Case summaries for Sept. 13-19, 2024

Appellate | Criminal | Employment security | Evidence | Insurance | Local government | Post-conviction | Probate | Real estate

Appellate

Appeal from summary judgment explained
Just as the circuit court had to base its ruling on the summary judgment record, an appellate court had to review the summary judgment on the same record. Accordingly, the appellant's statement of facts had to set forth the material facts established beyond dispute and, if the appellant's statement of facts did not consider responses, an appellate court could not know whether any dispute remained. Though the Court of Appeals preferred to reach the merits, it could not do so because it would have had to reconstruct the facts, which would make the Court of Appeals less than neutral. The Court of Appeals dismissed the appeal.
MARTIN LEIGH, PC, Respondent v. BETTY WILLIAMSON, ET AL., and DAN HORGAN, ET AL., Respondents and LOANCARE, LLC., Appellant
Missouri Court of Appeals-Southern District – SD38172

Criminal

Conditional release explained
Statutes unambiguously provided that each sentence of incarceration included a conditional release date that was subject to extension all the way to the entire term of confinement for violation of prison rules. The circuit court did not err in quashing the preliminary writ.
(Overview summary)
Brooke Buddemeyer vs. Trevor Foley, Director, Missouri Department of Corrections 
Missouri Court of Appeals-Western District – WD86806

Asking about registration versus failure to register
The elements of failing to register as a sex offender included moving to a new address without registering that address. Asking whether the new address was acceptable did not constitute registration. Evidence that the defendant acted knowingly included an admission that the new address was too close to a school. Proximity to a school was part of the defendant’s opening statement, cross-examination, and closing argument, so any error in failing to sua sponte object was invited and did not constitute plain error.
STATE OF MISSOURI, Plaintiff-Respondent, v. STEVEN RAY HANKS, SR., Defendant-Appellant.
Missouri Court of Appeals-Southern District – SD38162

No plain error in omitting notetaking instruction
The elements of plain error included both an obvious error and a resulting manifest injustice or miscarriage of justice. Allowing jurors to take notes without the approved instruction on notetaking was error. But the defendant did not allege or show that any manifest injustice or miscarriage of justice resulted; “speculative error” was not enough. Giving an affirmative defense instruction on involuntary intoxication without a cross-reference in the verdict director for first-degree murder was error. But the parties specifically referred to that affirmative defense instruction in closing argument and the defendant did not show the jury was unaware of or failed to use the instruction, and so did not show any resulting manifest injustice or miscarriage of justice. When the defendant agreed to the circuit court’s proposed concurrent sentencing, the defendant waived plain error in concurrent sentencing.
STATE OF MISSOURI, Respondent v. ELIZABETH H. MCKEOWN, Appellant
Missouri Court of Appeals-Southern District – SD37712

No sua sponte ruling, no error
Constitutional provisions protected the defendant from peremptory strikes of jurors based on protected classifications, including a pretextual alternative explanation for such a strike, but the defendant did not show any plain error in the circuit court’s finding that the strike was not pretextual. No error occurred in the lack of a sua sponte strike of testimony that the defendant elicited. The elements of plain error included an evident, obvious, or clear error, which did not describe the lack of a sua sponte mistrial when the circuit courthouse was struck by gunfire. Appellate courts presumed that jurors followed instructions, so even misstatements of law in closing arguments were presumed harmless, and the state corrected its misstatement of the law, so no error occurred when the circuit court overruled the defendant’s objection.
(Overview summary)
State of Missouri, Respondent, vs. Deion Anthony Whalen, Appellant.
Missouri Court of Appeals-Eastern District – ED111877

Evidence supported a finding of volition
Rule set forth the elements of a motion for continuance based on the absence of a witness set forth the elements of such, which the defendant did not plead. The defendant’s motion for a continuance alleged that a witness was avoiding service, which did not preserve a challenge under the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. The defendant’s criminal liability was always founded on volitional conduct, either doing something through the defendant’s effort or failing to do something that the defendant could have done, and the record supported a finding that the defendant was awake when the defendant committed the conduct alleged. The record also supported a finding that the victim was asleep when the defendant committed that conduct.
(Overview summary)
State of Missouri, Respondent vs. John Swearinger III, Appellant.
Missouri Court of Appeals-Eastern District – ED111774

