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Case summaries for Sept. 10 - Sept. 16, 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.

Administrative | Civil | Corporations and Other EntitiesCriminal | Mental Health | Miscellaneous Actions | Real Estate | Workers' Compensation


Civil Service Commission Procedure Discussed
City’s regulations allow discipline of an employee on certain facts, so a determination that such facts exist requires the due process of law, which the City must afford through a contested case. “The administrative body does not have the discretion to determine whether a proceeding is a contested or non-contested case.” Employee may only knowingly waive rights provided by regulation. “Adherence to due process is mandatory, not merely optional or suggested, when an employee’s constitutionally-protected property interest in his or her job is implicated.” To base a decision on unsworn written statements does not comply with the due process of law or even with the agency’s rules.
Elizabeth Smith, Appellant, vs. City of St. Louis, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109423

Sunshine Law Request Must Designate Custodian
In an action against a public governmental body for penalties under the Sunshine Law, the elements include receipt of the request by the body’s custodian of records. For the prosecuting attorney’s office, statute provides that the prosecuting attorney or a designee is the custodian, and substantial compliance with that element is not sufficient. Evidence showed that the recipient of appellant’s request was a paralegal, who assembled documents in response to Sunshine Law Requests, but not the custodian. “[S]imply serving as the contact person on prior Sunshine Law requests is an insufficient basis to find apparent authority.” Judgment for respondent affirmed.
Patrick Starr, Maurice Charles, and Lee Francis vs. Jackson County Prosecuting Attorney
(Overview Summary)
Missouri Court of Appeals, Western District - WD83634


Affirmative Defenses Waived
Exhaustion of administrative remedies does not relate to circuit court’s subject matter jurisdiction, and is not an element of any claim, so the failure to exhaust administrative remedies is an affirmative defense. Any defense must appear in a responsive pleading, except those that the governing rule specifies may be raised by motion, but those do not include failure to exhaust administrative remedies or time limitations. “A pleading that makes a conclusory statement and does not plead the specific facts required to support the affirmative defense fails to adequately raise the alleged affirmative defense, and the alleged affirmative defense fails as a matter of law.” On such a failed affirmative defense, no relief is possible. To prevail on summary judgment, the movant’s material facts must appear in a statement of numbered paragraphs, and supporting exhibits will not substitute for appearance in a numbered paragraph. Summary judgment for respondents reversed.
Missouri Court of Appeals, Southern District - SD37022

Corporations and Other Entities

Ouster from LLC Results in Damages 
Statutes governing a limited liability company set forth the rights of an expelled member, which no provision in the parties’ operating agreement altered only by adding specified payments. But nothing showed that those payments were in lieu of rights under the statutes, or the operating agreement, and they did not support an accord and satisfaction. Circuit court did not err in considering related portions of operating agreement. Appellants did not show that circuit court erred in determining LLC’s value, as an amount distinct from its net worth, and the circuit court’s credibility determinations are due deference on appeal. Circuit court did not err in awarding punitive damages and attorney fees. 
Missouri Court of Appeals, Southern District - SD36850


Hate Crime Conviction Affirmed
Statutes determine degree of offense, in part, by motivations that include victim’s ancestry. "'Because of' in hate crime statutes means that 'but for' the victim’s race or other enumerated characteristics, the defendant would not have committed the crime.” The prosecution’s evidence of race-based motivation included the multiple use of racial slurs and was sufficient to convince a reasonable juror beyond reasonable doubt. 
State of Missouri, Respondent, vs. James C. Street, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109099

Silence Rehabilitates Venire Persons
The record showed that no juror refused on voir dire to follow the circuit court’s instructions on use of a firearm for self-defense. “[S]ilence in response to this direct question from the trial court constituted an unequivocal assurance of impartiality for the purpose of rehabilitation.” Court of Appeals declines plain error review of a sentence supported by statute when the record shows no mistake by the circuit court. 
STATE OF MISSOURI, Plaintiff-Respondent v. RONALD R. SPRADLING, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36333

Mental Health

No Showing of Ineffective Counsel Over Transgender Identification
In an action for confinement as a sexually violent predator, appellant had the right to effective trial counsel, but challenging the judgment requires appellant to advance a theory to the Court of Appeals. The theory might be “the meaningful-hearing standard [,]” or the failure-and-prejudice standard, but appellant made no showing under either. Appellant “presents no evidence that her identification as a transgender woman would in fact make her less dangerous to reoffend” nor how “a reasonable attorney would [have shown that] identification as transgender would have rendered her any less dangerous to reoffend or would have reasonably affected the outcome of her trial.” Instructions specified the offenses on which the jury could find appellant a sexually violent predator and so did not mislead the jury.
In the Matter of the Care and Treatment of Jerry Davis, a/k/a Jerry M. Davis, Jr., a/k/a Jerry Miller Davis, Jr. vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83673

Miscellaneous Actions

Circuit Clerk Suspension Case Resolved
Statutes provide suspension of circuit clerk pending trial for a misdemeanor and vest “general administrative authority over all ... court officials in the circuit” in the presiding judge. Presiding judge issued an order suggesting that the circuit clerk committed a misdemeanor, suspended circuit clerk indefinitely, and barred circuit clerk from exercising any capacity of that office. That order constituted a de facto removal from office, which can only happen by misdemeanor conviction, or judgment of ouster in quo warranto. Administrative orders are not subject to judicial immunity. A circuit court has authority to determine not only declaratory, but also injunctive, relief against a circuit judge. Judgment reversed as to injunctive relief and remanded to enter injunction against enforcement of the presiding judge’s order.
Karla K. Allsberry, Respondent/Cross-Appellant, vs. Patrick S. Flynn, in his individual capacity, Appellant/Cross-Respondent.
(Overview Summary)
Supreme Court of Missouri - SC99257

Real Estate

No Standing for Unlawful Detainer
Statutes create the action for unlawful detainer to determine the right of immediate possession, and describe the persons subject to such action, and the persons withstanding to bring such action. Purchase at sheriff’s sale did not constitute purchase after foreclosure on a deed of trust. Occupant was not an intruder because there was no “disseisin,” which means “wrongful entry without force on the actual [prior] possession of another.” Appellant’s facts suggest the remedy of ejectment.
Danielle Goser, Respondent, vs. David Boyer, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109244

Workers' Compensation

Application for Review Was Sufficiently Specific
Regulation governing an application for review of an ALJ award before the Labor and Industrial Relations Commission requires more than a conclusory charge that the award lacks support in substantial and competent evidence. It requires pleading with specificity, which appellant accomplished by citing the evidence omitted or misconstrued in the ALJ’s analysis.  
Linda Miller, Appellant, vs. Henniges Automotive Sealing Systems North America, Inc., Travelers Indemnity Company of America and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109432