Case summaries for July 29 - Aug. 4, 2022

Appellate | Criminal | Environmental | Family | Health | Insurance | Post-Conviction | Utilities

Appellate

Inadequate Record Requires Dismissal   
Rule allows certification of a ruling for appeal, if there is no just reason for delay, but only on the circuit court’s express determination. A final judgment must dispose of all claims as to all parties, including a party never served, unless that party is dismissed. The record on appeal must always include the legal file, which must always include the pleadings and judgment, for which the time to file may be extended on a motion or sua sponte. After untimely filing of an incomplete record, uncorrected after extensions of time, the Court of Appeals finds that “manifest justice does not require our suspension of those rules” so the court must dismiss the appeal.   
J.W. ex rel. A.W., Appellant, v. St. Louis Public Schools, et al., Respondents.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110136 

Criminal

Persistent Misdemeanor Offender Status Affirmed  
Resisting arrest is a class E felony if the arrest resisted is a felony, which includes assaulting a peace officer. Evidence, that the officer arrested defendant after defendant assaulted the officer, supported an inference that the arrest was for assaulting an officer. Contrary inferences are irrelevant on appeal. Statute provides enhanced sentencing on proof of status as a persistent misdemeanor offender, which requires proof of previous convictions for conduct that constituted a class A or B misdemeanor under Missouri law. Defendant’s first Arkansas conviction for driving while suspended followed a North Dakota conviction for driving while suspended, making it a second offense, which is a class A misdemeanor in Missouri. Therefore, that Arkansas conviction counted toward persistent misdemeanor offender status.  
STATE OF MISSOURI, Plaintiff-Respondent vs. JORDAN C. HADEN, Defendant-Appellant
Missouri Court of Appeals, Southern District – SD37086 

Environmental

U.S. Statutes and Easement No Obstacle for Eleven Point State Park   
Statutes authorizing the Department of Natural Resources to acquire lands of “scenic, historic, prehistoric, archeological, scientific, or other distinctive characteristics or natural features” and make no mention of public use. Even if they did, public use does not require public physical access, and statutes also authorize the Department to restrict public access. Therefore, the United States Wild and Scenic Rivers Act, nor the United States’ scenic easement on such land, support—and do not conflict with—the Department’s acquisition and dedication of that land for a state park. Circuit court’s contrary conclusion “is in direct contradiction to the plain language of [the Department’s] authorizing statutes and regulations” and is “unsupported in statute, regulation, case law, and the historical practices of parks in Missouri.”   
VAN McGIBNEY, et al., Respondents vs. MISSOURI DEPARTMENT OF NATURAL RESOURCES, Appellant   
Missouri Court of Appeals, Southern District – SD36846 

Family

No Plain Error in Early Report   
A motion for new trial is necessary, but not sufficient, to preserve error; a contemporaneous objection is also necessary, and appellant made none. “The circuit court must strictly and literally comply with the statutes governing the termination of parental rights” but no plain error occurred when, in the filing of a petition to terminate parental rights, the Children’s Division prepared a report covering both children as eventually ordered. 
IN THE INTEREST OF: S.C.A. and I.S.A., minor children under seventeen years of age GREENE COUNTY JUVENILE OFFICE, Plaintiff-Respondent, v. B.N.C., Natural Mother, Respondent-Appellant.   
Missouri Court of Appeals, Southern District – SD37443 and SD37444 

Health

Medicaid’s 15-Mile Rule for Trauma Centers Is Okay   
Agency regulation required denial of a license to operate a level III trauma center within 15 miles of another. The circuit court did not conclude that the regulation was immune from the Constitution’s ban on special laws and, even if it had, the record supports a finding that a rational basis supports the regulation. The circuit court found that the regulation was not arbitrary and capricious. Appellant challenged that ruling as against the weight of the evidence, which requires acknowledging all evidence supporting the ruling, and appellant failed to do so. The absence of contemporaneous records from over 20 years ago to show the Department’s adherence to substantive statutory standards does not prove a departure from those standards.   
Prime Healthcare Services-Kansas City, LLC, d/b/a St. Joseph Medical Center vs. State of Missouri Department of Health and Senior Services   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD84723