Propensity evidence okay
On a charge of statutory sodomy in the second degree, an exact date of the occurrence alleged is not indispensable, and the testimony of the victim was sufficient to support a finding of guilty. Admission of propensity evidence had support in the similarity of earlier events to later events, and in the absence of physical evidence, while the circuit court and the prosecution reduced the risk of prejudice by emphasizing jury instructions to focus on the conduct alleged.
(Overview summary)
State of Missouri vs. Kurt M. Bumby
Missouri Court of Appeals-Western District - WD86235

Corpus delicti sqhown without corpse
In any homicide charge, the corpus delicti rule required evidence that the victim died from a criminal act, which the State satisfied with evidence of acrimonious relations, messages planning and describing a murder, biological evidence, a cover-up, and flight from law enforcement. That evidence of the defendant's communications and conduct before, during, and after the victim's disappearance also satisfied the State's burden, on a charge of murder in the first degree, to show the element of deliberation. The elements of kidnapping in the first degree included removal or confinement, unlawful and non-consensual, for a substantial period and as an added danger to, and not merely as an incident to, another offense. The State did not show that the defendant's conduct in luring the victim involved any more unlawful conduct, or added any danger, to the planned murder. The Court of Appeals reversed the conviction for kidnapping for the circuit court to vacate that judgment. The Court of Appeals affirmed the conviction for murder but remanded to conform the written sentence to the sentence spoken in open court by order nunc pro tunc. 
STATE OF MISSOURI, Plaintiff-Respondent vs. DUSTIN CURTIS WINTER, Defendant-Appellant
Missouri Court of Appeals-Southern District – SD37914

Employment security

No substantial and competent evidence of mailing
The Missouri Labor and Industrial Relations Commission dismissed the claimant’s appeal for untimely filing. That appeal addressed the Missouri Division of Employment Security determination that the claimant had committed fraud by failure to report earnings. A statute provided that the division’s documents constituted prima facie evidence of their content, but prima facie evidence was not conclusive evidence, and the date on the letter giving notice to the claimant of that determination did not prove that anyone ever mailed that letter. “[T]he Division’s own audit revealed that [claimant] had no earnings for that week. The fact that this error is obvious on the face of the document, yet remained uncorrected, gives rise to the reasonable inferences that the Division wished to process with haste the overpayment by fraud determination regardless of whether it was accurate and to recover amounts paid to [claimant] regardless of whether the amounts constituted an overpayment. This additional evidence allows for the reasonable inference that the reason why [claimant] never received the notice of overpayment by fraud was because the notice was never sent.” For lack of substantial and competent evidence supporting the dismissal, the Missouri Court of Appeals reversed the commission’s decision and remanded the claim with directions to examine the claimant’s evidence.
(Overview summary)
Vaughn Wattree vs. Division of Employment Security 
Missouri Court of Appeals-Western District - WD86847

Evidence

Evidentiary rulings affirmed in theme park discrimination case
Statutes barred disability-based discrimination in public accommodations. Evidence of safety requirements like avoiding head-on collisions for a bumper car ride, including the Amusement Ride Safety Act and the defendant’s signage, was relevant to the plaintiff’s blindness, for which the theme park assigned a reasonable accommodation in the form of a companion employee. Videos showing bumper cars colliding head-on was cumulative of other evidence, so its exclusion was not prejudicial. The plaintiff showed no prejudice from evidence that the state paid the plaintiff’s assistant. The defendant’s closing argument on safety standards did not misstate the law, and the plaintiff showed no prejudice from those arguments, especially considering the jury instructions. The jury instructions were not the subject of any objection from the plaintiff at trial, so no error as to those instructions was preserved on appeal. Because the jury found for defendant on liability, no prejudice resulted from the circuit court’s directed verdict against punitive damages, or from excluding evidence on punitive damages.
(Overview summary)
Jose Lopez vs. Cedar Fair, L.P.
Missouri Court of Appeals-Western District - WD85931

