Case summaries for Sept. 8 - Sept. 14, 2023
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.
Deficiencies in appellant’s brief require dismissal
The statement of facts must exclude argument and include page references. Each point relied on must announce one theory of error, include a list of no more than four authorities, recite the standard of review, and show whether and how appellant preserved error. To preserve error generally requires an objection at trial. To preserve error in the exclusion of evidence for appellate court review, an offer of proof at trial is necessary to show how the ruling prejudiced appellant. Appellant’s failure to comply with those rules renders the merits of appellant’s appeal indiscernible, and appellate courts will not speculate.
MICHELLE L. KURZ, Respondent vs. RODD E. KURZ, Appellant
Missouri Court of Appeals, Southern District - SD37918
Appeal from summary judgment limited to summary judgment record
Plaintiff has the burden to show error in the appealed judgment. When that judgment is the result of the rule on summary judgment, any theory for reversal must either stand on the summary judgment record, or it must fail. Appellant’s brief does not address the summary judgment record, so the Court of Appeals dismisses the appeal.
RICK LISEK AND JENNIFER LISEK, Plaintiffs-Appellants v. GREG TABER AND COLLEEN S. TABER, Defendants-Respondents
Missouri Court of Appeals, Southern District - SD37897
Different timing for change of judge in associate division
Rules provide an automatic change of judge upon timely filing of a written motion so, on timely filing, the judge loses all authority other than to grant the motion. Rule governs the time for filing generally but, for associate division, a statute specifically applies “a much more liberal standard than” the rule. Relator’s motion was timely, so the Court of Appeals makes permanent its writ of prohibition requiring the circuit court to grant the motion.
State of Missouri Ex Rel. David Hutchinson, Relator, v. The Honorable Antonio M. Manansala, Associate Circuit Judge, Twenty-Third Judicial Circuit, Jefferson County, Respondent.
Missouri Court of Appeals, Eastern District - ED111931
Service on “HR” insufficient
Personal jurisdiction requires notice of an action, which may occur on delivery to an agent, if the agent has at least apparent authority. An out-of-state deputy sheriff’s return of service must also include an affidavit stating the deputy’s authority and describing the service. The return stated only “left with HR,” which does not show any authority to receive notice. On relator’s motion to quash service of process, a return of service is prima facie evidence of the return’s allegations, but an affidavit filed separately is not part of the return. Defendant relator’s evidence negated any authority in the human resources department of relator’s employer to receive service. Apparent authority arises from the conduct of the apparent principal, not the apparent agent, and no evidence showed any conduct of relator investing authority to receive service in anyone. The Court of Appeals makes permanent its preliminary writ of prohibition and orders the circuit court to vacate its order denying the motion to quash.
State Ex Rel. Sedrick Phillip-Smith, Relator, vs. The Honorable Michael E. Stelzer, Circuit Judge, Twenty-Second Judicial Circuit, City of St. Louis, Respondent.
Missouri Court of Appeals, Eastern District - ED111912
No personal jurisdiction over out-of-state party to out-of-state sale
Plaintiff has the burden of showing personal jurisdiction. A motion to dismiss for lack of personal jurisdiction may have support in matters outside the pleadings, and consideration of such matters does not convert the motion to dismiss into a motion for summary judgment, because the motion will not reach the merits. Therefore, the denial of such a motion or an action for an extraordinary remedy is interlocutory and does not have preclusive effect, especially where defendant needed time for discovery. Personal jurisdiction over a corporation can be general based on the state of incorporation, principal place of business, or registration to do business—the last of which Missouri statutes do not provide. Personal jurisdiction over a corporation can also be specific based on events in the state as provided by long-arm statute within a degree that satisfies due process. Missouri’s long-arm statute restricts authority to actions directly related to the statute’s provisions. That statute provides personal jurisdiction over a corporation that transacted business in Missouri, but that does not describe a sale of goods in Kansas from a Texas seller to a Florida buyer, nor a fatal wreck in Kansas with survivors in Kansas and Georgia. Neither transporting the goods through Missouri through a Missouri driver on a Missouri-licensed vehicle, nor a separate eventual re-sale to an eventual Missouri buyer unknown to the Texas seller, alter that result. Preliminary writ of prohibition made permanent with directions to vacate order denying, and issue order granting, defendant seller’s motion to dismiss.
State of Missouri ex. rel., DKM Enterprises, LLC vs. Honorable Stacey Lett, In Her Official Capacity as Circuit Judge, Circuit Court of Cass County
Missouri Court of Appeals, Western District - WD86384
No multiple acts problem
The Missouri Constitution requires that a criminal verdict must be unanimous on an incident that constitutes an offense, which the charging instrument and jury instructions protected, by separately alleging and submitting separate incidents in separate counts. Defendant’s narrative offer of proof preserved error in exclusion of evidence. Evidence of victim’s motive to lie is logically relevant. But defendant’s evidence was insufficiently probative, in that it was too remote from victim and defendant, to be legally relevant.
