Case summaries for Aug. 11 - Aug. 17, 2023

Administrative | Civil | DWI | Education | Employment | Family | Juvenile | Mental Health | Post-Conviction | Probate | Utilities

Administrative

Degree of discipline affirmed  
Once the Administrative Hearing Commission concludes that a license is subject to discipline, statutes commit the degree of discipline to the licensing agency’s “expertise [which] ‘consists of the ability, drawn from ... knowledge of the industry practices and standards, to assess the gravity of the licensee’s infractions, and to fit the sanction to the offense.’” That decision is subject to judicial review for an abuse of discretion, which occurs only on a failure to carefully consider all circumstances. The speed with which a decision is issued does not show an abuse of discretion. Knowledge of the practice and geography at issue does not show bias. An offer of proof is necessary to preserve error as to the exclusion of evidence. Arguments not raised before the agency are not preserved for appellate review.   
Lawrence L. Ciesemier vs. Directory of Department of Public Safety  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85770

Civil

Change of venue ordered  
Statutes provide that, for out-of-State plaintiffs alleging out-of-State events venue against an in-State resident, venue is in the county of the defendant’s registered agent; plaintiff’s former Missouri county of residence is irrelevant. Six plaintiffs filed in a different venue. Circuit court consolidated five of the cases. Defendant relator filed a motion to transfer venue of the five consolidated cases. The motion did not name the sixth case, and a later consolidation with the five cases did not remedy that omission, so the motion did not apply to the sixth case. The sixth case was subject to a separate motion for transfer, but that motion was too late, so defendant relator waived transfer as to the sixth case. As to the five cases, the circuit court denied transfer, and defendant relator sought extraordinary relief. The Missouri Supreme Court makes permanent its writ of prohibition barring the circuit court from any further action in the five cases other than a transfer to the correct venue. The writ does not apply to the sixth case.   
State ex rel. Monsanto Company, Relator, vs. The Honorable Michael Mullen, Respondent.  
(Overview Summary)  
Supreme Court of Missouri - SC99942

Post-judgment intervention denied  
Statutes provide that any party aggrieved by any judgment may appeal from the final judgment, meaning that interlocutory rulings are subject to appeal upon final judgment. The statute’s use of “party” is not limited to persons bound by the final judgment. Therefore, appellant movants for intervention have the right to appeal the circuit court’s denial of their motions to intervene. A motion to intervene as a matter of right must include a pleading setting forth a claim or defense. Appellants county health centers failed to do so, and the circuit court did not err in denying their motions of appellants county health centers. Appellants counties included the required pleading. The pleadings of appellants counties alleged an interest in protecting their authority that no other party would protect because the Attorney General had abandoned further appeal after judgment.  Only then was the Attorney General’s position known to appellants, so the motions to intervene were timely from that point. Substantial justice supported post-judgment intervention because of the presence of harm to appellants and the absence of harm to other parties. Judgment is vacated, case remanded to grant appellant counties’ motions, file their pleadings, and amend the judgment.  
Shannon Robinson, et al., Respondents, vs. Missouri Department of Health and Senior Services, Respondent; St. Louis County, Appellant; Board of Trustees, Livingston County Health Center and Melanie Hutton, Administrator, Cooper County Public Health Center, Appellants; Jefferson County Health Center, Appellant; Jackson County, Missouri, Appellant.  
(Overview Summary)  
Supreme Court of Missouri - SC99864

DWI

Excessive blood alcohol distinguished from refusal  
The Director of Revenue disciplined driver’s license for driving with excessive blood alcohol, as shown by a blood draw pursuant to a judicial warrant, not for refusal under the Implied Consent statutes. On appeal de novo to circuit court, circuit court did the same. The Implied Consent statutes therefore did not apply, including those related to intoxication and time to contact a lawyer, and circuit court did not err in saying so. That the arresting officer read the Implied Consent law does not change that result. “[M]ore than sufficient evidence [supported] the trial court’s judgment.”   
Joseph Evan Dunbar vs. Director of Revenue  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85727

