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Case summaries for Aug. 28 - Sept. 3


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 | Civil | Criminal | Elections | Evidence | Family | Post-Conviction | Real Estate | Utilities


No Interlocutory Appeal Under Collateral Order Doctrine
Statutes determine jurisdiction in the Court of Appeals and generally restrict that jurisdiction to a final judgment. That does not usually include an order imposing sanctions because that order is still subject to change until final judgment. “[A]n order, however denominated, for monetary sanctions against an attorney—even one who no longer represents a party in the underlying litigation—is not a judgment,” because no such relief appeared as a claim in the petition, “and therefore, cannot be a “final judgment [.]” Federal courts hear appeals under the collateral order doctrine, but Missouri courts do not, and the Court of Appeals will not change that law.
Emily Riegel, et al., vs. Nicole Forsythe
(Overview Summary)
Missouri Court of Appeals, Western District - WD83131


Change of Venue Requires Notice
Rule requires motion for change of venue to include notice of when movant will present it to circuit court and, without that notice, the time to respond does not start running. Assuming that appellant showed that the criminal standard for showing ineffective counsel applies in a sexually violent predator action, appellant did not make that showing, because he did not show that any prejudice from the faulty motion occurred.
Missouri Court of Appeals, Southern District - SD36302


Video Presence for Sentencing Not Enough
Statute and rule provide that, when sentence may include imprisonment, defendant must be physically present for sentencing. When that does not occur, and defendant objects to video appearance, Court of Appeals remands for re-sentencing, but no change of judge is required without a motion.
State of Missouri vs. Keith B. Hudson
(Overview Summary)
Missouri Court of Appeals, Western District - WD83128

Warrant Valid on Inaccurate and Altered Application
Statutes did not require a warrant to draw driver’s blood, but constitutional provisions did, absent an exception to the warrant requirement. An appellate court determines whether the totality of the circumstances provided a substantial basis for the circuit court to issue the warrant when the warrant issued. “[W]hile the meaning of probable cause is a legal issue, whether probable cause exists in a particular case is a question of fact” subject to “great deference [.]” Drafting errors, when severed from the application, do not rob the application of a substantial basis. Later alterations to the application, though unauthorized by the circuit court, are irrelevant to the circuit court’s ruling.
Robin L. Schmidt, Respondent, vs. Director of Revenue, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108175


Amendments to Summary Statement Ordered for SJR 38
A voter may challenge a referendum’s summary for sufficiency and fairness. The need to expedite litigation of ballot issues justifies considering an argument not made in circuit court. Amendments ordered should not reach further than deficiencies found. A summary stating that an amendment will ban all lobbyist gifts is untrue, because it would allow gifts from certain lobbyists, making that representation insufficient and unfair. The summary for a reduction in campaign finance limits need not say how much or little the reduction is—vagueness is not inaccuracy. Summary on redistricting is insufficient and unfair because it fails to mention eliminating the Nonpartisan State Demographer. A summary describing a commission of gubernatorial appointees as “citizen-led” is inaccurate, especially when the appointees need not be citizens, and citizens need not lead the commission. Summary’s suggestion that the amendment will establish standards already in the Missouri Constitution “falsely implies that those criteria will only become effective if the amendment passes.” Court of Appeals sets forth replacement language, and orders that the descriptor “independent” be replaced with “governor-appointed.”
Barbara Pippens, John Bohney, Cheryl Hibbeler, Rebecca Shaw, Bob Minor, James Harmon, Gene Davison, and Pat McBride vs. John R.Ashcroft, in his official capacity as Missouri Secretary of State, Dave Schatz, in his official capacity as State Senator and President Pro Tem of the Senate, Elijah Haahr, in his official capacity as State Representative and Speaker of the House, and Daniel Hegeman, in his official capacity as State Senator and sponsor of Senate Resolution 38
(Overview Summary)
Missouri Court of Appeals, Western District - WD83962


