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Case summaries for Aug. 27 - Sept. 2, 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.

Attorneys | Civil | Criminal | Family | Orders of Protection | Post-Conviction | Workers' Compensation


Scope of Attorney/Client Privilege Discussed
The filing of an action for negligence against insured, and insurer’s control over the claim, create a fiduciary duty in insurer to insured. The possibility of a verdict in excess of policy limits caused insurer to suspect that insured was guilty of a bad faith refusal to settle. Insurer’s bad faith counsel, also participated in insured’s defense in the negligence action and so became, at least in part, insured’s negligence counsel. “Thus, it would appear that to the extent [insurer’s bad faith counsel] was acting as [insured’s negligence counsel, insured] should be entitled to the file generated in that connection because “[t]he client’s files belong to the client, not to the attorney representing the client.” Therefore, matters outside bad faith counsel’s representation in the bad faith claim may be subject to discovery by insured, unless protected by immunities for confidential communications or work product. Privileged communications include “any professionally-oriented communication between attorney and client” “made in order to secure legal advice [,]” whether made in anticipation of litigation or not. Work product includes matters prepared for litigation, intangible or tangible. Only tangible work product is discoverable, and only on a showing of substantial need and undue hardship to obtain the equivalent. Discovery orders in excess of authority are subject to extraordinary remedies by writ: when sustaining an objection, by writ of mandamus; when requiring production, by prohibition. Circuit court erred in quashing subpoena for matters in the hands of bad faith counsel, so Court of Appeals remands with directions to review documents in camera, by special master if necessary.
State of Missouri ex rel. Kilroy Was Here, LLC, et al., Relators, vs. The Honorable Joan L. Moriarty, Circuit Judge, Twenty-Second Circuit Court of Saint Louis, Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109351


In Forma Pauperis Status Continues
Permission to proceed in forma pauperis in small claims division carries through all succeeding tribunals. Judgment from small claims division is subject to review de novo in circuit court. Filing for trial de novo prevents small claims judgment from becoming final. Circuit court cannot reject such filing for lack of filing fee or motion to file in forma pauperis, and circuit court erred in doing so. Circuit court’s judgment of dismissal, even when designated as without prejudice, is final when the judgment shows that filing another petition in circuit court would be futile. Circuit court’s judgment is subject to appeal in Court of Appeals. Rules deem a premature appeal as filed when the judgment is ripe for appeal. 
George Fuller vs. Cindy Griffith, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83552


No Intellectual Disability Shown to Bar Death Penalty
Successive petitions in habeas corpus are possible but habeas corpus does address issues subject to relief on direct appeal or post-conviction relief. Intellectual disability does not constitute actual innocence. The Supreme Court acts as factfinder. Constitutional provisions bar cruel and unusual punishment, which includes execution of intellectually disabled persons, as shown by psychometric standards. Testimony of petitioner’s family, friends, and lawyers is likely biased. Petitioner’s ability “to plan, strategize, and problem solve” for robbery and murders, and the ability to communicate the grounds for his decisions,  refute allegations of intellectual disability. Allegations of fetal alcohol symptom unconnected to adaptive functioning, and current assessment of adaptive functioning are unpersuasive as to petitioner’s adaptive functioning 27 years ago. Substandard academic history does not show intellectual disability. Evidence that petitioner could hold employment and chose not to, and repeatedly offended because of drug addiction, weigh against intellectual disability. Petitioner did not show that a method of execution other than the standard was necessary to avoid cruel and unusual punishment, nor allege a readily implementable and feasible alternative. Writ denied.
State ex rel. Ernest Johnson, Petitioner, vs. Paul Blair, Warden of Potosi Correctional Center, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC99176

Warrant for Cell Phone Not Okay
A warrant to search for, and seize, evidence of a crime in a cell phone at owner’s address did not support a seizure of the cell phone brought to sheriff’s office. Seizing and searching that evidence at a sheriff’s office was outside the warrant’s authority. Statute allowing execution of a warrant outside territorial jurisdiction does not apply. The State did not show a good faith attempt to comply with the warrant. “[I]t is not objectively reasonable for an officer to search beyond the scope of a warrant.” Other grounds for denying a motion to suppress, not raised on circuit court, are waived. Circuit court did not err in excluding evidence resulting from the search.
State of Missouri, Appellant, vs. James Christopher Bales, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98376

Petition for Removal from Registry Rejected
The rule of lenity applies only to penal statutes and only when, after exhausting all other canons of construction, the statute remains ambiguous. A statute is ambiguous when a current dispute over the statute’s meaning finds no resolution in the statute’s plain language. The plain language of statutes governing sex offender registration unambiguously require registration as a Tier III offender, for anyone who pleads guilty to endangering the welfare of a child in the first degree, when the offense is sexual in nature. The offense’s classification as a misdemeanor, and policy arguments supporting a different result, do not alter the statutes’ plain language.
J.B. vs. Paul C. Vescovo, III, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD84010

Offense Was Included But Not Lesser
When only a subset of the facts necessary to prove a greater offense constitutes proof of a lesser offense, the lesser offense is a lesser included offense. When the same set of facts proves more than one offense, the offenses are alternative—or parallel—included offenses. The set of facts necessary to show first-degree sodomy included contact, and did not require penetration, the same as first-degree sexual abuse. Those offenses were therefore alternative included offenses, and which to charge was within the prosecutor’s discretion, so the circuit court did not err in failing to consider the offense not charged.  
State of Missouri vs. Steven M. Burkhalter
(Overview Summary)
Missouri Court of Appeals, Western District - WD82489

