13:14 PM

Case summaries for July 24 - July 30


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 | Construction | Criminal | Education | Employment | Family | Health | Insurance | Post-ConvictionReal Property | Utilities | Workers' Compensation


Transcript Required
Rule required appellant to file, among other things, a transcript showing the facts surrounding the challenged rulings. Points relied on cite generally to bodies of law instead of setting out the legal reasons for reversal. Argument sets forth only conclusory statements instead of applying law to fact. Appeal dismissed.
Equity Trust Company vs. Keith Givhan, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83240 and WD83246

Appellant’s Briefing Deficiencies Require Dismissal
Appellant’s brief’s findings of fact do not explain the basis for circuit court’s judgment; points relied on are multifarious, and do not show legal reasons for reversal; argument does not show how appellant preserved her points relied on, and do not support the points relied on by applying the law to the facts; and neither points relied on nor argument challenge basis for the ruling appealed. The last deficiency is fatal, and would be even if the others did not exist. Appeal dismissed.
Joy Guglielmino vs. Jackson County, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82855


Parties Were Not Necessary
On claims assigned from building owner, general contractor sued some, but not all subcontractors. Subcontractors sought and obtained joinder of masonry contractor under rule on mandatory joinder of necessary parties. A party necessary to a contract action is either a party to the contract, or someone with an interest at stake. A party necessary to a tort action is one charged as a joint tortfeasor, and the general contractor neither did nor had to charge the masonry subcontractor. Possible action for contribution from masonry subcontractor, by movant subcontractors, cannot result in a judgment inconsistent with general contractor’s action. Equitable considerations are irrelevant when determining necessary parties. Third party practice remains an option. Circuit court abused its discretion in joining the masonry subcontractor as a necessary party, so Supreme Court makes permanent its preliminary writ of mandamus.
State of Missouri ex rel. Woodco, Inc., Relator, vs. The Honorable Jennifer Phillips, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98227


Statutory Amendment Does Not Apply Retroactively
When defendant committed the conduct charged, statutes barred probation or parole for that conduct. After a statutory amendment lifted that bar, circuit court found that defendant committed that conduct and sentenced defendant without probation or parole, citing the unamended statutes. Seeking a declaration of eligibility for parole, defendant filed a declaratory judgment action and prevailed, from which the State appealed. Pending the appeal, the State commuted defendant’s sentence to house arrest, but that did not moot whether defendant was eligible for parole. Defendant was not eligible for parole because the unamended statutes applied when defendant committed the conduct charged, the statutory amendment does not apply retroactively, and the general savings statute does not apply.
Berry Livingston vs. Missouri Department of Corrections
(Overview Summary)
Missouri Court of Appeals, Western District - WD81789

Voice Identification Not Impermissibly Suggestive
Identification evidence is admissible if it results from a witness’s recollections, but not if it results from police suggestions. Witnesses heard and recognized defendant’s voice when all happened to be at the police station at the same time, and no substantial evidence showed any suggestion “by word or deed” from police. Statute allows the State an interlocutory appeal from circuit court’s order suppressing evidence. Circuit court erred in suppressing voice identification, so Court of Appeals reverses and remands.
Missouri Court of Appeals, Southern District - SD36366


No Claim Stated Under Missouri’s Teacher Tenure Act
Respondent brought an action for violation of the protections provided for a permanent teacher under Missouri’s Teacher Tenure Act. The Act defines a permanent teacher in part by years of employment as a teacher in a public school system. Respondent’s petition did not allege such experience, in that he failed to allege sufficient years in a public school system, a waiver of that requirement, or that previous employers constituted public school systems. The Respondent failed to state a claim on which the Act offered relief. The Court of Appeals reverses the judgment for respondent and remands to circuit court with instructions to dismiss the petition for failure to state a claim.
Michael Welsh vs. Kansas City Public Schools
(Overview Summary)
Missouri Court of Appeals, Western District - WDD83337


Whistleblower Claim for Wrongful Termination Stated
At-will employment is subject to exceptions for public policy, including reporting violations of law or public policy. The petition alleged that a county agency conditioned employer’s funding on compliance with law or public policy, that appellant reported violations to the county agency, and employer fired appellant for reporting the violations. Those allegations state a claim for wrongful termination, so the circuit court erred in dismissing the petition, and the Court of Appeals reverses that judgment.
Michael Jaeger vs. Resources for Human Development, Inc
(Overview Summary)
Missouri Court of Appeals, Western District - WD83141


Termination of Parental Rights
Statutes allow circuit court to terminate parental rights for specified grounds, and sufficient evidence supported findings against appellant parent on those grounds. Appellant parent did not challenge the sufficiency of that evidence in circuit court or on appeal so the circuit court’s consideration of additional evidence—lack of emotional bond between parent and child—is irrelevant. And, while no post-judgment motion was necessary to preserve that point, it was necessary to present it to the circuit court in some fashion, which appellant did not do.
In the Interest of: D.L.S. III and D.L.S.; Juvenile Officer vs. D.L.S. II
(Overview Summary)
Missouri Court of Appeals, Western District - WD

Termination of Parental Rights Was in Child’s Best Interest
In an action to terminate parental rights, if the circuit court determines that statutory cause for termination exists, the circuit court must then determine whether termination is in the child’s best interest. That determination finds guidance in seven statutory factors, of which no minimum number is necessary to determine that termination is in the child’s best interest. Parent relapsed into a lengthy history of alcohol addition, was incarcerated for all but a few months of child’s life, built no emotional bond with child, and offered no support. Termination of parental rights affirmed.
Missouri Court of Appeals, Southern District - SD36546


