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Case summaries for July 30 - Aug. 5, 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 | Business | Civil | Criminal | Personal Injury | Post-Conviction | Real Estate


Summary Judgments Not Final
Denying a motion for summary judgment does not imply granting summary judgment for the non-movant. Partial summary judgment is interlocutory, subject to amendment while any claim remains pending as to any party, and not final. Rule on certification of a non-final judgment for appeal requires a determination that there is no just reason for delay of appellate review. Factors related to judicial economy weigh against certification.
David and Viola Stagner vs. Wells Fargo Bank, N.A., as Trustee for AEGIS Asset Backed Securities Trust Mortgage Pass-Through Certificates, Series 2004-1, and Select Portfolio Services, Inc., and Millsap & Singer, P.C.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83819 and WD83842


Share of Business Sought, Summary Judgment for Defense Partially Successful
Claimant alleged ownership in an LLC and the defending party alleged that claimant was merely an employee. LLCs are legal entities, so claiming ownership in a successor LLC is not judicially estopped by failure to claim ownership in a predecessor LLC during bankruptcy. A limited liability company’s organizers, members, and managers need not be the same people; so, absence from one group does not negate presence in another group. And an LLC’s operating agreement can be unwritten, so evidence of an unwritten agreement raised a genuine dispute as to ownership in an LLC, when it was sufficiently specific to be more than merely self-serving. That genuine dispute sustained claimant’s theories of constructive trust, fraud, and breach of contract against defending party’s motion for summary judgment. As to claimant’s theory of promissory estoppel, the defending party negated an element of the claim, that fulfilment of the promise was the only cure for detrimental reliance. As to claimant’s theories of quasi-contract and quantum meruit, defending party showed that claimant could not present evidence of his services’ value, so claimant could not support that element of those claims. Summary judgment on claims of promissory estoppel, quasi-contract, and quantum meruit affirmed; reversed on other claims and remanded for further proceedings.
Austin Watterson vs. Josh Wilson, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83848

No Claims Stated Over SBA Loan
The elements of breach of contract include causation between defendant’s conduct and plaintiff’s damages, but plaintiff’s allegations, about a Small Business Administration loan and a limited liability company, did not describe any liability in the defendant bank. The implied covenant of good faith and fair dealing attaches to every contract, but does not add any obligation to the contract as written. The elements of claims for fraud or misrepresentation include a false statement, but plaintiff’s allegations of misrepresentation were negated by express terms of the loan agreement. The elements of unjust enrichment include a benefit from plaintiff to defendant, but plaintiff only alleged a benefit to the defendant from the SBA. Circuit court did not err in dismissing plaintiff’s petition for failing to state a claim. 
SEAN SIEBERT, Plaintiff-Appellant v. PEOPLES BANK, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD36814


Judicial Immunity Applied
On a motion to dismiss for failure to state a claim, courts grant the motion when the petition’s allegations either describe no claim, or describe an affirmative defense to a claim. Judicial immunity applies to all conduct in a judicial capacity, even if done without authority, if done within the judge’s jurisdiction. Circuit court jurisdiction is plenary, so it included appellant’s probation, even though the circuit court mistakenly revoked appellant’s probation after it expired. That conclusion had support in appellant’s allegation that respondent was a circuit judge.
Missouri Court of Appeals, Southern District - SD36954

Orders Must Have Basis in Evidence
Upon learning that a public defender had traveled to Mexico, circuit court sua sponte continued a criminal trial under guidelines not yet in effect. Circuit court also granted the State’s motion for sanctions against the area trial office in the amount of a State witness’s travel expenses. “A trial court may use its inherent powers to impose sanctions only when parties act in bad faith.” No finding of bad faith appears in the circuit court’s order, only a finding of negligence, and no evidence shows bad faith. Court of Appeals makes permanent its writ of prohibition barring enforcement of the order for sanctions. 
Missouri Court of Appeals, Southern District - SD37064


No Harm from Omitting Definition of Recklessness
Appellant showed no plain error in circuit court’s refusal to strike a juror who said that facts known to the juror in a similar but unrelated case would not bias that juror. A guilty verdict on a lesser included offense does not constitute acquittal on the greater offense because that acquittal does not prove that the State failed to prove any element of the greater offense. Guilty verdicts on the lesser included offense and other charges related to the greater offense are not inconsistent and do not constitute double jeopardy. Appellant failed to show that the State’s closing argument on DNA was unsupported by the evidence and, if it were, appellant showed no resulting prejudice. Appellant showed no plain error in omitting the approved instruction defining recklessness, because that definition accords with common usage, and the jury found that appellant was reckless.
State of Missouri vs. Danzel Reese
(Overview Summary)
Missouri Court of Appeals, Western District - WD83362

