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Case summaries for Aug. 21 - Aug. 27


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.

ADR | Appellate | Attorneys | Civil | Contract | Criminal | Evidence | Post-Conviction | Workers' Compensation


When Contract’s Existence at Issue, Specific Challenge to Delegation Clause Is Not Required
Statutes require circuit court to summarily determine and rule on any factual dispute about whether an arbitration agreement exists. Seller repossessed vehicle co-owned by plaintiff, and plaintiff filed an action for conversion against seller alleging that plaintiff never signed anything. Seller defended with a copy of a contract purportedly signed by plaintiff, that included an arbitration agreement, which included a delegation provision to submit the scope of arbitration to an arbitrator. When challenging an arbitration agreement, a challenge to the delegation provision requires specific pleading. But plaintiff’s challenge of the entire contract necessarily includes the arbitration agreement and its delegation provision. On seller’s motion to compel arbitration, circuit court was entitled to believe plaintiff’s evidence over seller’s and deny arbitration.
Glenn James Duncan vs. TitleMax of Missouri, Inc
(Overview Summary)
Missouri Court of Appeals, Western District - WD83330


Defective Point Requires Dismissal
Rule governing points relied on bars multifarious points and requires points to set forth the legal reasoning that shows error and why such error requires reversal. When ruling on an appeal requires the Court of Appeals to construct appellant’s argument, the Court of Appeals dismisses the appeal.
Michael Rauch vs. Corizon Medical, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83550

Deficient Appellant’s Brief Requires Dismissal
“Failure to comply with [briefing] rules preserves nothing for review and is a proper basis for the Court to dismiss an appeal.” Appellant’s jurisdictional statement fails to allege facts described in the constitutional provisions for Court of Appeals jurisdiction. “Appellant’s statement of facts is argumentative and unsupported by citation to the record on appeal,” and so does not constitute the required “immediate, accurate, complete, and unbiased understanding of the facts of the case.” Points relied on do not cite any ruling challenged and do not argue any legal error in challenged ruling. Argument section omits a standard of review and applicable authority.
Don F. Eberhardt, Appellant, vs. Aura M. Hagemann Eberhardt, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108419


Rules Are For Guidance, Not Damages
Rules of professional conduct guide attorneys in managing, and courts in supervising, the practice of law, including billing, but do not support a private right of action. So to allege a violation of a rule of professional conduct does not necessarily state a claim for relief. Appellant’s “argumentative and conclusory . . . statement of facts includes no citations to the relevant portion of the record [,]” point relied on that does not identify a challenged ruling or legal error requiring reversal, argument that does not describe preservation of error and standard of review and does not develop a point relied on.
Julie Landwehr, Appellant, vs. Chad Scott Hager, and Stange Law Firm, P.C., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108362


Petition Pleaded Malicious Prosecution
A motion to dismiss for failure to state a claim does not include matters outside the petition, so circuit court does not err in confining its ruling to the face of the petition. In an action for malicious prosecution of an underlying action, the elements include defendant having filed the underlying action with malicious intent. An action for malicious prosecution requires strict proof but rule not pleading of malice with particularity. Rule provides “that unlike fraud or mistake, ’[m]alice, intent, knowledge and any other condition of mind of a person may be averred generally [;]’” so allegations supporting an inference of malice are enough to state that element. The elements also include the absence of probable cause, for which pleading the ultimate fact is enough.
Michael O. Sebright, Appellant, vs. Shannon Mann, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108613

Notice to Wrong Address Insufficient
“[T]he cornerstone foundation of our legal system is due process and opportunity to be heard.” Rules require service of notice of trial setting before entry of judgment and, when that does not occur, the setting aside of a judgment. A record not showing that service occurred supports a finding that service did not occur. Circuit court erred in denying a motion to set aside judgment.
S.S., a Minor, by and through her Next Friend T.R.S., and T.R.S., Individually, Petitioners/Appellants, vs. K.E.J., Respondent/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108143


Repayment of Bonds Not Guaranteed
Financing agreement for development of land through issuance of bonds, among private and public entities, was “a simple contract case in which the terms of the contract, the Financing Agreement, are clear and unambiguous on its face.” Contract’s plain language provided no promise to pay by, and no liability for payment in, County—not even a conditional promise. “County did not promise to use best or reasonable efforts to pay, County did not promise to pay at all.” County appropriations for repayment of bonds were intended as back-up, not as promised payment on bonds, and were in the control of the County Commission, not the County. That conclusion has further support in the plain promises to pay and pledges of Transportation Development Districts. Missouri Constitution’s provisions allowing the County to make promises to pay are therefore inapplicable. Assignments of rights from public entities did not support assertion of equitable defenses against County. No payment was due, no calculation of payments due in any year was necessary. Rule setting the standard for summary judgment does not require an order granting summary judgment to recite the standard for summary judgment. Declaratory judgment for County affirmed.
Platte County, Missouri vs. UMB Bank, N.A., The Trustee of the Transportation Refunding an Improvement Bonds (Zona Rosa Retail Project) Series, 2007
(Overview Summary)
Missouri Court of Appeals, Western District - WD83232


