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Case summaries for Sept. 11 - Sept. 17


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 | DWI | Insurance | Personal Injury | Post-Conviction | Real Estate


Declaratory Judgment Moot
Appellant’s release from incarceration mooted an appeal from the dismissal of his declaratory judgment action, which tested the lawfulness of his incarceration.
KEITH BRADFORD, Petitioner-Appellant vs. MARK DOBBS, Butler County Sheriff, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36687

Multifarious Point Preserves No Issue
Rule sets forth the mandatory template for points relied on. Appellant’s failure to comply with that requirement preserves nothing for review. In addition, failure to comply with rules on statement of facts, citations to legal authority, and filing a transcript of the file, rendered his appeal unreviewable. Dismissed.
B.N.A. (Formerly B.N.R.) vs. Douglas B. Ready
(Overview Summary)
Missouri Court of Appeals, Western District - WD83447


Notice to Counsel Is Notice to Party
“[T]he right to proceed on a judgment and enjoy its fruits and the right to appeal therefrom are totally inconsistent positions, and the election to pursue one course must be deemed an abandonment of the other.” Notice to appellants’ counsel, either by email from another party’s counsel or by eNotice from Case.net, is imputed to appellants. Appellants settled all claims, had ample notice of every step in receiver’s sale and distribution of assets, never objected, and received proceeds. Denying respondents’ motion to sanction appellants, for filing a frivolous appeal, requires the Court of Appeals to exercise “enormous restraint.”
Missouri Court of Appeals, Southern District - SD36388

Allegations Are Primary in Summary Judgment, Affidavits Are Secondary
Insured made a claim under a medical insurance policy, which provided a hospital confinement benefit, but excluded facilities used for rehabilitation. Policy definitions of hospital and rehabilitation are not ambiguous. Insurer claimed benefits for a hospital confinement, which insurer denied in part based on insured’s stay in a hospital’s rehabilitation unit, so insured sued for breach of contract and vexatious refusal to pay. The summary judgment record showed that insured used the unit for rehabilitation, but the motion made no such allegation, so that material fact of insurer’s defense was never established. “[A]ny facts contained in the [summary judgment record], to the extent those facts are not otherwise expressly [alleged in a statement of undisputed material facts] are not relevant to our . . . analysis as to whether [insurer] made a prima facie showing of a right to judgment.” Because insurer made no prima facie showing as to breach of contract, insurer also made no prima facie showing as to the derivative claim of vexatious refusal to pay, and insured’s response is irrelevant.
Missouri Court of Appeals, Southern District - SD36561


Attempted Stealing by Force Shown
The elements of robbery in the first degree include taking property by the use or threat of force. The jury could infer that appellant was using or threatening force, against officers who seized him, from appellant’s instructions to shoot someone. Conviction for attempted first degree robbery affirmed.
STATE OF MISSOURI, Plaintiff-Respondent vs. BILLY RAY LITTLEFIELD, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36327

Impeachment of Child Witness’s Out-of-Court Statements Discussed
A motion for post-conviction relief, based on ineffective assistance of trial counsel, fails unless movant proves two elements: counsel’s performance below a reasonable level of competence, and a resulting diminution of confidence in the trial’s outcome; failure of proof on either element defeats the claim. Statute’s conditions, for allowing a child witness’s out-of-court statements into the record, include the child witness’s presence at trial for “sufficient” testimony; not on direct examination, but on cross-examination. Child witness’s inarticulate answers on direct were no grounds for any objection to child witness’s out-of-court statements by video, audio, and writing. Movant did not allege that trial counsel failed to call an expert witness to impeach some results of the investigation; and, even if he did, movant did not show any prejudice from that decision. Trial counsel was not ineffective for failing to introduce medical records that would not have helped movant. Movant showed no prejudice from trial counsel’s decision to make no objection when the State offered DNA evidence irrelevant to victim.
Robert L. Hook vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82639

Right to Speedy Trial Not Violated
Whether a violation of the right to a speedy trial occurred depends on weighted factors: when the defendant asserted the right to a speedy trial; the party responsible for, the reason for, and the length of the delay; and prejudice—actual and particularized—to the defendant. A lengthy delay, even without proof of prejudice, can prove a violation of the right to a speedy trial. Between the date when authorities first took defendant into custody, and the date when defendant’s trial began, a delay of eight months presumptively prejudices defendant. Defendant did not assert the right to a speedy trial until the continuance of his first trial setting. Prosecutors were deployed to the army reserves, dismissed and refiled charges for tactical reasons, and sought a change of judge; but that accounted for only seven days’ delay. On those facts, the circuit court did not err in denying defendant’s motion to dismiss.
State of Missouri vs. Gregorio L. Davis
(Overview Summary)
Missouri Court of Appeals, Western District - WD82331

