Case summaries for July 19-25, 2024

Administrative | Attorneys | Civil | Criminal | DWI | Employment security | Evidence | Insurance | Post-conviction

Administrative

Law and facts not shown
If an agency had no “rational, predictable basis for its decision, based on objective guidelines and data[,]” its decisions were “arbitrary, capricious, and unreasonable.” Agency regulation prohibited the use of more force than reasonable against a consumer. But the only record on that standard’s application to appellant was a supervisor’s “personal ad hoc standard[,]” rather than “a finding of what [appellant] actually did in each instance and how this violated an articulated legal standard or objective guideline[.]” The Missouri Court of Appeals reversed the agency decision and the affirming judgment, and it ordered that the appellant’s name be removed from the registry.
(Overview summary)
Dawnette Geen, Appellant, vs. Missouri Department of Mental Health, Respondent.
Missouri Court of Appeals-Eastern District - ED112026

Attorneys

Malpractice claim was timely
A lawyer drafted and recorded documents for a real estate transaction. An action for legal malpractice is subject to a five-year statute of limitations starting when the damage is reasonably “capable of ascertainment[.]” Ascertainment of damage was not reasonably possible for a lay person on service of process in a circuit court action challenging that transaction. No damages were ascertainable, or even existed, until entry of judgment against client in that action. The circuit court erred in holding otherwise and entering summary judgment against client for untimely filing of a malpractice action.
(Overview summary)
Danny L. Dannenhauer, and the Danny L. Dannenhauer Family Trust, By and Through Brenda D. Gunlock, Trustee, Appellants, vs. Philip P. Briscoe, Personal Representative of Estate of John W. Briscoe, Briscoe and Brannon, and Wasinger Parham, L.C., Respondents.
Missouri Court of Appeals-Eastern District - ED111979

Civil

Record of payment required to revive judgment
Statute presumed that a judgment was paid and satisfied after 10 years. That presumption was subject to rebuttal. Rebuttal evidence included payments on the judgment made and recorded. Recording meant written in the file for the action that resulted in the judgment. Any other record, including the record in another action, was irrelevant. A ruling on a motion related to enforcement of a judgment, like a motion to declare a judgment satisfied and released, constituted a special order after judgment that was subject to appeal.
(Overview summary)
Western Blue Print Co., LLC vs. Myrna Roberts, Et Al.
Missouri Court of Appeals-Western District - WD86781

Criminal

Prosecutorial vindictiveness not shown
Prosecutorial vindictiveness means punishing a defendant for exercising constitutional rights. After reversal and remand for a new trial, additional charges were the result of additional investigation that revealed additional criminal conduct, not the result of prosecutorial vindictiveness. A photograph of child victim hugging a deputy was admissible to show the victim’s candor during the deputy’s questioning, and no undue prejudice occurred, so the circuit court did not err in overruling defendant’s objection. A witness with “extensive experience dealing with child sex abuse material” and related training was qualified to testify as to the likely age of a photograph’s subject.
(Overview summary)
State of Missouri vs. Timothy Edward McWilliams
Missouri Court of Appeals-Western District - WD86349 consolidated with WD86350

No plain error in handwritten correction to instructions
“Even where a defendant fails to object to an instruction and affirmatively states it has no objection, unpreserved claims of instructional error may still be reviewed for plain error if manifest injustice would otherwise occur.” Jury instructions were prejudicially erroneous only if they reasonably likely misled or confused the jury or omitted an element of the offense charged. An instruction on burglary omitted the element of entering a structure unlawfully, so the circuit court wrote that word in by hand and explained its importance to the jury, as did the parties. Only speculation supported any claim of prejudice, which as insufficient on its face, so the Missouri Court of Appeals affirmed the conviction.
STATE OF MISSOURI, Plaintiff-Respondent v. KEVIN IRBY, Defendant-Appellant
Missouri Court of Appeals-Southern District - SD37818

Repeal of statute did not support expungement
Plaintiff filed an action for expungement of a conviction for felony assault on school property under a statute later repealed. Statutes generally provided that repeal of a statute after conviction had no effect on the conviction. Statutes specifically allowing expungement of criminal records excepted “[a]ny felony offense of assault [.]” The Court of Appeals reversed the judgment ordering expungement.
D.K.R., Respondent v. MISSOURI STATE HIGHWAY PATROL CRIMINAL JUSTICE INFORMATION SERVICES, Appellant and GREENE COUNTY CIRCUIT COURT, GREENE COUNTY PROSECUTING ATTORNEY, SPRINGFIELD SCHOOL POLICE DEPARTMENT, GREENE COUNTY SHERIFF'S DEPARTMENT, and CITY OF SPRINGFIELD MUNICIPAL POLICE DEPARTMENT, Respondents
Missouri Court of Appeals-Southern District - SD37763