Nursing Home Administrator License Barred After Unlicensed Practice
Statutes provide that unlicensed practice is grounds for denying an application for a nursing home administrator license. On the filing of an application, the licensing agency performed a non-contested case review, and had discretion to deny the application. On administrative review of the licensing agency’s decision, the Administrative Hearing Commission performed a contested case review of the application de novo, and had the same discretion to deny the application. On judicial review, the circuit court reviewed the Commission’s decision on the record made before the Commission for abuse of discretion. Abuse of discretion occurs when a ruling “is clearly against the logic of the circumstances . . . and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” That does not include the mere presence in the record of evidence favorable to appellant, so the appellant showed no abuse of discretion before the Commission, and the circuit court erred in substituting its judgment for the discretion vested in the Commission.
Dawn Renee Furman vs. Board of Nursing Home Administrators
(Overview Summary)
Missouri Court of Appeals, Western District - WD


Workers’ Compensation Offset Was Unambiguous
A third party’s insurance paid its limits for bodily injury coverage of $25,000 toward insured’s medical expenses of $250,000. Insured’s automobile liability policy had underinsured motorist coverage, but also had a $100,000 limit on that coverage, and offsets for “[a]ny amount payable under this coverage” by any third party’s insurance payment, and any workers’ compensation award for medical expenses to insured. Insured received about $150,000 in workers’ compensation for medical payments. Taking the workers’ compensation award and the third party’s insurance payment from the limit left no coverage. The words “[a]ny amount payable under this coverage” unambiguously did not refer to insured’s medical expenses.
Missouri Court of Appeals, Southern District - SD36253


Misinformation on Filing Deadline Led to Untimely Filing
Misinformed by an erroneous date on a transcript, post-conviction counsel untimely filed an amended motion. The circuit court ruled on the merits of the amended motion without inquiring into abandonment. Court of Appeals reverses and remands for an inquiry into abandonment.
WESLEY L. HATMON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36289

Real Property

Improvements Assessed as Owned
State Tax Commission assessed improvements to land under the bonus value method, which applies to leasehold interests, which appellant’s predecessor once had. But, when the assessment occurred, appellant owned the improvements, as shown by the lease’s express provisions treating the improvements and the underlying land separately, transferring title to appellant, allowing appellant to mortgage the improvements without the underlying landowner’s approval, and assigning any proceeds from condemnation of the improvements. The interpretation of those documents is a matter of law for the courts, not the testimony of witnesses, to determine. No construction of the revenue laws is necessary, so the Supreme Court does not have exclusive appellate jurisdiction, and the Court of Appeals can decide the appeal.
David Cox, Platte County Assessor, and Park Hill School District vs. Grady Hotel Investments, LLC 
(Overview Summary)
Missouri Court of Appeals, Western District - WD


Accounting Authority Orders Explained
A public utility brought a general rate-setting action before the Public Service Commission. The Commission based its order on the utility’s assets and liabilities for a specified period in the past: a test year. The test year included the operation expenses of a generator site, as did the Commission’s order, so the resulting rates required customers to pay for the site’s operation. Soon after, the site ceased operation, leaving customers paying for a site not in use. But the Commission’s order also left open the possibility of an accounting authority order. An accounting authority order tracks extraordinary amounts for a future general rate-setting action, even if they occur outside the test year chosen for the future general rate action, if confining those amounts to the test year would distort the company’s rates. Such an order does not affect, and so does not constitute a collateral attack on, any earlier rate-setting order. And the Commission’s order allowed it because the parties asked it to. An accounting authority order may track either an asset or a liability, for the protection of the utility or the customer, under the governing regulations’ plain language. “[W]hether an item is ’extraordinary’ is evaluated by looking at the event in relation to ‘the ordinary and typical activities of the company,’ not in comparison to the activities of the industry as a whole.” The record supports a conclusion that ceasing operation at the site was extraordinary, and the utility’s plan to cease operation did not change that conclusion. “It has never been the law that AAOs are reserved for unplanned, un-anticipatable events.” Retroactive rate-setting means changing past rates for the future, but using tracked amounts in a future general rate action simply uses past amounts to set future rates, so it does not constitute retroactive rate-setting. The Commission did not abuse its discretion in issuing the accounting authority order.
Office of Public Counsel and Midwest Energy Consumers Group; Missouri Public Service Commission vs. Evergy Missouri West, Inc. f/k/a KCP&L Greater Missouri Operations Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD

Workers’ Compensation

Uncontradicted Evidence Assigned Liability to the Second Injury Fund
When a claimant has a primary work-related injury, the Labor and Industrial Relations Commission must first determine any degree of disability. Then the Commission must determine whether the primary injury alone totally and permanently disabled the claimant, or a pre-existing permanent partial disability combined with a later work-related injury to make the primary work-related injury even worse for employment. If so, the Second Injury Fund is liable for part of a claimant’s award. On that issue, the Commission may reject uncontradicted evidence, but not ignore it. Uncontradicted evidence showed that the Commission should have assigned some of the liability for claimant’s award to the Second Injury Fund.
Sabrina Williams, Respondent, v. City of Jennings, Appellant, and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108393