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Case summaries for Aug. 5 - Aug. 11, 2022


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.

Administrative | Civil | Contract | Juvenile | Mental Health | Personal Injury | Post-Conviction | Tax


Judicial Review of Non-Contested Case by Mandamus Discussed 
Complainant alleged that employer’s law firm assisted in retaliation, for exercising employment-related statutory rights, but the Missouri Human Rights Commission decided that such facts were outside the Commission’s authority. That procedure was a non-contested case, for which the Missouri Constitution allows judicial review to determine, at a minimum, whether the decision “[was] unconstitutional, unlawful, unreasonable, arbitrary, or capricious or involve[d] an abuse of discretion.” Statute allows such review by an action for writ of mandamus, the elements of which “uniquely require one to prove a clear, unequivocal, specific right [;]” but that requirement is not inconsistent with the constitutional standard. Statutes, barring retaliation for exercising employment-related rights, apply only to specified persons, so complainant could not show any clear, unequivocal, specific right. Judgment granting writ of mandamus reversed. 
State ex rel. Jim Swoboda, Respondent, vs. Missouri Commission on Human Rights, Appellant, Alisa Warren, Appellant, and Armstrong Teasdale, LLP, Appellant. 
(Overview Summary) 
Supreme Court of Missouri - SC99000  


Allegations Evidenced in Summary Judgment, Counter-Affidavit Ineffective 
Insured made a claim under a medical insurance policy, which provided a hospital confinement benefit, but excluded facilities used for rehabilitation. Law of the case, from an earlier appeal from an earlier summary judgment, established that the policy’s terms were unambiguous. Insurer claimed benefits for a hospital confinement, which insurer denied in part based on insured’s stay in a hospital’s rehabilitation unit, so insured sued for breach of contract and vexatious refusal to pay. On a motion for summary judgment, insurer alleged and showed that insured used the unit for rehabilitation, establishing that material fact and a prima facie case for insurer’s defense. In response, insured merely alleged that insured had received other services in addition to rehabilitation, which did not raise a genuine dispute as to any material fact. “[W]here a denial fails to address the substance of an alleged uncontroverted material fact, it is an ineffective denial that cannot serve to defeat summary judgment.” Summary judgment for insurer affirmed. 
Missouri Court of Appeals, Southern District - SD37282 


Pandemic Did Not Support Impossibility Defense 
In an action for breach of contract, on a motion for summary judgment, defendant raised the affirmative defense that performance was impossible. That defense requires proof that defendant did “virtually” everything “within its powers to perform its duties under the contract.” The summary judgment record shows no such effort. “Defendants conflated performance pursuant to the Note (repayment of a loan) with running their business in order to repay the Note. The fact that it may have been impossible to operate a valet services business during the COVID-19 pandemic does not render it impossible to perform the terms of the Note.” Note and Guaranty provided attorney fees for enforcement, so the Court of Appeals remands the action to circuit court to determine the amount of the award. 
Premier Valet, LLC, Respondent, v. Premier Valet Services, LLC, and Brian Canavan, Appellants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110242


Virtual Presence Insufficient 
Constitutional provisions governing confrontation and due process give a juvenile the right to be present during an evidentiary hearing on certification for prosecution under criminal law. Those rights are subject to waiver, if knowing and voluntary, which the record does not show. Remanded for a new hearing in person.  
In the Interest of: A.L.D.  
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109679

Mental Health

Voir Dire Sufficient 
In an action to confine respondent as a sexually violent predator, the issues include the risk of recidivism. During voir dire of a venire, defense counsel thoroughly examined the venire persons, including whether past events were determinative of recidivism. “Every prospective juror who admitted bias was stricken for cause.” Therefore, respondent could show no prejudice when the circuit court sustained the State’s objection to one question on respondent’s capacity for change. 
In the Matter of the Care and Treatment of R.H., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109733  

Personal Injury

Liability for Off-Site Crime Not Shown 
In an action for negligence, a business generally has no duty to protect an invitee from a third person’s criminal act, because that act is not foreseeable. A business may be liable under a special relationship when the invitee entrusts the business with their safety and the business knows that a dangerous person is present. No such exception arose when defendant concert venue released plaintiff from its medical attention to a third person who showed no sign of being dangerous. Summary judgment for the defendant affirmed. 
M.B., Appellant, vs. Live Nation Worldwide, Inc., and Leslie Ramsey, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110291  


Findings Were Virtually Unchallengeable 
Counsel is ineffective when performing below the standard of reasonable care, and prejudice occurs when counsel’s failure to meet that standard alters the outcome. Movant claimed prejudice from trial counsel’s failure to call character witnesses at sentencing. But when the same circuit court heard the evidence on guilt, sentencing, and post-conviction relief, the circuit court’s findings on that issue are virtually unchallengeable. And the witnesses’ testimony would have addressed guilt and not sentencing. Counsel has no duty to propound a meritless theory, like an evidentiary challenge to a record that supported the State’s allegations, so showing that appellate counsel decided not to appeal on that basis cannot support relief. No evidentiary hearing was necessary to deny the motion. 
Hydres Binion, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109813   

Sound Strategy Governs Objections 
The circuit court’s findings carry a presumption of correctness and movant must show clear error. Whether to object is a matter of trial strategy because an objection may do more harm than good for the defense. When the State cited the credibility of victim’s testimony, which included matters favorable to the defense, trial counsel’s decision to make no objection constituted sound trial strategy. That negates movant’s allegation that trial counsel was ineffective. 
Corey McClendon, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109767   

Credibility Determinative on Prejudice 
Once a defendant enters a plea of guilty, “the voluntariness and knowledge with which the plea was made” is the only matter remaining to which plea counsel’s competence is relevant. At the evidentiary hearing on the motion, no witness remembered whether plea counsel discussed a lesser-included offense, which has no probative value and cannot prove movant’s claim. Even if movant cited any sub-standard practice, movant showed no prejudice, in that the circuit court found that movant would have taken the State’s offer anyway. 
Thomas F. McMullan, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109685


No Implied Exemption from Property Tax 
Missouri Constitution creates property tax exemptions, and bars any others except as explicitly authorized, which does not include “solar energy systems not held for resale.” Missouri Constitution’s provision, authorizing the General Assembly to set rates for the assessment of property according to classifications and sub-classifications, does not implicitly authorize further exemptions. 
Brent Johnson, in his Official Capacity as the Assessor for Greene County, Missouri and Greene County, Missouri, Appellants, vs. Springfield Solar 1, LLC, Respondent, vs. Allen Icet, in his Official Capacity as the Collector for Greene County, Missouri, Appellant. 
(Overview Summary) 
Supreme Court of Missouri - SC99441