Attempted Felony Theft Is a Stealing-Related Offense
On a charge of third offense stealing, the elements include prior stealing-related offenses. Stealing-related offenses include violations of criminal statutes against theft. Evidence of offenses including attempted felony theft satisfy that element. “To suggest that having the purpose to appropriate another’s property without consent or by means of deceit or coercion and taking a substantial step toward such criminal enterprise does not constitute a criminal violation 'related' to stealing is absurd and illogical [,]” so trial counsel and appellate counsel were not ineffective for deciding to make that argument.

Antonio D. West vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83013 and WD83014

Instructions for Multiple Acts Explained
In voir dire, parties must disclose facts to reveal bias without trying the case, so circuit court has wide discretion in restricting unnecessary detail. Missouri Constitution protects the right to a unanimous verdict in criminal actions, which is in danger if the State charges multiple acts in a single count and instructions allow jurors to “individually choose differing instances of the crime on which they base the conviction [.]” Jury instructions on multiple acts protect a unanimous verdict if they “specify a particular incident” on which to make findings by either “electing a particular criminal act with which to support the charge, to the exclusion of other criminal acts [;] or describing in the verdict director itself the separate criminal acts and instructing the jury it must unanimously agree upon at least one particular act’s occurrence.” Closing argument does not substitute for instructions, but “a remote and hypothetical possibility of prejudice” does not show plain error.
State of Missouri, Plaintiff/Respondent, v. Delvin Brown, Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107976


Inferences Support Conviction
“[A]n inference is a conclusion drawn by reason from facts established by proof; a deduction or conclusion from facts or propositions known to be true.” An inference that defendant was at the crime scene when the crime occurred had support in evidence that: appellant discussed committing a crime there, a witness took defendant there, gunshots occurred when defendant was there, and spent shell casings found there were consistent with distinctive loading of bullets in the magazine of defendant’s pistol. That pistol’s magazine was short of a full load by the same number fired at the crime scene, and appellant’s plan to commit a robbery at the crime scene, which supports an inference that defendant shot his pistol there four times. Those facts also support an inference that the pistol was the weapon used in the crime, as do statements to officers that were evasive, inconsistent, and untrue. Those statements, and flight from the region, show consciousness of guilt that supports an inference that defendant participated in the crime. Such inferences supported criminal convictions.
State of Missouri vs. Noah Abram Kelliker
(Overview Summary)
Missouri Court of Appeals, Western District - WD82681

Purported Signature Not Enough to Authenticate Document
To authenticate a document, a signature of the purported author’s name is insufficient, and other evidence of authenticity is necessary to enter the document into evidence, after which the jury can determine the weight due such facts. On charges of first-degree assault and armed criminal action, the elements include at least trying to cause serious physical harm to victim, which defendant can negate with evidence that defendant was unaware of victim’s presence. Defendant failed to do so.
State of Missouri, Respondent, vs. Muya Abdi, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107954


No Hearing Needed
Movant did not show coercion in plea counsel’s advice on the best plea offer the defense would receive, because movant did not show that plea counsel’s advice was wrong, and the possibility of a greater sentence after trial was real. Because the record refutes movant’s allegations, no evidentiary hearing was necessary.
Jason A. Kaesser vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83216

Effective Appellate Counsel Need Not Appeal Ruling on Cumulative Evidence
Movant did not show that trial counsel was ineffective for failing to review and redact video of evidence of uncharged crimes because trial counsel had a reasonable strategic reason for showing the whole video; and movant did not plead which evidence trial counsel should have redacted, and did not show that the jury ever saw that evidence, so movant showed no prejudice. Appellate counsel was not ineffective for appealing the circuit’s court ruling, denying an objection to testimony on gunshot residue, when “unobjected-to testimony” established the same facts.
Charles T. Thompson vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82893

Timely Filing from Treatment Programs Explained
The time for filing the initial motion started with delivery to the Department of Corrections’ physical custody, even when circuit court diverted movant to a treatment program and released movant on probation. To dismiss a motion filed late, counting the Department of Corrections’ physical custody of movant as the starting date, was not clearly erroneous. 
JOHNATHAN J. YOUNG, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36448

Workers’ Compensation

Claimant Must Show Adherence to Statutory Formulas
In appeals of the Labor and Industrial Relations Commission’s award, the analyses based on “[in]sufficient competent evidence” and “against the overwhelming weight of the evidence” are the same. As to whether an earlier disability combined with a later injury to make claimant unemployable, the Commission was entitled to reject opinions that departed from statutory standards. Claimant’s evidence did not follow statutory formulas for showing a synergistic effect of all injuries and disabilities.
Sterling Bennett, Appellant, vs. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108713