Case summaries for Aug. 25 - Aug. 31, 2023

Administrative | ADR | Appellate | Criminal | Elections | Employment Security | Post-Conviction | Real Estate | Workers' Compensation

Administrative

No moral turpitude in third DWI    
Statutes allow a licensing agency to discipline its licensee for committing any crime of moral turpitude. Determining cause for discipline generally happens in an action before the Administrative Hearing Commission, but statutes provide a specific exception from that procedure, upon receipt of certified records showing a finding of guilt. Appellant agency found respondent licensee guilty of driving while intoxicated for a third time, brought its own internal action, and imposed discipline. Circuit court reversed and remanded the action to the agency for dismissal. The Court of Appeal affirms the circuit court’s judgment because “DWI is not an offense involving moral turpitude [.]”   
Brenda L. Jackson vs. Missouri State Board of Nursing   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85431

ADR

No authority to sign agreement, no arbitration 
To compel arbitration requires an agreement to arbitrate. A long-term care facility filed a motion to stay litigation and compel arbitration of a resident’s action against the facility. In support, the facility relied on an arbitration agreement, on which “[spouse] signed his name on the signature line for ‘Other Persons Signing on behalf of the [resident] and in their Individual Capacity (please specify authority to sign)[.]’” The facility’s forms listed powers of attorney and guardianships as authority, but Spouse did not specify any authority, and no evidence showed that spouse had any authority. To show that resident was either estopped to deny, or was a third-party beneficiary of, the agreement required the facility to show that the resident gained some benefit from the arbitration agreement. But, since the facility’s forms expressly allowed admission without the agreement, the facility could show no such benefit. And third-party beneficiary status does not, alone, bind such beneficiary to arbitration.  
JOAN RISTER and FRED RISTER, Plaintiffs-Respondents v. NHC HEALTHCARE – OSAGE BEACH, LLC, d/b/a OSAGE BEACH REHABILITATION & HEALTHCARE CENTER, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37374

Appellate

Attorney fees awarded   
The appellate courts prefer to dispose of appeals on the merits but appellants’ briefs “are unintelligible and not readily deciphered [.]” Appellants’ points relied on fail to give notice of the ruling they challenge and the theory supporting reversal, giving instead abstract statements of law and evidentiary detail. A multifarious point preserves nothing for review. Appellants omitted a statement of how they preserved error, references to the record, and citations to authority. [Appellants] “have filed no less than four prior appeals in the course of their contentious litigation against their siblings and not one brief has so much as winked at [the rule governing briefs], much less bothered to comply with it.” Remanded to determine the attorney fees and expenses due respondent.   
Gerald Puetz, David Puetz, and Jeannette Puetz, Appellants, vs. Canice Timothy Rice, Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110934

Appellant’s brief preserved nothing for review   
Denial of a motion for new trial is not subject to appeal, but appellate courts construe such an appeal as seeking review of the final judgment. A point relied on that cites nine rulings is multifarious. Points relied on that challenge an instruction without identifying the challenged instruction, or offer no reason for reversal, preserve no error. Appellant’s statement of facts lacks references to the record and contains argument. Appellant’s defective briefing prevents ruling on the merits.    
VICKY FRANCO, Plaintiff-Appellant v. LESTER E. COX MEDICAL CENTERS, et al., Defendants-Respondents   
Missouri Court of Appeals, Southern District - SD37714

Criminal

Prohibition issues on failure to meet detainer deadline   
The Interstate Agreement on Detainers provides a procedure for the expeditious and orderly disposition of criminal charges among jurisdictions adopting the Agreement, which includes Missouri by statute. The State filed a detainer with a United States penitentiary to take custody of, and try, defendant on pending State charges. Defendant filed a request for disposition. The statutes require the request to include a certificate of inmate status, and defendant did not comply, but the State’s acceptance of custody waived that requirement. The statutes require circuit courts to prioritize detainer cases and set a deadline for their disposition, subject to good cause, which meant that the circuit court must take “affirmative steps necessary to ensure [that the] case was tried or disposed.” Defendant transitioned from retained counsel to appointed counsel, but no evidence showed any resulting delay. The circuit court set defendant’s trial for the day of the deadline, and empaneled juries for other non-detainer cases that day, but sua sponte continued the trial for lack of a jury, as the circuit court explained seven days later. “[T]he post hoc justifications for a continuance the circuit court proffered do not constitute ‘good cause.’” The circuit court reset the trial to a date agreed by defendant, but defendant agreed only after the circuit court determined not to dispose of the action on the initial trial date, and the circuit court sua sponte continued the reset date. Relator sought a writ of prohibition. Missouri Supreme Court makes permanent its writ of prohibition barring the circuit court for anything further in the action other than dismissal.    
State ex rel. Steven Wishom, Relator, vs. The Honorable Paula P. Bryant, Respondent.   
(Overview Summary)   
Supreme Court of Missouri - SC99949

