Case summaries for July 21 - July 27, 2023

Appellate | Civil | Criminal | DWI | Employment Security | Evidence | Family | Post-Conviction | Real Estate | Real Property | Workers' Compensation

Appellate

Briefing deficiencies require dismissal 
Appellant’s brief must give notice to the other parties and to the appellate court as to appellant’s theory. Appellant’s argumentative statement of facts without references to the record, “indecipherable” point relied on, and one-sentence argument require speculation to rule on the appeal. Dismissed.  
Ken Auman vs. Janiece Richard 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85461

Civil

Long-arm allegation not connected to claim 
A motion to dismiss can have support in affidavits and other matters outside the pleadings, which do not convert the motion into a motion for summary judgment, because the motion does not reach the merits of a claim. The circuit court may disbelieve the content of an affidavit or a deposition. “Long Arm” statute describes the events in Missouri that will support a circuit court’s jurisdiction over a party including conducting business, making a contract, and committing tortious conduct. Plaintiff alleged only the conduct of business in Missouri, but did not allege any connection between those facts and plaintiff’s injury. Plaintiff did not allege that any contract was made, or any tortious conduct committed, in Missouri. Those allegations did not support personal jurisdiction over defendant, and the circuit court did not err in dismissing the case without prejudice. Dismissal without prejudice became final and subject to appeal when plaintiff elected to plead no further.  
Julius Copeland, Appellant, v. WRBM, LLC, d/b/a Western Rivers Boat Management, Inc., Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111141

Criminal

Lifetime registration not required 
Federal statutes require Missouri to maintain a sex offender registry and to register certain persons. Any such person must remain registered for life under Missouri statute. Court of Appeals reverses judgment for applicant and enters judgment for the State denying removal from the registry.  
William H. Drewel vs. Missouri State Highway Patrol and Cole County Sheriff John P. Wheeler 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85246 and WD85269

No plain error review for sentence authorized by statute 
An appellate court may engage in plain error review when obvious error results in manifest injustice. Manifest injustice does not occur when circuit court imposes a sentence as authorized by statute. Court of Appeals declines plain error review.  
STATE OF MISSOURI, Plaintiff-Respondent v. STEPHEN GREGORY PERRY, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37678

DWI

15-minute observation explained 
On driver’s appeal de novo from the Director of Revenue’s discipline of driver’s license, for driving while intoxicated, the Director must show probable cause to stop the driver and blood alcohol above .08 percent. The latter depends in part on testing procedure, which includes 15 minutes under examination for any contamination of driver’s mouth, and observation to prevent such contamination. Observation means proximity sufficient to “reasonably ensure, using the senses of sight, hearing, or smell, that a test subject does not smoke, vomit, or have any oral intake” and expressly does not require direct observation.  
Payton Chiann Comer vs. Director of Revenue, State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85493

Employment Security

Compliance with appellate rules necessary to preserve appeal 
Rules of appellate practice protect against appellate courts becoming advocates. Appellant’s points relied on, and argument, identify the ruling challenged but do not state how the law and facts interact to require reversal. Appellant’s argument, challenging a ruling that his administrative appeal was untimely, does not cite the standard of review or authority. Those deficiencies remain after the chance to correct them, and the Court of Appeals must not speculate on a supporting theory, so the Court of Appeals dismisses the appeal.  
Daniel Starcher vs. Division of Employment Security 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85952, WD85953, WD85954, WD85955, and WD85956

Evidence

No plain error review as to hearing device 
Defendant’s evidence of a witness’s motive to lie is logically relevant but appellant’s evidence was speculative and remote enough to diminish legal relevance, so circuit court did not abuse its discretion in excluding that evidence. Defendant did not make a facial showing for plain error review in the absence of an auxiliary hearing device, because defendant did not show that he needed one, so the Court of Appeals declines plain error review.  
STATE OF MISSOURI, Plaintiff-Respondent v. LOUIS ANTHONY MEALER, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37623

Confrontation clause exclusion and exception discussed 
Constitutional provisions protect a criminal defendant’s right to confront adverse witnesses as to any testimonial evidence. Testimonial evidence is “given while there was no emergency in progress and was made for the purpose of establishing or proving past events potentially relevant to later criminal prosecution.” That does not describe lab reports, and the experts preparing those reports were subject to cross-examination, so no Confrontation Clause issue arose and the circuit court did not err in allowing the jury to review them during deliberation. Victim’s statements to police about domestic violence constituted testimonial evidence, but the domestic violence was intended to prevent such statements, and so supported admission under forfeiture by wrong-doing.   
State of Missouri, Respondent, vs. Kevin Fields, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110076

Family

Record supports parenting plan 
Circuit court may “adopt a parenting plan of its own in lieu of a parenting plan proposed by one of the parties.” Circuit court’s finding, that the circuit court’s own parenting plan was in the child’s best interest, had support in appellant’s evidence. Endorsing appellant’s evidence did not require adopting appellant’s conclusions. A “weekly rotating parenting plan” “maximized the time Child spent with each parent without increasing the burden of transporting Child between homes.” Because the circuit court’s plan accomplished the goals advocated in appellant’s evidence, the circuit court’s finding was not against the weight of the evidence.  
In Re The Matter Of: Y.R.H. by and through her next friend J.N.H. vs. M.J.S. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85773