15-minutes observed  
An objection based on foundation generally is insufficient to preserve error but may be remedied by discussions that clarify the specific ground of the objection. Driver’s citation to the regulation on chemical tests generally was insufficient but the record shows the circuit court’s understanding of, and ruling on, a specific provision. The provision at issue required a 15-minute observation before administering the test, but that does not mean eyes-on viewing of the driver without momentary breaks, so the record supports a finding of compliance.   
Carter Andrew Kinkead vs. Director of Revenue  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85506

Late disclosure supports exclusion  
Rules of criminal discovery impose a duty of continuous supplementation, which driver did not do as to documents supporting the testimony of driver’s expert witness. Circuit court’s restriction of driver’s evidence accordingly was not an abuse of discretion.   
State of Missouri vs. Brenda L. Ivy  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85259

Education

Compulsory attendance enforced  
Statute makes parents criminally liable for knowingly failing to cause their children to attend school “on a regular basis [.]” Regular plainly means in accordance with the school calendar, so the statute is not unconstitutionally vague. Local standards of enforcement, including percentages of days attended, do not change that result. Knowledge was subject to inference from school communications and the absence of any excuse for regular attendance authorized by statute.   
State of Missouri, Respondent, vs. Caitlyn Cordell Williams, Appellant. and State of Missouri, Respondent, vs. Tamarae Lynn LaRue, Appellant.  
(Overview Summary)  
Supreme Court of Missouri - SC99719

Employment

No defense shown for unprescribed opioids 
Statutes forbid mandatory disclosure of medical conditions by employers but allow such inquiry for health, safety, and job qualifications; like whether a drug treatment facility employee takes unprescribed opioids. On a motion for summary judgment, a defending party prevails if it establishes beyond genuine dispute that, after sufficient time for discovery, a claimant party cannot produce evidence supporting its claim. In employee’s action under the Missouri Human Rights Act for disability discrimination, employer established that it discharged employee for unprescribed opioid use in violation of employer’s policy without discriminatory or retaliatory purpose, and that employee had no evidence of any disability. Employee’s prescription, expired for two years, did not satisfy employee’s policy. Employee alleged chronic back pain but did not offer any evidence to raise a genuine dispute of fact; and did not show that she had disclosed any medical condition or opioid use; or been disabled, regarded as disabled, refused reasonable accommodation. In employee’s action under the workers’ compensation statutes for retaliation, employee could not show that a workers’ compensation claim made while drug test results were pending was a motivating factor in her termination. Summary judgment for employer affirmed. 
ASIA ASHBY, Plaintiff-Appellant vs. WOODRIDGE OF MISSOURI, INC., et al., Defendants-Respondents
Missouri Court of Appeals, Southern District - SD37420

Family

Termination of parental rights denied  
Juvenile officer filed an action to terminate mother’s parental rights for abuse and unfitness. The evidence supported a finding that mother committed the abuse or knew who did. The evidence also supported a finding that father committed the abuse, and that mother did not know about it. No abuse of discretion occurred when the circuit court made the latter findings. When arguing that a judgment is against the weight of the evidence, appellant’s burden includes showing how the evidence apparently supporting a finding does not really, in the context of the entire record, support that finding; failure to include that analysis dooms the argument.  Rule provides that an amended judgment is subject to the same motions as an original judgment, including a motion to amend when the judgment omits findings of fact; so, failure to file a motion to amend based on omitted findings waives that error. Appellate courts presume that circuit courts rely on admissible evidence only, and appellant has the burden to show otherwise, which appellant did not do. Judgment denying termination of parental rights affirmed.   
In the Interest of: A.M.R., R.H.H. III, and H.H. Juvenile Officer and Guardian Ad Litem vs. J.M.  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85850 and WD85858

No appeal from consent judgment  
Statutes provide the right of appeal a final judgment to a party aggrieved by the judgment. A party is not aggrieved by a judgment to which they consented. A consent judgment is the circuit court’s recital of the parties’ settlement agreement and not a ruling on the merits. Any judgment is subject to a set-aside for fraud, but appellant does not allege fraud, and an appellate court will not consider matters outside the record. Dismissed.  
Sophia D. Chatman, Appellant, v. Thomas Chatman, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111310

