Case summaries for Sept. 3 - Sept. 9, 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.
No Service, No Default
Sheriff’s return of service constituted prima facie evidence of service on the person named on the form, but the form did not correctly describe that person, so the prima facie evidence did not show service. Affidavits contesting whether the person named was in charge of a corporation’s business office did not result in an amendment to the return of service. The return remained deficient, so no service occurred and no personal jurisdiction attached, and the ensuing million-dollar default judgment was void.
Samuel Marti, Appellant, v. Concrete Coring Company of North America, Respondent.
Missouri Court of Appeals, Eastern District - ED109282
Inference of Past Sale Shows Intent to Distribute
Waiver of counsel must include circuit court’s admonitions on the risks of pro se criminal practice and, without a record of such colloquy, Court of Appeals reverses defendant’s conviction for a new trial. Double jeopardy requires acquittal when evidence was insufficient so, even remanding for retrial on other grounds, Court of Appeals reviews the sufficiency of the evidence. Evidence raising an inference of defendant’s intent to distribute methamphetamine included possession of drug dealing paraphernalia and unusual amounts of cash; that defendant possessed only residue when caught did not negate that intent.
State of Missouri vs. Matthew Jay Schurle
Missouri Court of Appeals, Western District - WD83914
Attorney General May Participate in Action to Release Strickland
Statute creates an action to “vacate or set aside” a criminal conviction for innocence or erroneous conviction. Statute provides venue in the circuit court where the conviction occurred, provides standing in the prosecuting attorney to seek such relief by motion, and provides that the attorney general shall have notice and may "appear, question witnesses, and make arguments in a hearing o[n] such a motion." Those words signify full, not limited, participation in the action. Such participation implies the opportunity to prepare for hearing, so the Court of Appeals issues its writ of prohibition barring a hearing on the motion until the attorney general has had an adequate opportunity to prepare.
State of Missouri ex rel., Eric Schmitt vs. The Honorable Kevin Harrell, Circuit Judge of Jackson County
Missouri Court of Appeals, Western District - WD84772
No Severance Needed in Multiple Incident Case
Rule and statute liberally allow joinder on allegations of similar techniques in committing offenses, and a motion for severance that set forth only conclusory allegations of prejudice did not describe how prejudice would result. “[T]he general allegation that the jury would likely consider evidence of guilt on one charge as evidence of guilt on another charge does not meet the requirement of a particularized showing of substantial prejudice.” Denying severance causes no prejudice when “the jury is properly instructed to return separate verdicts for each offense charged” and the evidence is “straightforward and simple.” Evidence supported an instruction to determine whether defendant enticed victim by inviting victim to spend the night with defendant.
State of Missouri, Respondent, vs. Daniel B. Hallmark, Appellant.
Missouri Court of Appeals, Eastern District - ED108366
Plaintiff’s Verdict on Retaliation and Hostile Work Environment Affirmed
Warden directed subordinates “to figure out how to stop employees from using Family and Medical Leave Act (FMLA) leave.” Plaintiff was concerned that the directive constituted unlawful disability discrimination, reported the directive to her superiors, and received discipline. Whether that directive was unlawful or not, Human Rights Act protected plaintiff’s report from retaliation as long as plaintiff made the report with “reasonable good faith.” Defendant’s agreement with, or failure to object to, an instruction waives error. Defendant waived error in awarding attorney fees, and applying the lodestar calculation and a multiplier, by failing to raise the same issue on appeal as it did in circuit court. Remanded to determine attorney fees on appeal.
Shelley Gray vs. Missouri Department of Corrections
Missouri Court of Appeals, Western District - WD83739
Temporary Child Support Order Not Subject to Appeal
In any action, a motion pendente lite constitutes a separate action that results in a judgment, which might be subject to appeal like any other judgment. Any other judgment must be a final judgment or subject to interlocutory appeal. No interlocutory appeal for a temporary child support order is possible under any rule or statute, and the order was not denominated as a judgment, so no appeal is possible. Besides, final judgment has issued in the dissolution action, which is also under appeal, so appeal of the temporary order is moot.