Post-Conviction

Cross-examinations okay 
On a claim of ineffective assistance of counsel, movant must show prejudice resulting from sub-standard practice, which means a choice that is not soundly strategic. Movant challenged trial counsel’s cross-examination to discredit a State witness without an additional impeachment by inconsistent statement to the police. Circuit court’s findings, and denial of a motion to amend, on counsel’s performance are not separate rulings for separate points on appeal. Sound strategy supported trial counsel cross-examination, and reference to the police report would have let in the remainder of that statement, which would have been damaging. Cross-examination of the State’s tire track expert would only have enhanced the expert’s credibility.  
Timothy S. Kelley vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85606

Omission of findings not preserved 
Rules require judgment to include findings of fact and require a motion to amend judgment filed in circuit court to preserve error on omission of findings of fact. Circuit failed to make the required finding, but movant failed to file a motion to amend, so movant failed to preserve error. Dismissed. 
John Kirby vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85425

No claim on plea bargaining 
On a claim of ineffective assistance of counsel, allegations related to plea bargaining have constitutional significance only as to relaying an offer or advising defendant, and movant alleged neither. Movant alleged that trial counsel did not consult with movant on which counts to plead guilty to, and make an offer to the State, prompting an acceptable counter-offer. Also, the record supports the circuit court’s findings that trial counsel consulted extensively on pleading guilty. The rest of movant’s theory is mere speculation that cannot show prejudice.  
MARK D. O'BRIEN, Appellant v. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals, Southern District - SD37779

No duty to offer instruction 
In a criminal action, at the sentencing phase, the standard of proof is a preponderance of the evidence. But no law requires an instruction on that matter, and there is no approved instruction for that point, so trial counsel had no duty to offer an instruction not in MAI. Also, movant did not show any resulting jury confusion or any reasonable probability of a different outcome, so movant did not show prejudice. The circuit court did not err in denying relief. 
DAVID JAMES MILCENDEAU, Appellant v. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD37479

Real Estate

Title insurer with actual notice must defend 
Title insurance policy’s covered risks included enforcement of ordinances as recorded by notice in the “Public Records.” Public records constitute constructive notice when filed with the Recorder of Deeds, but that does not negate actual notice, according to statute governing recording of documents. Title insurer had actual knowledge of a circuit court action to enforce a county ordinance on seller’s property when insurer issued a title insurance policy. “A party who has received actual notice is not prejudiced by and cannot complain of the failure to receive statutory notice [.]”  
Sanford Sachtleben and Luciann Hruza, Appellants, vs. Alliant National Title Insurance Co., Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110612

Real Property

Timely filing distinguished from standing  
While dissolution of marriage was pending and the disputed farm was still property of the entirety, appellant received a deed from one spouse but not the other, so that deed conveyed nothing. Judgment on decedent’s probated will granted the farm to respondent, in accordance with the will’s plain language, and notwithstanding a clerical error in the judgment. Irregularities in deeds from personal representatives to heirs do not alter that result. Notice of the action was adequate and the judgment is not subject to collateral attack. Title to the farm gave respondent standing to bring an action to quiet title in the farm. The action to quiet title was timely filed because the time starts with notice of a wrong, which did not occur until appellant asserted ownership of the farm. On appellant’s alternative claim for adverse possession, the circuit court’s finding against appellant and for respondent is presumptively based on findings consistent with the judgment, which are presumptively based on credibility determinations. Each such presumptive ruling is subject to deference in appellate court. Circuit court’s findings of fact satisfied appellant’s general request. Circuit court was not required to enter a default against other defendants, and circuit court’s interlocutory judgment for appellant was subject to change, which occurred in the final judgment. “[E]ven uncontested evidence never proves a claim until the fact‑finder says it does.”  
VENA SUE PENTECOST, Plaintiff-Respondent v. MICHAEL WEBSTER, Defendant-Appellant and RICHARD L. PENTECOST, et al., Defendants 
Missouri Court of Appeals, Southern District - SD37447

Workers’ Compensation

Workers’ compensation is the exclusive remedy for providers 
Statutes and regulations commit all disputes over medical bills related to workers’ compensation to the Labor and Industrial Relations Commission exclusively. That includes not only disputes between a worker and an employer, but also between a health care provider and an employer, or between a health care provider and an employer’s insurer. Providers may collect an amount “fair and reasonable and are not greater than the usual and customary fee” “through a statutorily mandated regulation constituting “a lengthy and, again, comprehensive set of procedures ‘available to employers, insurance carriers and health care providers to resolve disputes concerning charges for health care service [,]’ remarkable for its detail and comprehensiveness.” Those provisions pre-empt all related common law theories of recovery, release “any person” from further liability, and are consistent with the Primary Jurisdiction Doctrine.  
Orthopedic Ambulatory Surgery Center of Chesterfield, LLC, and Chesterfield Spine Center, LLC, Appellants, vs. Sharpe Holdings, Inc., et al., Respondents.
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110859