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Case summaries for Aug. 18 - Aug. 24, 2023


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 | Elections | Evidence | Family | Post-Conviction | Utilities | Workers' Compensation


Points relied on must provide notice 
Appellate courts prefer to decide appeals on the merits of the appeal. To understand the merits of the appeal, the appellate court, and all parties to the appeal, must have notice of the rulings challenged and the bases for such challenge. For that reason, the rules of appellate procedure provide a template for points relied on. A point relied on that does not provide notice of appellant’s argument for reversal preserves nothing for appellate review. Such is the case with a point relied on that combines multiple rulings or multiple arguments. Appeal dismissed.  
ACWSTL, LLC d/b/a Advantaclean of West St. Louis County, Respondent, vs. Treisa Gladney, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111007


No public funds for campaigning, but no private action for enforcement 
Statute bars public officials from using public funds for “express advocacy” on any ballot issue or candidate. Public officials used public funds to publish written materials on a ballot issue. Plaintiffs filed a petition in circuit court to enforce the statute, and the circuit court did not err in dismissing the petition for failure to state a claim, because the materials did not constitute express advocacy. Even if they did, the statute explicitly delegates discretionary enforcement to specified government entities, is silent as to a private cause of action, and does not describe a protected class of persons, so no private cause of action exists. The circuit court did not err in making the dismissal with prejudice because petitioners did not show that any amendment could describe a claim. 
Thomas Sullivan, et al., Appellants, vs. City of University City, et al., Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111084


Exculpatory statement, proved false, becomes inculpatory evidence 
Appellant appealed his convictions for second-degree murder, armed criminal action, and unlawful use of a weapon, challenging the sufficiency of the evidence. An appellate court must “disregard any potentially innocent explanation of the evidence and instead view it in the light most favorable to the verdict.” Evidence supporting appellant’s convictions included possession of the murder weapon two hours before the killing, disposing of that weapon five days after the killing, and giving police a false alibi. “When proven false, exculpatory statements evidence a consciousness of guilt.” The evidence supported a planned robbery so, when the State argued that the robbery occurred, the circuit court did not plainly err in failing to sua sponte issue a corrective instruction.  
Missouri Court of Appeals, Southern District - SD37450

Bad acts evidence okay 
Evidence of uncharged offenses is inadmissible, subject to exceptions, which include presenting the jury with a full account and context of the events alleged. The State alleged that defendant fired a pistol at victim 12 times as she fled and defendant alleged self-defense. When self-defense is at issue, previous instances of abuse by defendant against victim are logically relevant to show intent, and appellate courts defer to a circuit court’s determination on legal relevance. No plain error occurred when circuit court restricted defendant’s communications for making hundreds of attempts to influence victim against testifying; defendant’s trial preparation was unaffected by the circuit court’s restrictions.  
State of Missouri vs. Jeffery E. Morgan 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84845


Termination of child guardianship affirmed 
Statutes institute a guardianship for a minor while parents are unable, unwilling, or unfit; and terminate the guardianship when ability, willingness, and fitness return. The burden of proof is with the petitioner, the standard of proof is the child’s best interest, and the quantum of proof is the preponderance of the evidence. Appellate courts defer to the circuit court’s credibility determinations, and do not re-weigh the evidence, which appellants’ challenges to the circuit court’s credibility determinations invite an appellate court to do. Arguing that the circuit court changed the burden of proof is arguing that the circuit court erroneously declared or applied the law, not that the circuit court abused its discretion. No prejudice resulted from the circuit court’s erroneous citations of law because those citations were not the bases of the circuit court’s rulings. 
In the Interest of: K.R. & C.R., Juveniles; J.P. & D.P. vs. S.R. & T.R. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85969

Grandparent intervention required 
Rule requires circuit court to grant a motion to intervene in an action when movant shows an interest in the action threatened and unprotected by current parties. In an action for step-parent adoption, grandparent showed that she had custody, the action would impair her custody, and no other party would protect her custody. An interlocutory order denying a motion to intervene merges into the final judgment and is therefore subject to appeal by the aggrieved movant. Decree of adoption reversed and remanded.  
In Re The Adoption of: K.L.C.B.; J.A.S.; and C.S. vs. D.L.B. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85559 


No abandonment inquiry for retained counsel 
Rules set a time to file an amended motion, which the circuit court has authority to grant only within the original time for filing the amended motion, so a late grant is ineffective. Retained counsel filed the amended motion late. No inquiry into abandonment by counsel was necessary because that inquiry is only for appointed counsel. But the late-filed amended motion was a nullity, so only the initial motion was before the circuit court, yet the circuit court ruled on the amended motion. Remanded to rule on the initial motion.  
Jordan Medlin, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110461


Amortization period okay 
The Commission set rates for a public utility in a general rate action that involved “forty-six main issues and more than 130 sub-issues [.]” When the Commission issued an amended decision, the Commission expressly replaced the original decision, and only the amended decision is subject to review. The amended decision’s departures from the original decision are irrelevant. Support for a challenged ruling is unaffected by support for appellant’s proposed alternative ruling, and appellate courts are less concerned with the Commission’s methods than with the effect on rates overall. “If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry under the [Public Service Commission] Act is at an end.” The Commission determined that retiring a coal-fired plant was prudent. Retirement required disposing of assets and liabilities. A liability to customers accumulated over four years, so the amended decision amortized it over four years; and an asset was twice the liability’s amount, so the Commission amortized it for twice as long. Those rulings had support in the record showing that amortized amounts relate to amortization periods, and collateral benefits included lower rates that avoided penalties. Appellant’s argument, that the Commission should coerce rates into the penalty zone, is contrary to the legislative purpose of penalties. Commission regulations provide expedited procedures for good cause, which appellant does not address, and as to which appellant showed no prejudice.  
IN the Matter of Evergy Metro, INC., d/b/a Evergy Missouri Metro's Request for Authority to Implement a General Rate Increase for Electric Service; Missouri Public Service Commission vs. Office of Public Counsel 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD86023

Workers’ Compensation

Non-qualifying injury irrelevant to qualifying injuries 
Generally, the Labor and Industrial Relations Commission finds the facts based on its determinations of credibility, but it is not free to disregard unchallenged medical testimony. The elements for a claim on the Second Injury Fund for permanent total disability include, in addition to a primary injury, a pre-existing injury that specifically qualifies as described by statute. Claimant presented evidence of five pre-existing injuries, of which four were pre-existing qualified injuries, and the Commission found that the claimant was permanently and totally disabled. But the Commission denied Fund liability because of the unqualified pre-existing injury.  Its finding in that regard had no support in the record because expert witnesses testified that the pre-existing qualified injuries caused claimant’s permanent total disability. That testimony was uncontradicted, unimpeached, and subject to no determination against its credibility. Only the Commission can make findings of fact, but no additional findings of fact are necessary, so the Court of Appeals reverses with directions to enter an award against the Fund.  
Larry Obermann, Appellant, vs. Treasurer of the State of Missouri as Custodian of the Second Injury Fund, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111004