Spoken Sentence Prevails
Appellant challenged the denial of a continuance, but the record shows that the circuit court granted the continuance, so the motion was not subject to any adverse ruling for appellant to challenge on appeal. When sentence as recorded in judgment materially differs from sentence as spoken in court, the spoken sentence prevails, and circuit court must correct the written judgment. Sentences of 99 years and sentences for life “are materially different because, among other things, they have a different effect in determining parole eligibility dates.” Remanded for correction nunc pro tunc.
STATE OF MISSOURI, Plaintiff-Respondent v. CHESTER WILLIAM FEWINS, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36923

Restraints Not Visible
“[A]n essential state interest—such as the interest in courtroom security—specific to the defendant on trial” supports use of restraints on defendant” and defendant did not show that any juror saw the restraints, so defendant did not show that circuit court abused its discretion in denying a mistrial for destroying the presumption of innocence. No plain error occurred when circuit court admitted evidence of defendant’s earlier acts of personal violence and property damage against victim, because those incidents showed defendant’s intent and motive.
STATE OF MISSOURI, Plaintiff-Respondent vs. JORDAN BUSH, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36727


Judgment Final Despite Deferred Issues
Settlement on distribution of business income pendente lite need not use the term “net” to express a division of proceeds after expenses. On allegations of squandering trust funds, circuit court’s “diligent efforts to wade through” testimony and voluminous bank and casino records supported its findings. The parties stipulated to the deferral to probate division, so circuit court erred in including squandered funds in marital estate. In dividing proceeds from sale of marital residence, circuit court’s mathematical error was more than de minimis, and constituted an abuse of discretion. Tax consequences are relevant to property division, but the party claiming error must make a record and preserve error. The circuit court’s assessment of the parties’ equivalent marital misconduct supported its division of marital property. Contradictions between judgment’s decretal portions and recitals resolve in favor of decree, so circuit court must amend recitals in attached exhibit to conform with decree. Appellant showed no error in circuit court’s findings as to maintenance including eligibility and amount. Prayer for temporary maintenance allows an award of retroactive maintenance. Circuit court may order retroactive child support as far back as the date of the filing of the petition, but may also set any closer date supported by the record. Taxable costs include a trial transcript. Evidence of record and expertise of circuit court supported an award of attorney fees. Circuit court’s judgment disposed of all claims as to all parties in the dissolution action, and “correctly and reasonably decided to defer to the probate division” related probate matters. Circuit court lost authority over the action 90 days after filing of post-judgment motions and, after that date, any rulings on those motions were null. Point relied on, challenging one ruling under more than one standard, was multifarious and preserved no error for review.
Michael J. Barbieri, Respondent/Cross-Appellant, vs. Jessica A. Barbieri, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108457

Orders of Protection

Insufficient Evidence of Unwanted Conduct
Failure to object to petition for lack of verification or signature waives the defect and judgment after hearing cures the defect. In respondent’s action for an order against stalking, the elements included unwanted conduct and alarm. Bad language alone does not support a finding of unwanted conduct. Testimony about feeling unsafe and very afraid does not support a finding of fear of physical harm, when plaintiff’s testimony shows that an ex parte order has halted the alleged conduct.
R.K. vs. John M. Kelly
(Overview Summary)
Missouri Court of Appeals, Western District - WD84037


No Relief When Direct Appeal Possible
Post-conviction relief almost never includes any matter subject to direct appeal. Direct appeal addresses a sentence passed in retaliation for an exercise of defendant’s rights. The motion claimed that movant’s sentence was retaliatory, so the Court of Appeals affirms the judgment denying relief.
NATHAN HILLIARD, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36881

No Prejudice Shown
Trial counsel’s failure to object to enhanced sentencing under one statute did not prejudice movant because movant was also subject to enhanced sentencing under another statute.
MICHAEL D. BURNS, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36919

Evidence Weighed Against Relief
Motion claimed ineffective assistance of counsel, but when the judgment on the motion and the judgment in the criminal action come from the same circuit court, findings of fact on the motion “carry special weight [.]” During the State’s case in chief, the circuit court explained why it excused a juror and trial counsel did not object, but movant showed neither the absence of a strategic basis for that decision, nor any resulting prejudice. As to the guilt phase, trial counsel did not call a neuropsychologist to testify as to movant’s methamphetamine addiction, but movant did not show how that evidence would have helped movant’s claim of self-defense. As to movant’s sentencing phase, movant failed to show that calling a neuropsychologist would have made any difference, given movant’s lengthy and extensive criminal history.
BRIAN SHAWN JONES, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36915

Record Refutes Allegations
Circuit court’s “intensive and thorough investigation” established that movant’s need for medical treatment was not his reason for pleading guilty, and that his guilty plea was based on actual guilt.
SHAWN HENRY SCRIVENS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36905

Workers’ Compensation

Commission Cannot Reject Uncontroverted Medical Evidence
Even if the claimant offers evidence supporting each element of a claim for Second Injury Fund liability, the Fund may prevail without presenting any evidence, because the Labor and Industrial Relations Commission may disbelieve that evidence. And when expert medical evidence supports more than one finding of fact, the Commission may choose the finding that disfavors the claim. But when the Commission expressly determines as credible the expert medical evidence establishing causation between claimant’s work and claimant’s injury, but finds the facts against causation, it has substituted its own lay opinion on causation, which does not constitute substantial and competent evidence to support an award of no Fund liability. Reversed and remanded to enter an award and make any further determinations needed.
Robert March vs. Treasurer of the State of Missouri - Custodian of the Second Injury Fund
(Overview Summary)
Missouri Court of Appeals, Western District - WD84377