Case summaries for Sept. 9 - Sept. 15, 2022
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 Appeal from Denial of Default
An appellate court’s remand of a case to an agency restores the agency’s authority for compliance with the appellate court’s mandate and the authority of a circuit court to review the decision on remand pursuant to statutes. In that circuit court action, an “order” denying a motion for default judgment is not a final judgment because it is not denominated a judgment and disposes of fewer than all issues as to all parties. The appeal from that order is dismissed.
Gregory Stiens vs. Missouri Department of Agriculture
Missouri Court of Appeals, Western District – WD84773
No Appeal from Partial Summary Judgment
Statute and rule set forth the rulings subject to appeal. Absent exceptions not applicable, appeal is available only from a final judgment, which is a judgment disposing of all claims as to all parties. In an action for replevin of multiple items, circuit court dismissed the claim as to one item, which does not constitute a final judgment. Dismissed.
Dennis L. Laramore, Appellant, v. Zachary Jacobsen, Mike Gum, William Gleeson, Andy Skiles, and Doug Tuning, Respondents.
Missouri Court of Appeals, Eastern District – ED110112
Post-Judgment Intervention Denied
“Post-judgment intervention is granted only if substantial justice requires intervention.” The Attorney General’s position, in an action for declaratory judgment on mask mandates, did not show that substantial justice supported appellants’ motions for post-judgment intervention. That was because the Attorney General’s position was well-known to appellants well before judgment. Without intervention, appellants’ substantive points are not subject to appellate review.
Shannon Robinson, et al vs. Missouri Department of Health and Senior Services; St. Louis County; Board of Trustees, Livingston County Health Center and Melanie Hutton, Administrator, Cooper County Public Health Center; Jefferson County Health Center; Jackson County, Missouri
Missouri Court of Appeals, Western District – WD85070, WD85071, WD85074, WD85075, WD85076
Repo Documents Okay
To collect a deficiency judgment from a borrower, a secured lender must strictly comply with statutory procedure, which include the lender sending certain documents to the borrower. Certified mail was sufficient for lender’s transmittals to borrower and no return receipt was necessary. Before disposing of collateral securing a loan, lender must give notice to the borrower of how the lender intends to dispose of the security. Lenders admitted receiving the pre-sale notice and nothing in the record shows the contrary. Lender’s pre-sale notice was accurate when it referred to a dealers-only auction as a private sale, because neither borrowers nor the general public had an opportunity for competitive bidding, so the notice need not include the time and place of the sale. After such sale, lender must send an explanation of any deficiency remaining, but need only send it once.
The Central Trust Bank, Appellant, vs. Barbara Branch and Alexis Branch, Respondents.
Supreme Court of Missouri - SC99297
Restitution Ordered Too Late
In a criminal action, circuit court’s authority ends with the imposition of sentence, so an order of restitution entered a month later was void. The parties’ discussions of restitution before the circuit court lost authority, including making restitution part of the plea bargain, and are irrelevant. The Court of Appeals makes permanent its preliminary order in prohibition and orders the circuit court to rescind the order of restitution.
SXR Lacee K. Adams vs. The Honorable Kevin Crane
Missouri Court of Appeals, Western District – WD85407
Further Colloquy on Guilty Plea Required for Co-Defendants Mother and Son
Movant and co-defendant were mother and son, and movant received a plea offer that would have benefitted her son but not her. Those unique circumstances required a further colloquy than usual for a guilty plea, “Were there any promises, agreements, suggestions, or discussions that involved your co-defendant and son in this case that you are relying upon to enter this plea of guilty?” The plea deal later changed to have no effect on her son. On a motion for post-conviction relief, movant alleged that trial counsel failed to disclose the change to the plea bargain and that she felt compelled to plead guilty for her son’s sake. Rule provides that no evidentiary hearing is due when the record conclusively refutes the allegations in the motion. Trial counsel’s unsworn statement, that trial counsel had conveyed all offers of a plea bargain and the plea was voluntary, did not conclusively refute that allegation. Therefore, an evidentiary hearing on the motion was due.
Susan J. Armantrout, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District – ED109942
No Record of Jury Waiver
An amendment to the charging instrument before opening statements removed surplus language irrelevant to the elements of the charged offense, so it affected only a technical defense, and did not prejudice defendant’s substantial rights. But plain error occurred when the circuit court conducted a bench trial without a record of “a fully informed and publicly acknowledged consent of the defendant and a personal communication of the defendant to the court that he chooses to relinquish the right to a jury trial.” If the evidence were insufficient to support a finding of guilt, no reversal would be necessary because it would merely give the State “a second bite at the apple.” But the evidence supported a finding of reasonable touching so reversal is necessary.
STATE OF MISSOURI, Plaintiff-Respondent vs. ALEJANDRO FLORES-MARTINEZ, Defendant-Appellant
Missouri Court of Appeals, Southern District – SD36979
For Verification of Signature, Secretary of State Prevails Over Local Election Authority
Unlike a post-election challenge, which can address any matter, only procedural matters are before the courts in a pre-election challenge to an initiative. Compliance with constitutional provisions for initiatives is not within the Supreme Court’s exclusive jurisdiction over substantive constitutional matters. “When courts are called upon to intervene in the initiative process, they must act with restraint, trepidation and a healthy suspicion of the partisan who would use the judiciary to prevent the initiative process from taking its course.” Without evidence of any inconvenience to the circuit court, or unfair advantage to any party, denying a motion to re-open the record was an abuse of discretion. Statutes grant standing for an election challenge to any Missouri citizen, so the circuit court erred in requiring evidence of residence for standing. The Missouri Constitution limits initiative petitions to a single subject, so voters won’t have “to vote for some matter which they do not support in order to enact that which they earnestly support [,]” and allows multiple changes in the law related to one “central controlling purpose.” Therefore, the initiative can de-criminalize marijuana effective prospectively and retrospectively. Statutes governing the initiative process require a minimum number of signatures from registered voters, which is the Secretary of State’s duty to verify, the method of which is committed to the Secretary’s discretion. Statute provides that the Secretary may send a page of signatures for verification, and no verification occurs for signatures stricken through, but the statute does not allow a local election authority to do the striking. Statute, allowing the Secretary to disregard a signature that the Secretary finds fraudulent, does not require the Secretary to disregard a signature stricken by the local election authority. Appellant did not show that any signature came from anyone other than a registered voter.