One Incident, Two Offenses, No Double Jeopardy
The General Assembly may punish one course of conduct under more than one statute without causing double jeopardy. Statute provides that it intends to do so, but not for lesser-included offenses. Third-degree assault is not a lesser-included offense of second-degree robbery because, though they share the element of physical injury, third-degree assault always includes knowingly causing physical injury, but second-degree robbery requires purpose only in stealing, not in the accompanying injury. Evidence supported a finding that defendant used a dangerous instrument, and instructions defined that term, so circuit court need not clarify for jury whether that term included defendant’s fists.
State of Missouri, Respondent, vs. John R. Wright, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108321

No Spousal Privilege Without Ceremony
Failure to challenge voir dire of venire persons waives objection to their seating on the jury. Circuit court has no duty to strike a juror sua sponte, so failure to strike sua sponte can never be plain error. The record shows responses of venire persons constituted representations that they could be fair and impartial. Errors omitted from defendant’s motion for new trial are within the discretion of the Court of Appeals to review for plain error. Plain error did not occur when circuit court refused to restore incarcerated defendant’s telephone privileges, after granting defendant’s voluntary, unequivocal, knowing, and intelligent motion to represent himself, and confirmed defendant’s desire to represent himself without telephone privileges. Plain error did not occur when circuit court denied witness’s assertion of spousal privilege. Spousal privilege requires not only a marriage certificate but also a solemnization, which means a ceremony before witnesses, which did not occur between witness and defendant upon signing and filing when defendant knew nothing of it. Late subpoena of a witness timely endorsed, with the opportunity for an interview before direct examination, was no surprise. Once defendant asked witness on direct examination about earlier domestic violence, the State’s evidence on that topic was admissible on re-direct. Admitting cumulative evidence is not prejudicial.
State of Missouri vs. Dairian E. Stanley
(Overview Summary)
Missouri Court of Appeals, Western District - WD81606

Enhanced Sentence Unsupported by Evidence and Instructions
Statute enhances the sentence for resisting an arrest, or resisting a lawful stop, from class A misdemeanor to class E felony. An arrest and a stop are distinctive events as shown by statutes, and approved instructions. For resisting arrest, enhancement follows from a finding that the arrest was for a felony. For resisting a lawful stop, enhancement follows from a finding that defendant’s flight “create[d] a substantial risk of serious physical injury or death to any person.” The State charged defendant with resisting a lawful stop, but offered no evidence of or instruction on any risk of serious physical injury or death. Circuit court’s enhanced sentence on that procedure was error. Reversed and remanded for resentencing as a class A misdemeanor.
State of Missouri, Respondent, vs. Patrick Jerome Steward, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108086

No Multiple Act Problem
On charges of certain sex offenses, Missouri Constitution permits evidence of defendant’s prior sexual misconduct as propensity evidence. The stipulation by which convictions entered the record was less prejudicial than the conduct, which was similar to allegations in the charging instrument, and was probative. Prior convictions were also an element of the offense charged and showed intent. Charging instrument did not charge multiple acts in a single count, instructions specified the incident on which jurors must agree to find defendant guilty, and conflicting evidence on details of location and time do not make that single incident into multiple acts. 
State of Missouri, Plaintiff/Respondent, v. Gray Wayne Brammer, Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108021


Source of Breath Analyzer Is Irrelevant
Foundation for admitting breath test results includes “equipment and devices approved by the [D]ivision” of Health and Senior Services, and regulation describes the approved devices by model and “manufacturer or supplier.” But manufacturer or supplier is not among the items in that same regulation’s checklist for operating the breath analyzer, so no testimony on where the device came from is necessary to admit the breath analyzer’s results.
William Henke, Respondent, v. Director of Revenue, State of Missouri, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108287


