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Case summaries for July 23 - July 29, 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.

Appellate | Commercial | Criminal | Employment | Evidence | Post-Conviction | Real Estate | Utilities


Ruling Not Cited
The circuit court had no authority to amend an earlier judgment in an earlier action by a later judgment in a later action, and did not do so, with language in the later judgment to “dispose of all issues remaining in the case.” To charge the circuit court with an error of law preserves nothing for review unless appellant refers to a specific ruling, cites law showing error, and shows why error requires reversal. Appellant failed to preserve a challenge to the language of the judgment by failing to raise it in a motion to vacate or amend. Statutes provide an award of attorney fees in actions necessary to enforce the Sunshine Law, but appellant did not show that his was such an action.
Aaron M. Malin vs. Cole County Prosecuting Attorney
(Overview Summary)
Missouri Court of Appeals, Western District - WD83774


Inadequate Notice Bars Deficiency Judgment
A deficiency judgment requires strict compliance with statutory procedure, including notice. Notice of a post-sale deficiency, “unclaimed and ultimately returned to” creditor, gave creditor actual notice that further attempts at delivery were necessary. “[A]dditional steps to inform Defendants of the Post-Sale Notice in ordinary course, such as depositing the Post-Sale Notice in regular, first-class mail,” would have sufficed. But creditor did not take such steps so circuit court did not err in denying creditor a deficiency judgment.  
The Central Trust Bank, Appellant, vs. Barbara Branch and Alexis Branch, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109020


Prior Sexual Knowledge Excluded
Rape Shield statute excludes specific instances of prior sexual conduct, and appellant showed no exception as provided by the statute, so circuit court did not plainly err in excluding victim’s disclosures of prior sexual events. Confrontation Clause may require admission of such evidence, but appellant did not preserve that argument.
State of Missouri, Respondent, vs. Benjamin Stiff, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109155

Continuance for Mental Impairments Denied
Citing medical issues in circuit court to support a continuance does not preserve mental issues in the Court of Appeals. The law presumes defendant to be competent to stand trial, and defendant had the burden to show otherwise, but did not; further, examinations sponsored by both the State and the defense, the circuit court’s own observations, and the transcript support a conclusion that defendant was competent. Appellant’s refusal to meet with counsel did not require a continuance after months to prepare a defense. Cross-examination on appellant’s “efforts—or lack thereof—to seek help for [victim] were probative of whether he deliberated before killing her” and any error was harmless because such evidence was cumulative.
State of Missouri vs. Marcus Simms
(Overview Summary)
Missouri Court of Appeals, Western District - WD83422

Orders Require Evidence
To disqualify an entire prosecuting attorney’s office requires a conclusion that actual conflict of interest exists, which requires evidence, which does not include the mere assertions of counsel. The circuit court’s order, disqualifying the entire prosecuting attorney’s office, had no support in any evidence. Court of Appeals issues its permanent writ to forbid enforcement of the order.
Missouri Court of Appeals, Southern District - SD37113


Consideration for Arbitration Agreement and Delegation Clause Was Illusory
Federal statutes treat arbitration as a matter of contract, so courts will hold parties to their agreement on arbitration, including who decides what matters are subject to arbitration. The law presumes that matters are subject to arbitration, except that presumes that the courts decide what matters are subject to arbitration. A delegation provision must have its own sufficient consideration, which may include mutual promises to delegate arbitrability. But the parties’ considerations were not mutual in that employer’s “unilateral authority to modify the delegation clause without limit or notice to [employee] rendered [employer]’s promises illusory, and ‘[s]uch illusory promises provide no valid consideration.’” And the arbitration agreement as a whole “suffers from the same infirmity as the delegation provision.” The circuit court did not err in denying employer’s motion to compel arbitration in employee’s action for employment discrimination.
Telissah Johnson vs. Menard, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD84138


Forfeiture by Wrongdoing Explained
The Confrontation Clause excludes any testimonial hearsay unless the defendant had an opportunity to cross-examine the unavailable declarant, unless unavailability is the result of defendant’s wrongdoing, in which case statutes codifying the doctrine of forfeiture by wrongdoing make the evidence admissible. The circuit court did not apply that analysis correctly, but the error was not prejudicial, because of other overwhelming evidence of guilt. Evidence of uncharged bad acts is admissible to counter defendant’s allegations of innocence and victim’s self-harm. 
State of Missouri, Respondent, vs. Christopher B. Buechting, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108511


Record Shows Voluntary Plea
Movant alleged that he relied on plea counsel’s misrepresentations of possible sentences on a guilty plea, but the record refuted that allegation. “[T]here is extensive evidence and discussion in the series of four guilty pleas showing the Movant was well aware of his prior sentences and the range of potential consequences of pleading guilty” so no evidentiary hearing was necessary to determine whether movant’s guilty plea was voluntary.
Kurtis D. Newlon, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109077

Real Estate

Notice Insufficient for Unlawful Detainer
Circuit court erred in concluding that the parties extended their lease, because the parties signed no new lease or extension, and the lease provided expiration and hold-over created a month-to-month tenancy. Month-to-month tenancy is subject to termination at the end of the rental month, and after one month’s written notice, by statute. Statutory compliance is strict in an unlawful detainer action, and landlords did not carry their burden of proof: phone calls are not writings, and writings did not give a month’s notice. Circuit court correctly ordered payment of rents due through trial, but erred in awarding immediate possession, late fees on rejected rent payments, and contractual attorney fees. Remanded for a judgment accordingly with a determination on costs.
CHRISTINE O'CONNELL and GREG O'CONNELL, Plaintiffs-Respondents v. LEECHIA RAQUEL DEERING, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36872

Issues Limited In Unlawful Detainer
For statute governing unlawful detainer actions, respondents’ pleadings and evidence at trial showed that respondents were holdover tenants, not wrongful possessors without force.  Habitability is beyond the scope of unlawful detainer, and respondents failed to preserve an issue on habitability, because they failed to make an offer of proof on that matter. Rent and possession may include an award of attorney fees, but unlawful detainer does not.
Melissa K. Espinosa, Trustee of the Melissa K. Espinosa Revocable Trust vs. Eric Baker and Veronica Baker
(Overview Summary)
Missouri Court of Appeals, Western District - WD83911

Judgment Not Final
Landlord’s action for unlawful detainer addressed possession of real property, as did landlord’s action for rent and possession, but resolving one did not resolve the other, because the actions have differing elements. Tenant’s claim related to wrongful eviction also remained pending. Therefore, the Court of Appeals had no final judgment to review and dismisses the appeal.
Jack Murphy vs. Neil Steiner, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83885 and WD83903


All Relevant Factors Considered
In a general rate action, the Public Service Commission must set rates that are just and reasonable, and consider all relevant factors. That includes the capital structure of a public utility and the public utility’s parent entity, as to which the contract by which parent and subsidiary relate cannot bind the Commission, which can even base its order on a hypothetical capital structure. The Commission concluded that plant retirement was relevant, but indeterminable, and chose to employ an accounting authority order to track the plant retirement’s financial consequences. That conclusion had support in the record and the courts will uphold any rates, however made, if the rates are just and reasonable.
In the Matter of the Empire District Electric Company's Request for Authority to File Tariffs Increasing Rates for Electric Service Provided to Customers in its Missouri Service Area, Office of Public Counsel, Midwest Energy Consumers Group vs. Public Service Commission
(Overview Summary)
Missouri Court of Appeals, Western District - WD84090 and WD84117