Speedy trial factors discussed   
Statutes authorize peace officers, specifically including Highway Patrol, to execute a search warrant with the assistance of other persons. Constitutions of the United States and Missouri provide for a speedy trial in criminal actions. Eight years between indictment and the start of trial is presumptively prejudicial, but vacillations in the assertion of the right and delays that defendant caused weigh heavily against the defense, while no prejudice from the delay appears. Better preparation for the State does not equal impairment to the defense. A motion in limine does not preserve an objection to evidence because only an objection made at trial preserves error in the admission of evidence. No plain error occurred when the circuit court admitted into evidence a series of photographs that included the logo of a motorcycle club because nothing associated the club with criminal activities.     
State of Missouri, Respondent, vs. Melvin J. Scherrer, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110639

Charges’ allegations of attempt were sufficient   
Rule requires a criminal pleading to allege facts that constitute the elements of the offense charged. On a charge of attempted sexual assault, the elements include a purpose of, and a substantial step toward committing, the attempted offense. But the description of the attempt need not include a description of the elements of the attempted offense and a citation to the attempted offense is sufficient. “An information charging attempt is sufficient even if it fails to allege an attempt to commit or perform each element of the completed crime.”   
State of Missouri vs. Andrew P. Minnick   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85943

Domestic victim explained
The elements of domestic assault in the first degree include a domestic victim, which includes “any person who is or has been in a continuing social relationship of a romantic or intimate nature with the victim [.]” That includes a past irregular relationship limited to “occasionally engag[ing] in sexual relations.” Conviction of that offense supported a conviction for armed criminal action.
STATE OF MISSOURI, Plaintiff-Respondent v. CHRISTOPHER N. JOHNSON, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37780

Propensity evidence okay
“Propensity evidence is evidence of uncharged crimes, wrongs, or acts used to establish that defendant has a natural tendency to commit the crime charged.” Propensity evidence is generally inadmissible, except as to sexual offenses against children on a foundation as provided by the Missouri Constitution, which includes legal relevance. The propensity evidence was “highly” probative in that the past and current victims were similar, no physical evidence was available, and defendant admitted its truth. That admission diminishes prejudice, and the conduct of counsel did nothing to enhance it. Remanded to correct an error in the written sentence in conformance with the sentence announced in open court. 
STATE OF MISSOURI, Respondent v. JERRY M. PIERCE, Appellant
Missouri Court of Appeals, Southern District - SD37577

Spousal privilege inapplicable to victim tampering 
The elements of victim tampering include an attempt to dissuade victim from assisting in the prosecution of the charge against him. That element had support in a jailhouse recording, in which defendant offered victim $500 to “drop charges.” Victim’s invocation of spousal privilege, as provided by constitution and statute, does not change the result because it does not negate defendant’s attempt. Also, spousal privilege is limited to testimony and victim tampering is not. 
STATE OF MISSOURI, Plaintiff-Respondent vs. JOHN MARTIN HAMILTON, JR., Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37508

Elections

Timing for sample initiative petitions explained   
The elements of a claim for a writ of mandamus include a clear and unequivocal right. The Missouri Constitution provides that the Secretary of State must process sample initiative petitions “during the election cycle for which they will be placed on the ballot [,]” which starts the day after one general election, but no later than six months before the next general election. Therefore, a sample initiative petition filed before the general election of November 2022 was too early for the general election of November 2024. That timing negated any right to have appellant’s sample initiative petition processed and the circuit court did not err in denying appellant’s petition for mandamus. The circuit court’s denial of a permanent writ, after the issuance of a preliminary writ, is subject to appeal.    
State of Missouri, Ex Rel., Jeffrey K. Basinger vs. John R. Ashcroft in his official capacity as Missouri Secretary of State, Et Al.   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85857

Employment Security

Only the decision made can be the decision appealed   
The Labor and Industrial Relations Commission denied claimant’s petition for review of the claim as untimely and did not decide the merits of the claim. The merits of the claim are the subject of claimant’s appeal from the Commission to the Court of Appeals. But the Court of Appeals cannot review the merits because the Commission did not rule on the merits. Claimant does not challenge the dismissal of his petition for review. Appeal dismissed.    
James F. Herrmann vs. Division of Employment Security   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85823