Admission Substitutes for Evidence
A “judicial admission of fact ... serves as a substitute for evidence and dispenses with proof [.]” So no evidence was needed on that element of the State’s claim against appellant, and any ruling on entering such evidence into the record was not plain error.
Missouri Court of Appeals, Southern District - SD36280

Excluding Expert Testimony on Show-Up Identification Was Reversible Error
In any action, with exceptions inapplicable to the instant appeal, statute provides the foundation for entering expert evidence into the record. That statute is in derogation of the common law to the contrary, so the proffered evidence need not be indispensable to the jury, merely helpful. “In other words, the question is would the jury be better off with this information than without it.” The defense’s offer of proof did not exceed the facts in evidence. Expert evidence on factors rendering identifications was helpful because it helped determine whether a credible witness’s testimony was accurate, and scientifically reliable. Neither the defense’s cross-examination, nor the approved instruction on eyewitness testimony is substitute for admissible evidence. The testimony did not include an opinion on the credibility of a witness, was not cumulative with other methods of impeaching perception, and was the subject of the State’s cross-examination. Defendant suffered prejudice because “the likelihood that the [expert] testimony would have altered the outcome is simply too high to affirm this conviction.”
State of Missouri, Respondent, vs. Kane Carpenter, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98088


Appellant Must Show Prejudicial Error
In an action for dissolution of marriage, the circuit court’s division of property is within broad discretion, and presumed correct, subject to reversal “only where the division is so unduly favorable to one party that it constitutes an abuse of discretion.” Circuit court awarded appellant assets of $17,000 and debt of $11,000. Circuit court awarded respondent only one asset of indeterminate value, though assigned a value of $5,000 and debt in the amount of $12,800. On those facts, even if the circuit misapplied the law in finding that appellant dissipated assets, appellant did not show any prejudice.
Christine Ann Lollar, Appellant, vs. Richard Dwain Lollar, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC97984


Waiving Constitutional Protection Was Sound Strategy
Waiving a constitutional protection can be reasonable trial strategy. Instructing down was sound strategy. Defendant, requesting an instruction for a lesser included offense, had notice of that charge.
ROBERT J. TAYLOR, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36263

Real Estate

Declarations Require Attorney Fee Award
In an action to enforce covenants and conditions, incorporated homeowners association’s declarations unambiguously entitled the prevailing party to an award of attorney fees, but leaves the amount to judicial discretion. Remanded to circuit court to determine the “appropriate” amount of the award.
Arrowhead Lake Estates Homeowners Association, Inc. vs. Ajay Aggarwal and Megha Garg
(Overview Summary)
Missouri Court of Appeals, Western District - WD83019 and WD83049


ISRS Items Okay
Statutes allow public utility’s bill to include a surcharge for replacing infrastructure (“ISRS”), “to comply with state or federal safety requirements as replacements for existing facilities that have worn out or are in deteriorated condition [,]” subject to Public Service Commission authority. That authority carries with it, expertise to which reviewing courts defer. Deference is due when the Commission chooses a method for calculating how much of an infrastructure project’s cost qualifies for the surcharge. Cost may have one meaning for one statute, and another meaning for another statute, depending on the purposes of the statutes. Recent amendments to the ISRS statute, adopting appellant’s calculation, show that appellant’s calculation was not the only one allowed before the amendment. When appellant’s calculation used a standard irrelevant under the statute, the Commission did not err in choosing another party’s calculation, and was not required to use appellant’s calculation on amounts currently under appellate review. Court of Appeals rejects a challenge to costs not argued before the Commission.
In the Matter of the Application of Spire Missouri, Inc., to Change Its Infrastructure System Replacement Surcharge In Its Spire Missouri East Service Territory; In the Matter of the Application of Spire Missouri, Inc., to Change Its Infrastructure System Replacement Surcharge In Its Spire Missouri West Service Territory vs. Missouri Public Service Commission Missouri Office of Public Counsel
(Overview Summary)
Missouri Court of Appeals, Western District - WD83159 and WD83162