Juvenile

Totality of circumstances showed knowledge  
When appellant challenges the sufficiency of the evidence, the issue is whether the evidence supported the judgment, not whether the evidence supported the appellant’s allegations. Juvenile division based its judgments of jurisdiction and disposition on events that, if juvenile were an adult, would constitute criminal offenses. Flight from police is not, alone, conclusive evidence of guilt but supports an inference of guilt with the totality of circumstances. On charges of tampering with a vehicle and resisting arrest by flight, the circumstances included a police pursuit of the car in which juvenile was a passenger ending only when spike strips flattened a tire, and juvenile’s statement that he did not know who owned that car. Those circumstances supported a finding that juvenile knew that he was in someone else’s car without permission and should have known—at least—that police were pursuing him.   
In the Interest of: D.L.T.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110966

Mental Health

Defective pleading remedied  
Statutes provide that a petition to extend an involuntary commitment “shall” include a prescribed verification and require an expedited hearing. But failure to comply with those requirements does not rob the circuit court of subject matter jurisdiction because the statutes are not source of circuit court subject matter jurisdiction, the Missouri Constitution is, and it vests circuit courts with plenary jurisdiction over all actions civil or criminal. Statutes governing pleadings constitute conditions on which circuit courts may exercise their authority. Appellant did not challenge that authority, in circuit court or on appeal, and an appellate court does not hear an unpreserved challenge. But substantial liberty interests support addressing appellant’s argument. The verification requirement is merely director because the statute provides no remedy, the expedited hearing requirement leaves no time for an amended pleading, and the circuit court heard evidence constituting the required verification. Therefore, the circuit court did not abuse its discretion in denying appellant’s motion to dismiss.   
In The Matter of L.T.  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD86405

Post-Conviction

Conviction on greater offense does not negate prejudice  
In a claim for post-conviction relief based on ineffective assistance of counsel, the elements are substandard performance and resulting prejudice. Unless trial counsel pursues an all-or-nothing strategy, competent trial counsel offers instructions for all lesser included offenses supported by the evidence. On a charge of first-degree domestic violence lesser included offenses were domestic violence in the second, third, and fourth degrees. Degrees of domestic violence differ as to the element of mental state and injury: unreasonable ignorance and physical injury for the fourth degree and conscious disregard and serious physical injury for the second degree. Trial counsel should have offered an instruction for the fourth degree and failed to do so. Prejudice resulted, despite the jury’s finding of guilt under the second degree, because the jury need not acquit on a greater offense before finding guilt on a lesser offense. Judgment denying relief reversed and new trial ordered.   
Shawn H. Flaherty vs. State of Missouri  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85542

Probate

No record, no appeal  
In an action for guardianship and conservatorship, the circuit court’s judgment relied in part on an earlier emergency hearing, but the transcript from that emergency hearing is absent from the record on appeal. “Here, it is apparent no record of the first hearing exists to file with this Court.” Reversed and remanded to make a record.   
In the Matter of: Timothy Lee Isreal, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111010

Utilities

Variance from tariff reversed  
Statutes provide that any water company must operate subject to published tariffs that the Public Service Commission may approve, reject, or change. But no provision in any tariff is subject to change unless that provision includes a mechanism for change. “A general provision, not contained in the rule under which the Commission purports to grant a variance, is not enough to give the Commission authority to grant an exception.” The Commission’s decision granting a variance to a provision without a mechanism for change was unauthorized by law. The decision is reversed and remanded for a new decision.   
In the Matter of the Joint Application of Missouri-American Water Company and DCM Land, LLC, for a Variance from the Company's Tariff Provisions Regarding the Extension of Company Mains, Respondents, vs. Office of Public Counsel, Appellant.  
(Overview Summary)  
Supreme Court of Missouri - SC99978