Personal Injury

Relation Back Applies Only to Substitution of Parties, Not Additional Parties
Plaintiff filed a premises liability action against defendants based on control and operation of property. Plaintiff named one defendant in the initial and timely petition. Plaintiff named the other defendant in an amended petition filed outside the statute of limitations. The amended petition constituted an untimely addition of the other party, and it did not constitute a substitution of parties relating back to the initial petition, because no mistaken identification occurred in the initial petition. Circuit court’s dismissal of the amended petition affirmed. Angela Brown vs. VA Second LP
(Overview Summary)
Missouri Court of Appeals, Western District - WD84077


Counsel Ineffective for Failure to Endorse Alibi Witness
“It is the duty of [trial counsel] to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty.” An alibi witness provides a viable defense, and such witness’s initiative in offering testimony to trial counsel shows that the witness was available, which would have supported movant’s defense of misidentification.  Circuit court did not err in concluding that trial counsel’s performance was deficient.
Victor D. Vickers, Jr. vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83989

Trial Counsel Not Shown Ineffective in Multiple Acts Case
Movant did not show any prejudice from trial counsel’s decision not to object during testimony on victim’s behavior during interview. “A multiple acts case arises when there is evidence of multiple, distinct criminal acts, each of which could serve as the basis for a criminal charge, but the defendant is charged with those acts in a single count.” When evidence made one instance of sexual contact distinguishable from other instances, and instructions particularized the distinguishable incident, movant’s right to a unanimous verdict on the distinguishable incident was sufficiently protected. Protecting movant’s right to a unanimous verdict, on multiple indistinguishable incidents of sexual contact over time, requires no particularized instructions. Trial counsel was not ineffective for seeking more particularized instructions, and appellate counsel was not ineffective for deciding not to raise that issue on appeal.
Maurice R. Hogan vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83668

Movant Satisfied After Sentencing
Movant’s expression of satisfaction with plea counsel, even after sentencing, refutes movant’s allegation that movant relied on plea counsel’s misadvice, and that plea counsel failed to obtain and present records of rehabilitation. Circuit court’s description of the maximum sentence possible also refutes the allegation of reasonable reliance on plea counsel’s misadvice. A charge of ineffective counsel, based on advice regarding parole eligibility, states no claim without a citation to authority that determines parole eligibility.
Walter D. Combs, Appellant, vs. State of Missouri, Respondent
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108931

Real Estate

Too Late to Challenge Beneficiary Deed
An action for wrongful taking or possession is subject to a ten-year statute of limitations. Appellant filed an action based on constructive trust based on a fraudulent beneficiary deed. Constructive trust applies to wrongful retention of property, for which the time for filing starts with repudiation of the trust, but appellant did not allege wrongful retention or repudiation. Appellant alleged wrongful acquisition, for which the statute of limitations starts to run with notice of the conveyance, which occurred with the filing of the beneficiary deed. Fraud does not toll that time. Respondent’s continuous possession constituted the mere continuous effect of a completed act and did not constitute a continuous wrong.
Patricia Brown vs. Marjorie Pint, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD84032

Reckless Disclosure Statement Yields Punitive Damages and Attorney Fees
Missouri Merchandising Practices Act creates an action for deceptive practices, which for real estate agents, include reckless misstatements of property conditions. Instructions accurately reflected the duties of a real estate seller’s agent to the buyer as to seller’s disclosure statement and evidence supported submittal of those instructions. The Act allows awards of punitive damages for reckless conduct. Recklessness in a statement means a “high degree of awareness of [the] probable falseness of the statement or [. . .] serious doubts as to [its] truth.” Statutes allow an award of attorney fees to a prevailing plaintiff, which circuit court awarded, but erroneously excluded amounts from the lodestar calculation. Remanded to recalculate attorney fees at trial and on appeal.
Tiffanie Soetaert vs. Novani Flips, LLC, Platinum Realty of Missouri, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD82933 and WD82964

Triple Damages and Attorney Fee for Removal of Fixtures
Parking lot lights were fixtures because landlord intended for them to be permanent, though tenant found them easy to remove, and removing them was waste. The measure of damages for waste is diminution in value. Tenant prevented landlord from mitigating damages when tenant sold the fixtures without notice to landlord. “[A]n offer, by the party committing the waste, to return the tortiously-removed property - in this case, [tenant]’s offer to reinstall the [fixtures] for a price - does not constitute a reasonable opportunity to mitigate.” But mitigation is irrelevant to intentional tortious damages. And statutes provide triple damages for waste, so Court of Appeals vacates circuit court’s judgment as to mitigation and enters the correct judgment. Circuit court did not abuse its discretion in awarding an attorney fee several times the damages found.
Larry A. Bedford and Carol A. Bedford, Respondents/Cross-Appellants, vs. Audrain County Motor Company, Inc., d/b/a Auffenberg Motor Company of Mexico, Appellant/Cross-Respondent
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108993