Case summaries for Aug. 20 - Aug. 26, 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.
Using Wrong Arbitrator Voids Decision
Arbitrator’s power comes solely from contract’s delegation of authority to settle disputes. Contract provided arbitration only before one specified arbitrator, under that arbitrator’s rules, which barred circuit court from appointing any other arbitrator and the use of other arbitration rules. The other arbitrator therefore acted in excess of authority, for which Federal Arbitration Act allows vacatur, so Court of Appeals reverses circuit court’s order confirming award.
Car Credit, Inc. vs. Cathy L. Pitts
Missouri Court of Appeals, Western District - WD84054
Juvenile Considerations Inapplicable
Appellant sought post-conviction relief. As to appellant’s open guilty plea, the record refuted appellant’s allegation that autism made the plea anything less than knowing, voluntary, and intelligent. A juvenile’s life sentence must include consideration of appellant’s age, the development, and related circumstances; but appellant was not a juvenile, received a sentence of confinement for a term of years, and “the consecutive effect of the sentences does not constitute cruel and unusual punishment.”
CALEB Z. ECCHER, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36821
No Conviction Supported Sex Offender Registration
The Missouri Sex Offender Registration Act requires registration as a sex offender for specified offenses, which include kidnapping, but only if done with sexual motivation. No sexual motivation was alleged in charging instrument, argued by the State, submitted to the jury, nor found by jury; and circuit judge could not add it. Therefore, spoken ruling to register as a sex offender was error. But written judgment omitting any requirement to register as a sexual offender was correct and Court of Appeals affirms that judgment.
STATE OF MISSOURI, Respondent v. ANTHONY JAMAL SHEPHERD, Appellant
Missouri Court of Appeals, Southern District - SD36741
Continuing Authority Over Child Support Includes Enforcement Matters
Statutes provide circuit court with continuing authority over child support, including enforcement, and quashing a related garnishment. Uniform Child Custody Jurisdiction and Enforcement Act’s provisions, including provisions allowing circuit court to decline to exercise if it constitutes an inconvenient forum, apply to custody only and not to child support. Therefore, circuit court erred in dismissing appellant’s motion to quash garnishment. The Act also expressly allows enforcement of custody orders, so circuit court erred in dismissing appellant’s motion for family access. Rule governing written findings of fact and conclusions of law “puts the parties and the [circuit] court on notice that they will be required to address certain controverted facts, and the legal basis for claims or defenses, with some particularity” by requiring a request—at least spoken on the record—before the introduction of evidence. Appellant’s motion filed with the circuit clerk was not adequate notice.
Jennifer L. Schutter vs. Paul J. Seibold
Missouri Court of Appeals, Western District - WD84011
Owned-Vehicle Exclusion Limits Stacking of Uninsured Coverage
Declaration pages are not promises of coverages, they are merely summaries of coverage elsewhere provided. Automobile policies and motorcycle policy unambiguously limited uninsured motorist coverage, in an owned-vehicle exclusion, to the minimums required by Missouri Motor Vehicle Financial Responsibility Law. Summary judgment for insured reversed and remanded with instructions to enter judgment for insurer.
Courtney Jones vs. American Family Mutual Insurance Company, S.I.
Missouri Court of Appeals, Western District - WD84018
Statute of Limitation’s Continuing Care Exception Discussed
Statute of limitations on medical malpractice actions is subject to a doctrine of continuing care, which accounts for the duty to attend the patient as long as needed after treatment, and spares the patient “the impossible choice of either disturbing a course of treatment by initiating suit against a caregiver or losing a viable cause of action.” The continuing care doctrine tolls the time to file, pending post-operative care, for claims related to the initial surgery and not just claims related to the post-operative care; and against institutions for vicarious claims, and not just direct claims. The summary judgment record established the last visit for each of plaintiff’s hips at different times. Neither plaintiff’s vague recollection of a later visit, nor plaintiff’s own inconsistent statements, nor evidence showing complaints but not treatment, related to one hip did not raise a genuine dispute as to that material fact. As to the other hip, defendants did not negate that “the necessity that gave rise to the relationship” continued to a time within the statute of limitations. When an expert testified by deposition to the limited scope of his opinion, then testified by affidavit beyond that scope without reviewing further medical records, circuit court did not err in striking the affidavit.
Paul B. Tiemann and Deborah Tanner (Tiemann) vs. SSM Regional Health Services and Thomas V. Distefano, M.D.
Missouri Court of Appeals, Western District - WD83998
No Class Certification for Latent Injuries
The elements of class certification include the superiority of a class action over separate actions and a representative plaintiff typical of the class. Plaintiffs alleged latent illness and sought medical monitoring. Medical monitoring is not its own cause of action. Plaintiffs did not show superiority of a class action because of latent illnesses that might never develop. Plaintiffs did not proffer a typical plaintiff because the proffered representative had “all of the testing her expert would recommend” and present symptoms. A genuine factual dispute prevents summary judgment only if the fact in dispute is material.
MICHAEL MOORE, PAULA ROBERTSON, and NANCY SALZMAN, Appellants vs. SCROLL COMPRESSORS, LLC, and EMERSON ELECTRIC CO., Respondents
Missouri Court of Appeals, Southern District - SD36682
Appeal of Successive Motion Dismissed
Movant filed an initial motion a day late, waiving all relief. Movant filed later motions addressing the same conviction as the earlier motion, so the later motions were successive. Rule bars circuit court from hearing successive motions.
Jermaine Conner, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED109181
No Abuse of Process in Schlafly Trust Suit
The elements of abuse of process include misuse of process, which is an unlawful collateral purpose in filing the underlying action, distinguished from the use of an action for its intended purpose even when motivated by spite. Appellant alleged but raised no genuine dispute as to whether the underlying action had any purpose other than its stated contest to trust amendments. “[W]e do not infer improper use from evidence of an improper motive.”
Bruce S. Schlafly, Appellant, vs. Anne S. Cori, Respondent.
Missouri Court of Appeals, Eastern District - ED109327