Realistic Right of Control Over Agent Explained
Circuit court did not rely on the presumption that the driver of an automobile, owned by a passenger acquiescing in the operation, is the owner’s agent and is acting within the scope of his agency. Circuit court relied on evidence showing agency: owner exercised her realistic right to control, by soliciting driver to drive, and directing driver to a destination. Such agency results in the principal’s liability for the agent’s wrongful acts. Substantial evidence, and the weight of the evidence, supported plaintiffs’ verdict for negligence and the derivative claim for loss of consortium, evidence favoring defendant notwithstanding. Statute, granting insurer the right to intervention in litigation against its insured, gives an insurer an interest in that litigation, and aggrievement by a judgment against its insured, so the insurer may appeal an adverse judgment.
Marlon Price and Michelle Price vs. Shirley Thompson, and Young America Insurance Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD83002

Personal Injury

Cap on Damages Against Bi-State Agency for Federal Violations
One statute required defendant State agency to comply with federal regulations on financial responsibility, including carrying insurance in the amount of $5,000,000, as a condition of State funding. Another statute waived defendant State agency’s sovereign immunity for injuries caused by the operation of motor vehicles, but provided that procuring insurance did not waive sovereign immunity, and capped defendant State agency’s liability for damages at $300,000 “for any one person in a single accident or occurrence [.]” The two statutes do not conflict and both statutes apply, so statutory construction is unnecessary, and the Supreme Court affirms the circuit court’s remittitur.
Mary J. Moore, Appellant, vs. Bi-State Development Agency d/b/a Metro, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98169

Landlord May Be Liable When Handrail Not in Place
Ordinances can codify, but cannot alter as a statute can, common law duties. Landlord can be liable for damages resulting from failure to disclose a known dangerous condition of the premises. Landlord is not liable for failure to disclose ordinance’s requirements, but landlord can be liable for negligence per se based on violation of an ordinance, when that violation resulted in damages. Landlord can also be liable for negligence, consisting of failure to make repairs, if those are contractually due and the landlord retained the right to enter the premises for such repairs. In response to landlord’s motion for summary judgment, plaintiff offered evidence that landlords “reserve[d] the right to enter upon the leased premises at all reasonable hours for the purpose of inspecting the [premises], or of making repairs, additions or alterations to the building in which the leased premises [were] located [.”] That evidence raised a genuine issue as to a fact material to landlords’ liability. Court of Appeals reverses summary judgment for landlords.
Michelle Eickhoff, Et Al., vs. Douglas Gelbach, Et Al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83433


Appointed Counsel Necessary Even When Motion Looks Untimely
Rule requires appointment of counsel for indigent movant, even when initial motion appears untimely, and failure to comply with that rule before dismissal requires reversal and remand.
John H. Bonds, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108654

Appointed Counsel Is Necessary Even When Motion Is Facially Untimely
Rule requires appointment of counsel for indigent movant, even when initial motion is untimely on its face, and movant alleged that he was indigent. Failure to comply with that rule before dismissal requires reversal and remand. “[W]hen a motion court dismisses a movant’s [initial] motion for untimeliness, [an] exception to [the] time limits may apply to the movant’s circumstances—something that the movant may not be aware of absent post-conviction counsel’s legal expertise and that may be raised in an amended . . . motion.”
Ross Randolph, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108150

Inquiry Into Abandonment Required
Circuit court must rule on the initial motion only, if the amended motion is late, unless counsel for the amended motion was appointed counsel. If so, the late filing is presumptively the result of abandonment by counsel, and circuit court must conduct an independent inquiry into abandonment. Remanded for that inquiry.
Alonzo Showalter, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108085

Real Estate

Rezoning for Concrete Plant Affirmed
“[R]ezoning is a legislative act []” and granting an application, after investigation and review of evidence on the record, constitutes the exercise, not an abdication, of legislative authority. Rezoning decisions are presumed reasonable and sustained if reasonably debatable. County planning and zoning regulations’ provisions for heavy manufacturing in a commercial district is rationally related to comprehensive zoning plan’s provisions for economic growth and diverse land uses, and is not unconstitutionally vague. Classification of concrete plant as commercial instead of industrial is “at least fairly debatable” so appellants did not show that it does not violate constitutional Due Process protections. The record showed that rezoning included a public benefit of access to fresh concrete, basins for protecting groundwater, and a vegetation buffer for protecting residential property values, so appellants did not show that uses for contiguous lots were incompatible, nor that rezoning lacked a rational relationship to public safety, health, morals, and welfare.
State ex rel. Darin Gilley and Karen Dean, Appellants, vs. County Commission of Franklin County, Respondent, and Landvatter Enterprises, LLC, Intervenor/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108527