tests, and statements of witnesses. “[T]he Director [of Revenue] does not need to prove the person was driving or was actually intoxicated while doing so.” The time of a wreck is not indispensable to reasonable grounds.
Timothy Gallagher, Appellant, vs. Missouri Department of Revenue, Respondent
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108485


Defendant’s Judgment Affirmed on Sexual Harassment Claim
In an action under the Missouri Human Rights Act against an employer for sexual harassment by a non-supervisory co-worker, the elements include showing that the harassment affected a condition of employment. An offer to transfer employee to another station did not constitute an adverse effect on her employment. When the theory is hostile work environment, the employee must show an environment where harassment is sufficiently pervasive to be objectively hostile, which employee’s evidence of two incidents involving two non-supervisory co-workers did not show. The elements of claim for sexual harassment by hostile work environment include showing that the employer knew, should have known, or had constructive knowledge of the harassment; but employee’s evidence on employer’s prior knowledge of the non-supervisory co-worker conduct consisted of speculation or hearsay; and after-acquired knowledge does not satisfy that element. Employer’s same-day and next-day investigations and terminations of the offending non-supervisory co-workers constituted prompt remedial action that "shields [the] employer from liability" for harassment by a non-supervisory co-worker.
M.W., an Infant, By and Through Her Natural Guardian and Next Friend, K.W., Appellant, v. Six Flags St. Louis, LLC, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107943


No Exception When Uninformed of Deadlines at Sentencing
Timely filing of a motion is indispensable to circuit court’s authority over a motion, with a few exceptions, one of which is when the circuit court misinformed movant of the filing deadlines during its sentencing colloquy. During its sentencing colloquy, circuit court did not say anything about the deadlines for filing a motion. Those facts do not constitute an exception to the timely filing requirement, so circuit court had no authority to reach the merits of the motion, so Court of Appeals reverses and remands for dismissal.
RICHARD D. MCNABB, II, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent

Missouri Court of Appeals, Southern District - SD36139


Can’t Determine Validity of Trust During Registration
Statutes provide that registration of a trust occurs on the filing of a statement with the circuit court, which does not constitute a pleading, does not give rise to a defense, and is not subject to summary judgment. The circuit court has no authority to determine the validity of, or other matters related to, a trust without a separate action under other statutes. Replying to respondent’s motion to dismiss did not invite error.
In re the Matter of: Annaliese Brightwell Trust; Raymond L. Brightwell vs. Beate Boesl

(Overview Summary)

Missouri Court of Appeals, Western District - WD83296

Real Estate

Claims Not Raised Merged into Dismissal, Settlement’s Reservation Notwithstanding
In an earlier action for partition of premises, the parties settled the partition and dismissed with prejudice the earlier action. That earlier action constituted a bar to appellant’s later action for damages related to the premises because all claims related to the premises merged into the earlier action. The circuit court did not err in dismissing the later action under res judicata, which bars all claims that could have been brought in the earlier action, and once dismissed with prejudice. “[B]y voluntarily filing their joint dismissal with prejudice, the parties unequivocally demonstrated their intent to bury all partition-related claims” notwithstanding their express intent to “preserve and reserve all other claims and defenses not pled and filed in the” partition action.
Tracy Boehlein, Appellant, vs. Tim Crawford, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108281