Joy Sweeney vs. John R. ("Jay") Ashcroft, In His Official Capacity, as Missouri Secretary of State, and Legal Missouri 2022 and John Payne
Missouri Court of Appeals, Western District - WD85679
Procedural Lapses Determine Candidate Qualification Contest
Strict compliance is a condition of the circuit court’s authority in an action under the election contest laws. Statutes assign a pre-election action to disqualify a candidate from nomination in a primary election to the circuit court where the election will occur, and incorporate procedural mandates for other election actions, including issuance and service of process on the challenged candidate. Failure to comply with those requirements deprived the circuit court of authority to issue its judgment. Judgment disqualifying appellant reversed.
Joshua Edward Hedgecorth, Respondent, vs. John I. Jones, IV, Appellant.
Missouri Court of Appeals, Eastern District - ED110755
Termination of Parental Rights Affirmed
Statutes allow termination of parental rights on clear, cogent, and convincing evidence of a statutory basis, and on a preponderance of evidence that termination of parental rights is in the child’s best interest. Those matters are subject to appellate court discretionary review despite appellant’s manifold deficiencies in filing the record and briefing. Evidence supported circuit court’s findings that appellant suffered from a mental condition, unacknowledged by appellant and unlikely to improve, that made appellant unable to care for children. Continuation of those circumstances showed a failure to rectify and showed that termination was in the children’s best interest. “It is not necessary to wait until children are harmed in order to find a causal relation between a mental disability or disease and harm to the children.”
In the Interest of: D.T.H., M.J.H., Juvenile Officer vs. R.B.
Missouri Court of Appeals, Western District – WD84988
No Transfer Alleged Under Fraudulent Transfers Act
Missouri Fraudulent Transfers Act defines a transfer in fraud of creditors to include certain conduct by which a debtor parts with property. Appellant pleaded that respondent deposited funds into a joint bank account. Those allegations did not state a claim under the Act because, assuming those allegations to be true, the debtor still has access to the funds. Circuit court’s judgment, dismissing the petition, affirmed.
JENETTE KONOPASEK, Plaintiff-Appellant vs. DOUGLAS and LAURA KONOPASEK, Defendants-Respondents
Missouri Court of Appeals, Southern District – SD37388
Allocution Skipped, No Prejudice Shown
When relief is based on a sentence imposed in violation of a rule, “it is not because the rule itself was violated, it is because the violation had constitutional significance.” No constitutional significance attached to the circuit court’s omission of allocution when the record shows “that the circuit court, counsel, and [movant] all believed that [movant] was engaging in allocution when he offered his apology and expression of remorse.” Movant showed nothing to add if the circuit court had formally asked whether movant had any legal cause to show why judgment and sentence should be not pronounced against him. Judgment denying relief affirmed.
Damonte Likins-Osbey vs. State of Missouri
Missouri Court of Appeals, Western District – WD84807
Extension Too Late
Rule sets a deadline for filing an amended motion, and allows extensions of that deadline, but circuit court loses authority under that rule once the deadline passes. After the deadline for filing appellant’s amended motion had passed, circuit court purported to grant appellant’s motions for an extension, after which appellant filed an amended motion. The amended motion was therefore late, necessitating an inquiry into abandonment, which the record does not show.
Courtney Little, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District – ED110063
Computer-Generated Reports Are Not Manufactured
“Tax exemptions or exclusions ... must be strictly construed against the taxpayer, and any doubt must be resolved in favor of the application of the tax.” Statutes exclude or exempt from sales and use taxes the purchase of equipment used to manufacture items sold at retail. Manufacturing means transforming one thing into another with a “separate and distinct use, identity, or value [.]” That does not describe data organized into a report sold at retail, so the purchase of computer equipment generating such reports was subject to sales tax.
Carfax, Inc., Respondent, vs. Director of Revenue, Appellant.
Supreme Court of Missouri - SC99367
Exemption for Charitable and Civic Organizations Explained
Sales and use tax statutes provide exemptions for certain transactions, and such exemptions may overlap, so one is not necessarily exclusive of the other. The plain language of exemptions for purchases or uses by “charitable organizations and institutions in their religious, charitable or educational functions and activities” and “civic ... organizations ... in their civic or charitable functions and activities” shows that those exemptions “are neither coextensive nor mutually exclusive.” Therefore, having obtained one exemption in the past does not bar respondent organization from obtaining the other exemption in the future. Respondent organizations’ construction of retail space does not conclusively characterize respondent’s function as for-profit because—while the local, minority, and women-owned tenants may seek a profit—respondent organization does not seek a profit. Nevertheless, appellant’s position was not “so readily recognizable as devoid of merit” as to support an award of attorney fees on appeal.
Beyond Housing, Inc. and Pagedale Town Center II, Respondents, vs. Director of Revenue, Appellant.
Supreme Court of Missouri - SC99051