Hannah Waldenville vs. Scott Waldenville
Missouri Court of Appeals, Western District - WD84211
Pro Se Practice Okay in SVP Case
While appellant must generally raise a constitutional objection at the first opportunity, that will not happen when appellant waived counsel, so the Court of Appeals deems the issue preserved. Waiver of counsel in an action for confinement of a sexually violent predator requires the circuit court to address competency to waive counsel. The record supports a finding that appellant’s waiver of counsel was timely, and was knowing and intelligent. Jurors’ concerns that appellant might retaliate against them would have been no less had appellant proceeded through counsel, so those concerns did not demonstrate incompetence to proceed pro se.
In the Matter of the Care and Treatment of Pete Wright vs. State of Missouri
Missouri Court of Appeals, Western District - WD82895
Detainer Challenge Would Have Been Meritless
Movant did not show that trial counsel was ineffective for deciding to make no challenge under the Uniform Disposition of Detainers Act. The Act remedies Speedy Trial Clause violations, which movant did not allege. The Act also tolls the time to dispose of detainers for delays attributable to defendant, including defendant’s motions for continuance and dismissal. Movant’s motions delayed the disposition of his detainers, rendering meritless any motion to dismiss the charges underlying those detainers, so the decision to file no such motion did not show that trial counsel was ineffective.
Scott W. Eckert vs. State of Missouri
Missouri Court of Appeals, Western District - WD83749
Lot Consolidation Applied
The law presumes the issuance of the permit was correct, but the party appealing the issuance of the permit to the Board overcame that presumption. Amendment to zoning ordinances, in harmony with other provisions, provided that adjoining lots of one owner “were deemed consolidated on the effective date of the lot consolidation provision [.]” The courts apply the provision as written and without construction. Ordinances set forth uses allowed on a consolidated lot, including a single-family residence, but only if the lot conforms to the requirements for a single-family residence. Splitting off one of three consolidated lots diminished compliance with the code and constituted grounds to deny a construction permit. A decision of the city Board of Zoning Adjustment is subject to review in circuit court and again in the Court of Appeals. Court of Appeals reviews appellant’s multifarious point ex gratia.
State of Missouri Ex Rel. Kathleen M. Vandenboom, Trustee of the Kathleen M. Vandenboom Revocable Trust U/T/I Dated May 5, 2009 vs. The Board of Zoning Adjustment of the City of Kansas City, Missouri, et al., and Matt Sterling and Lauren Thompson
Missouri Court of Appeals, Western District - WD84013
Rental Management Is Not a Development Right
Uniform Condominium Act requires declarations to set forth any reservation of development rights. Development rights do not include short-term rental of units already constructed and owned. Declaratory judgment on that issue was not final in that it did not dispose of injunctive relief, but disposed of a judicial unit between the parties to the appeal, which supported the circuit court’s certification for appeal.
TERRY R. HAINES and ZELMA M. HAINES, Trustees of the Terry R. Haines and Zelma M. Haines Revocable Trust, et al., Plaintiffs CONNIE BURCH, JEFFREY FINNELL, and KATHRYN L. FINNELL, Appellants vs. BRANSON CABIN RENTALS, LLC, et al., Respondents
Missouri Court of Appeals, Southern District - SD36836
No Sovereign Immunity from Retaliatory Discharge Claim
Statutes governing workers’ compensation allow an action for employer’s retaliation against a claimant’s exercise of those rights, and that action is within the statutes’ waiver of sovereign immunity for political subdivisions, including defendant school district. School district’s motion for summary judgment established facts without genuine dispute, but did not entitle school district to a favorable judgment. Court of Appeals reverses circuit court’s summary judgment dismissing plaintiff’s action for retaliatory discharge.
Travis Poke vs. Independence School District
Missouri Court of Appeals, Western District - WD84198