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Case summaries for July 31 - Aug. 6


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.

Criminal | Family | Insurance | Post-Conviction


Release Mandated on Completion of Program
Statutes provide a long-term substance abuse treatment program, on completion of which, circuit court may execute sentence on relator or place relator on probation. During short-term program, before long-term program had started, relator received two conclusory notations of minor probation violations. After the start of long-term program, relator “showed an ability to self-correct behaviors when addressed, and had met all objectives and expectations of the long-term program.” Without an evidentiary hearing, that evidence did not constitute competent evidence to execute sentence. Mandamus can correct an abuse of discretion. Court of Appeals issues a peremptory writ of mandamus requiring circuit court to place relator on probation.
State of Missouri, ex rel., Terry Upshaw, Relator, v. Hon. Troy Cardona, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108935


Maintenance Reduced, Not Eliminated, on Retirement
Statutes allow a modification of maintenance, on proof of a substantial and continuing change of circumstances that make the original maintenance order unreasonable, which include reasonable needs and ability to pay. On appellant’s motion to modify maintenance to zero, appellant showed that respondent retired while still employable. Circuit court granted only partial relief based on respondent’s history of post-dissolution employment, reduction of expenses, health problems, desire to spend time with family, and retirement at an appropriate age.
Gregory Tillett, Appellant, vs. Margaret Tillett, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107965


All Sums v. Pro Rata Coverage Discussed
Evidence on insured’s transition to self-insurance was relevant to whether the events occurred when the policy was in effect. “[U]nder ‘all sums,’ an insurer is jointly and severally liable for all legal liability where, as here, some property damage occurred during the insurer’s policy period [,]” so evidence of liability makes evidence relevant to allocation admissible. Insured showed no prejudice from entering evidence of allocation and divisibility into the record, nor from an initial ruling on pro rata allocation. Insured’s argument, that insurer’s affirmative defense lacked evidence on one element, did not preserve any challenge based on another element of that defense. Insurer raised the affirmative defenses of insured’s late notice of claim and lack of cooperation, in violation of the insurance contract. Evidence supporting a jury question on defense included insured’s repeated requests for information and loss of evidence from late notice of the claim. “[C]ompulsory discovery in a lawsuit is no substitute for an insured’s original cooperation.” The circuit court restricted the instructions to ultimate facts without evidentiary facts. The jury awarded damages in “the exact amount of defense costs ... itemized on its claim for” disallowed past legal defense costs; but whether the jury intended that amount as past legal defense costs, or intended the award as allowable remediation costs, is outside of appellate court review. Coverage for defense of future lawsuits applies to efforts at reducing possible liability during the duty to defend, and includes expenses between notice of a claim and resolution of an action. Defense of future lawsuits does not include expenses after the resolution of a State enforcement action by settlement and resulting consent decree.
Northrop Grumman Guidance and Electronics Company, Inc. vs. Employers Insurance Company of Wausau; OneBeacon America Insurance Company; Certain Underwriters at Lloyds of London; Certain London Market Insurance Companies
(Overview Summary)
Missouri Court of Appeals, Western District - WD82615, WD82623 and WD82636

For Owned Vehicles Exclusion, Ownership Means Title
Underinsured coverage on motor vehicle policy excluded events occurring while insured was in any other vehicle owned by insured and had separate provisions for other vehicles possessed by insured. Policy defined ownership as holding title. Insured held title. Therefore, when insured was in a wreck while driving such other vehicle to which he had title, the exclusion for other vehicles owned applied, rather than provisions governing other vehicles possessed.
Missouri Court of Appeals, Southern District - SD36528


No Foundation for Expert Testimony
The circuit court did not abuse its discretion in excluding the opinion of a voice identification expert offered by affidavit, when the affidavit did not support the reliability of the data supporting the opinion, and the opinion did not relate specifically to the evidence before the jury. The circuit court did not abuse its discretion in excluding the opinion of a firearms identification expert who testified that he based his opinion “on visual observations and common sense. The jury could do the same.” Appellant showed no prejudice from excluding an opinion about different firearms fitting appellant’s holster. In any event, appellant’s motion for new trial was too late to meet the rule’s deadline extended as the rule allows. The circuit court’s incorrect announcement of the extended deadline does not waive the rule’s extended deadline, so appellant preserved none of his points for review.
Missouri Court of Appeals, Southern District - SD36022

Exceptions to Timely Filing Not Pleaded
Filing a notice of appeal constitutes taking an appeal for purposes of calculating the deadline for filing an initial motion. The deadline for filing an initial motion to set aside a conviction does not have an exception for abandonment. Third party interference excuses timely filing, but the conduct of retained counsel does not constitute third party interference. Court of Appeals reverses circuit court’s ruling on the merits and orders circuit to dismiss.
BRIAN L. MCDANIEL, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36176