Post-Conviction

Video appearance waived right to be present   
A guilty plea waives all non-jurisdictional objections up to that point. Jurisdictional requirements for accepting a guilty plea do not include defendant’s physical presence at the plea hearing, and movant waived the right to be physically present at the plea hearing when defendant consented to a video appearance. A guilty plea must be knowing, voluntary, and intelligent; and such is not the case when defendant is reasonably mistaken about the sentence possible, but the record refutes any reasonable mistake. As to whether the availability of deposition transcripts affected the guilty plea, the circuit court found credible the testimony that the transcripts were irrelevant to defendant, and the Court of Appeals is bound by that determination.    
Jabyn Micheaux vs. State of Missouri   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85462

Real Estate

Familial relations suggest permissive use, negate hostile possession    
In an appeal based on the weight of the evidence, an appellant’s analysis must address all the evidence that favors the ruling challenged, otherwise “[a]ppellants act at their own peril and jeopardize their claim [,]" but appellate courts may overlook that failing to reach discernable merits. In an action to quiet title on a theory of adverse possession, the elements include possession that is “hostile, that is, under a claim of right [.]” Evidence negating hostile possession, and showing permissive use of the disputed land, included a familial relationship, which raises the bar for the purported adverse possessor; a history of permissive shared use among family; and other parties’ use of appellants’ improvements on the disputed tract.     
Jonathan Lukefahr, ex ux. Appellants, vs. Carol Taylor, et ux., Respondents.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110773

Denial of non-use variance affirmed   
Applicant sought a variance from the standards governing construction of a drive-through window for a medical marijuana dispensary, and the county zoning board denied that application. Statutes provide that the standard for granting a non-use variance from a zoning ordinance is practical difficulties. Practical difficulties relate to a characteristic of property peculiar to the property, not common to the zoned area, in which the zoning ordinance disables the property from a permitted use. Substantial and competent evidence on the record showed that a drive-through was unnecessary for a medical marijuana dispensary. The dispensary’s clientele included persons with mobility issues but that was a mere inconvenience, and the property’s irregular shape was common, and all those facts were known to applicant when it bought the property. The parties’ use of “hardship” in the proceeding does not change that result. Statutes provide that a board decision in writing is optional, and the board’s findings of fact are sufficient for judicial review, in that they appear in a transcript of the board’s hearing. The Missouri Constitution upholds zoning board decisions supported by substantial and competent evidence on the record, so the Court of Appeals affirms the decision.   
State of Missouri ex rel. Organic Remedies Mo. Inc., Appellant, vs. Board of Zoning Adjustment of St. Louis County, Missouri, Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED111005

Workers’ Compensation

Business records show medical bills paid, no basis for attorney fee   
Statutes governing contested case hearings provide for admission into evidence of respondents’ business records—or copies—in derogation of the rule against hearsay “without the necessity of identifying, locating, and producing as witnesses the individuals who made each entry in the regular course of business.” Those exhibits showed that employer had paid claimant’s medical expenses two years before hearing and was admissible as a business record. That finding supported the conclusion that employer had no further liability for claimant’s medical bills and placed no burden on claimant to show otherwise. Statutes allow a “fair and reasonable” attorney fees award. The Labor and Industrial Relations Commission did not err in calculating that award to omit the medical bills paid without help of claimant’s counsel’s and including only the award for permanent partial disability and disfigurement. The Commission did not err in stating that, had claimant’s counsel found employer’s proof of payment untrustworthy when claimant’s counsel received them, claimant’s counsel could have checked with the providers; that claimant’s counsel should have told claimant that the bills were paid, and that most of claimant counsel’s work to get a percentage of the medical bills already paid was “unnecessary.” A point relied on that does not give notice of appellant’s argument, and requires speculation to make a ruling, is subject to dismissal.    
Brooklyn Roe vs. Darden Restaurants, INC.   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD86109

Second Injury Fund pays bills of uninsured employer’s employee   
Enforcement of a workers’ compensation award is by judgment of the circuit court in an ancillary action. Disputes as to the amount due do not constitute a collateral attack on the judgment. “[T]he preferred means to collect money clearly owed by the [S]tate is mandamus.” The ancillary judgment must conform to the award. The award required the Second Injury Fund to pay claimant’s medical bills, as the statutes direct when claimant’s employer is uninsured, and released claimant from any liability for those bills. The Fund established beyond genuine dispute that it had paid those amounts. Therefore, the circuit court did not err in denying petitioner’s writ of mandamus to pay those amounts to claimant. The petition also sought mandamus to pay claimant’s attorney fee, but the Fund established beyond genuine dispute that it had already paid that amount, so the circuit court erred in granting mandamus for that purpose. Writ of mandamus quashed.    
State of Missouri, Ex Rel., Jeff Peters and John Newman vs. Scott Fitzpatrick, Treasurer, State of Missouri and Colleen Joern Vetter, Director of the Missouri Division of Workers' Compensation   
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85719 and WD85777