State of Missouri, Respondent, v. Eugene P. Campbell, Defendant/Appellant.
Missouri Court of Appeals, Eastern District - ED110923
No counsel appointed, no prejudice
Defendant showed no prejudice from the circuit court holding an initial appearance, initial bail hearing, and detention review without appointed counsel. A criminal defendant’s first appearance need not constitute an arraignment, and an arraignment is not necessarily a critical stage of the action, so that appearance need not include appointed counsel. No prejudice results from a plea of not guilty, even without counsel, and defendant showed no prejudice to his right to file a motion for change of judge. Knowingly entering upon enclosed real property, like a restaurant’s fenced patio, constitutes first degree trespassing. Defendant committed peace disturbance by physical obstruction when defendant tried to enter the restaurant, requiring the restaurant owner to keep defendant out. Judgment is final when circuit court imposes sentence as rendered in the defendant’s presence verbally, and the required written judgment is a later ministerial act.
State of Missouri vs. James Eugene Logan
Missouri Court of Appeals, Western District - WD85831
Mistaken instruction corrected
The evidence showed that an intruder had left an alcohol container at the crime scene, so a reference to that evidence of burglary in closing argument was not improper. The evidence did not show that defendant was intoxicated, so no instruction on voluntary intoxication was due, but the circuit court mistakenly read one anyway, then corrected itself before the jury. Juries are presumed to follow instructions, including as corrected, and especially with the circuit court’s explanation of an instruction mistakenly read. Defendant showed no prejudice, so the Court of Appeals affirms defendant’s conviction.
STATE OF MISSOURI, Plaintiff-Respondent vs. TYMAN DEVETTE LATIN, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37722
Charges and amendment okay
An information that cites the offense by statute number is sufficient and omitting a recitation of elements does not alter that result. An amendment to the degree of robbery charged did not affect defendant’s alibi, and defendant showed no prejudice from the omission of separate arraignment, so the Court of Appeals declines plain error review. An arraignment is a proceeding in which defendant receives the charging document, hears the substance of the charge, and enters a plea. Anything less does not constitute an arraignment, no matter what a docket entry says, though it may be a hearing or an initial appearance to assess indigency. But no appointment of counsel is then required. Even at an arraignment, failure to appoint counsel for an indigent defendant is not error unless prejudice results, and no transcript is required unless defendant waived counsel. Loss of consciousness, subsequent beating, and resulting injuries supported a finding of serious physical injury.
STATE OF MISSOURI, Respondent v. LORANDIS M. PHILLIPS, Appellant
Missouri Court of Appeals, Southern District - SD37382
City indemnified against contractor’s conduct, not city’s conduct
For violation of the city’s drug testing policy, city terminated an employee, who then prevailed in an action for discrimination based on sex and perceived disability against the city. City then sought indemnification from its contractor for drug testing. The city’s standard contract provided that the contractor indemnified city for damages caused by the city, but the contractor’s modifications provided that the contractor indemnified the city for damages caused by the contractor. Contractor did not discriminate against, nor terminate the employee, so contractor had no liability for indemnity.
City of Kansas City, Missouri vs. Occupational Health Centers of the Southwest, P.C., d/b/a Concentra Medical Centers
Missouri Court of Appeals, Western District - WD85602
Evidence was not stale
The passage of time between trial and judgment may render the evidence stale when the evidence is subject to change and a party offers evidence of substantially changed circumstances. But that does not describe appellant’s systematic attempts to destroy respondent’s relationship with their child, including abuses of legal processes and violation of circuit court orders, without offering more recent evidence. “[T]he fact that these things had occurred [is] enough to support the judgment. The fact that they are no longer occurring is not relevant to the judgment [.]” An award of sole custody to respondent supported eliminating appellant’s award of child support. The conduct of appellant supported an award of attorney fees to respondent. When appellant appeals a judgment as against the weight of the evidence, appellant’s argument must include challenging a factual finding and mustering all evidence supporting that finding, which appellant failed to do.
J.R.M.-J., By and Through Her Next Friend, S.J., and S.J. Individually, Respondents, v. R.T.M., Appellant.
Missouri Court of Appeals, Eastern District - ED111017
Marital property included “separate estate and property”
In an action for dissolution of marriage, for the division of property, the circuit court must characterize all property as either marital or separate. Marital property presumptively includes all property acquired during the marriage and excludes property designated by “valid written agreement of the parties [.]” The parties’ written agreement designated real properties as “separate estate and property” of appellant, but that agreement provided only that respondent’s participation was unnecessary for appellant to transfer them, which did not constitute respondent’s waiver of marital interest. The parties’ testimony, as weighed by the circuit court, supported a finding that the parties intended no waiver. The circuit court did not err when it included those parcels in marital property.
JANE E. ZAMORA, Petitioner-Appellant v. HUGO E. ZAMORA, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD37807