DWI

No drug test needed
“There has never been a requirement in a driving while intoxicated case that a drug or alcohol evaluation be performed in order to find a defendant guilty of the charge.” The elements of driving while intoxicated included intoxication, meaning a substance in the body causing impairment. No drug test was necessary when driver’s own statements and behavior supported findings on each element.
STATE OF MISSOURI, Plaintiff-Respondent vs. ALISHA LOUISE BUELL, Defendant-Appellant
Missouri Court of Appeals-Southern District - SD38190

Employment security

Findings conclusive when supported
Defenses to eligibility for benefits included violation of an employer policy. Employer’s policies included zero tolerance for alcohol in a company vehicle. “The [Labor and Industrial Relations] Commission's findings of fact are conclusive if they are supported by competent and substantial evidence.” Competent and substantial evidence supported the commission’s finding that claimant did not drink beer in a company vehicle and that a co-worker did. That evidence consisted of the testimony of witnesses expressly found credible. Another defense was that claimant was working full time or otherwise unavailable for work. Ownership of a hunting guide business did not conclusively prove that such business constituted full-time employment or made the claimant unavailable for work, especially when the claimant conducted that business during the same time period as when working for employer full-time. A commission regulation gave the commission’s hearing officer discretion to expand the issues, but the employer did not ask, and the hearing officer had no such duty sua sponte.
(Overview summary)
Shay Mechanical, LLC vs. Daniel Espey and Division of Employment Security
Missouri Court of Appeals-Western District - WD86730

Evidence

No prejudice from cumulative hearsay when declarant was available
On appeal, appellant sought plain error review. Plain error review was discretionary and required both an error that is open and obvious and prejudice to a degree that was outcome-determinative. The error claimed was the circuit court’s failure to intervene sua sponte in the admission of hearsay testimony. But the testimony was cumulative, and the declarant was available for cross-examination, so the testimony was not outcome determinative.
STATE OF MISSOURI, Respondent v. LAURENTISS CORTEZ KENT, Appellant
Missouri Court of Appeals-Southern District - SD38291

Insurance

No set-aside for default judgment
Rule allowed circuit court to set aside a default judgment as void for lack of personal jurisdiction, or other failure of due process, both of which result from improper service of notice. Such issues did not include arguments on the merits of the underlying action. As required by statute, insurer designated the director of insurance to receive notice, and the director forwarded that notice to insurer’s last designated agent in the underlying action that resulted in the default judgment. In the motion to set aside the default judgment, insurer alleged further facts but did not support those allegations. “A motion to set aside a default judgment is not self-proving and must be verified or otherwise supported by affidavits or sworn testimony.” And an appellate court would not consider arguments not raised in circuit court.
(Overview summary)
Benjamin Metzger, by and Through His Friend and Natural Mother, Kathryn Metzger vs. United Services Automobile Association
Missouri Court of Appeals-Western District - WD86625

Post-conviction

Information from movant determined extent of investigation
Whether trial counsel’s choices on investigation are reasonable depended on the information that trial counsel got from movant. The circuit found that movant three times denied having any sexually transmitted disease, and that victim had none, so trial counsel’s investigation on that matter was complete. A witness testified generally as to how children react to sexual abuse, including reporting and not reporting. To show that such reactions do not prove that sexual abuse occurred, trial counsel carefully cross-examined the witness. The choice of not examining further or differently constituted a sound strategy.
(Overview summary)
Russell Donald Walker vs. State of Missouri
Missouri Court of Appeals-Western District - WD85967

Ineffective assistance not pleaded
On review of a judgment on a motion for post-conviction relief, an appellate court affirmed unless the appellate court had a definite and firm impression that the circuit court made a mistake. The circuit court denied the motion without an evidentiary hearing because the movant alleged that plea counsel had failed to investigate a witness. But the record refuted that charge because movant had already stated otherwise at the plea hearing under the circuit court’s clear and careful questioning. And the witness would have provided no viable defense. Plea counsel secured a plea bargain too favorable for movant to have rejected it, which negated any allegation of prejudice.
(Overview summary) 
Robert Lewis III, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED112200

Trial strategy included lesser offense instructions
In an action for post-conviction relief based on ineffective counsel, movant had to show prejudice resulting from sub-standard practice, negated on a showing of reasonable strategy. Reasonable trial strategy in a criminal action could include an all-or-nothing defense, like misidentification, with which instructions on a lesser included offense would be inconsistent. On such facts, the circuit court did not err in denying relief.
(Overview summary) 
Darian Cummings, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED111894

Trial strategy included extent of cross-examination
Trial counsel’s search for an alibi witness constituted a reasonable investigation. Whether a trial strategy was successful is not relevant to whether the strategy was reasonable. Trial counsel’s choice not to impeach victims’ testimony did “not warrant post-conviction relief unless the testimony offer[ed] a defense to the charged crimes” and victims’ inconsistent testimony did not relate to the charged crimes. Cross-examination of a co-defendant was a reasonable strategy, despite the risk of identifying movant, because it could have resulted in an exclusion of evidence identifying movant.
(Overview summary) 
Leland E. Hughes, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED111629