Insurance

Public Road Defined for UM Insurance   
Plaintiff’s automobile insurance policy included uninsured motorist coverage but excluded coverage for damages by a vehicle “[d]esigned mainly for use off public roads while not on public roads.” Plaintiff was struck by a golf cart while bicycling in a parking lot. A golf cart can be a motor vehicle when operated on a public road, and a road can be public depending on access and use. Plaintiff failed to carry his burden of showing a degree of public access and an amount of public use sufficient to make the parking lot a public road. Judgment for insurer affirmed.   
M.P., a minor, by and through AMANDA ZIPFEL, as Next Friend, Appellant vs. TREXIS ONE INS. CORP., f/k/a ALFA SPECIALTY INS. CORP., Respondent 
Missouri Court of Appeals, Southern District - SD37105               

No Coverage for Missing Property   
Insured’s businessowner policy covered losses to customer property in insured’s possession but unambiguously excluded coverage of property gone missing when what happened to that property is shown by no physical evidence. Physical evidence is not subject to definition by insurance industry standards, but by plain and ordinary understanding, which requires more than testimony. In an action for equitable garnishment, on motions for summary judgment, plaintiffs showed that their family VHS and other recordings for digitization disappeared from insured’s inventory. But plaintiffs offered only testimony on how that happened, and no physical evidence, so they did not raise a genuine dispute of material fact. Judgment for insurer affirmed.   
GARY CHASTAIN and CASEY CHASTAIN, Appellants vs. UNITED FIRE & CASUALTY COMPANY and LAWRENCE PHOTO AND VIDEO, INC., Respondents   
Missouri Court of Appeals, Southern District – SD36869 

Statute on Policy Limits Discussed   
Statute, governing insurer’s liability beyond policy limits, provides the elements of a defense to such liability. The defense is against claims beyond policy limits and the elements include a good faith defense. Insurer sought a declaration of no liability at all pending underlying litigation on insured’s liability. The Missouri Constitution vests the Supreme Court of Missouri with exclusive jurisdiction over constitutional challenges to a statute, but only if the challenge is more than colorable, which does not describe appellant’s citations to “generally applicable caselaw and the conclusory assertion that any contractual impairment is substantial.”   
Garrison Property & Casualty Insurance Company vs. Cherlyn McWhirt, et al.   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD84612 

Post-Conviction

Expert Would Not Have Helped   
“Given the indeterminate nature of sentencing, prejudice based on a claim that ineffective assistance of [trial] counsel affected sentencing is nearly impossible to establish, especially when the motion court and sentencing court are the same” because “[s]pecial deference is given when the motion court judge and sentencing judge are the same.” At movant’s sentencing hearing, if trial counsel did not think about calling an expert witness for mitigation evidence related to juvenile status and other mental health diagnoses, movant might have a claim for ineffective assistance of trial counsel. But trial counsel did consider that strategy and decided against on strategy grounds—juvenile status was not relevant because life in prison without parole was not applicable, the sentencing report supported movant’s arguments, and trial counsel sought to avoid cross-examination of the expert.     
Delaunte Bozeman, Appellant, vs. State of Missouri, Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District – ED109783

Overwhelming Evidence Negated Prejudice   
Statute closes probation records so trial counsel’s unsuccessful, though repeated, efforts to access those records does not show that trial counsel was ineffective. The absence of an objection on direct examination does not show ineffective assistance of trial counsel because, “[i]n many instances[,] seasoned trial counsel do not object to otherwise improper questions or arguments for strategic purposes.” Sound strategy supported the decision to refrain from that cross-examination and a decision to refrain from impeachment of a State witness does not support relief. Movant showed nothing sub-standard about trial counsel’s handling of a sympathetic witness and offered no evidence that the witness made any false statement. Overwhelming evidence of movant’s guilt negates prejudice alleged in trial counsel’s performance.   
Anthony Balbirnie vs. State of Missouri   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD84667

Utilities

No Claim from Replacement of Infrastructure   
Plaintiff property owner cited the statute providing treble damages for a trespass to real property, but other than broken glass, the statute specifically addresses only the removal of natural resources. And the record supported the circuit court’s findings that no trespass occurred, because defendant contractor stayed within City’s utility easement when replacing utility infrastructure, and because defendant contractor restored all the land disturbed by that work. The restoration of service due to unpaid bills was not at issue.   
Kennedy Jones vs. Leath & Sons, Inc.   
(Overview Summary)   
Missouri Court of Appeals, Western District – WD84771