Insurance

Judgment ineligible for certification
Statutes allowed an appeal from a final judgment, which was any ruling that disposed of all claims as to all parties. Rule allowed certification for appeal of a judgment that was less than final but disposed of a judicial unit, which was either all claims as to one party, or one claim that was distinct from all other claims. Neither type of judicial unit was resolved in a judgment that resolved the plaintiffs’ claim equitable garnishment but not the plaintiffs’ claim for bad faith failure to settle arising from the same set of facts. The Missouri Court of Appeals dismissed that judgment for lack of jurisdiction.
(Overview summary)
Tracy Sykora, Ashley Sykora and Matthew Sykora vs. Farmers Insurance Company, INC.
Missouri Court of Appeals-Western District – WD86567 Consolidated with WD86584

Local government

Employer liable for employee’s conduct in official capacity
Public employees were generally immune, not merely from damages, but from suit, for discretionary conduct taken in an official capacity. An action against a public employee in the employee’s official capacity constituted “another way of pleading an action against [the] entity of which an officer [wa]s an agent [.]” Therefore, a judgment against a St. Louis police officer in the officer’s official capacity rendered the St. Louis Board of Police Commissioners liable for damages. That board was statutorily entitled to a defense by the Attorney General. The Attorney General’s employees’ choices in the pursuit of that defense were discretionary acts, immunizing the employees from suit based on those choices. Therefore, assistant attorneys general were not liable for malpractice, and the circuit court did not err in entering summary judgment for the assistant attorneys general on the board’s malpractice claims. The circuit court erred in awarding costs against the board because the board had sovereign immunity not waived by statute, so the Missouri Court of Appeals reversed that award and otherwise affirmed the judgment.
(Overview summary)
City of St. Louis, Missouri, Appellant, vs. Ryan Bertels, et al., Respondents.
Missouri Court of Appeals-Eastern District – ED112415

Post-conviction

Absence of expert was sound strategy
When a movant claimed ineffective assistance of counsel for failure to retain an expert, the movant had to show that a viable defense would have gained support from an expert. A trajectory expert would have supported no viable defense to a charge of murder in the first degree. The elements of murder in the first degree included deliberation, which the state showed with evidence that movant continued to shoot victim after victim was down. The movant’s expert did not negate that evidence and calling a trajectory expert would have supplied evidence that the State did not offer, the absence of which trial counsel emphasized, so trial counsel was exercising a sound strategy. An approved instruction with options for “(alcohol) (or) (drugs)” had support as to alcohol but not as to any other drug, so trial counsel should have objected, but movant had also to show a reasonable probability of a different outcome but for the lapse. The movant could not do so especially considering the circuit court’s curative instruction to disregard the drug reference, which the jury presumptively followed.
(Overview summary)
William Miller-Kirkland vs. State of Missouri
Missouri Court of Appeals-Western District – WD86306

No obligation to depart from client’s directives
The movant alleged that counsel failed to inform movant about pleading not guilty by reason of insanity. A guilty plea waived all issues except whether the plea was the knowing and voluntary. A guilty plea could be not knowing and not voluntary if counsel failed to inform the movant of all defenses. But the circuit court found that counsel informed movant of not guilty by reason of insanity, and defendant chose to plead guilty, and that finding found deference in the Missouri Court of Appeals. Nothing required counsel to enter a plea for movant other than as directed, nor to argue for a finding of not guilty by reason of insanity.
JOSHUA RAINEY, Defendant-Appellant, v. STATE OF MISSOURI, Plaintiff-Respondent.
Missouri Court of Appeals-Southern District – SD38260

Probate

Appointment of successor guardian and conservator denied
In an action to appoint a guardian or conservator, the statutes set forth a preference for family members, but that preference does not apply to a successor. Statutes allow a ward or protectee to file a motion for change of guardian or conservator but not to personally select a successor as a matter of right. Because the movants did not allege or prove that the original guardian and conservator — the public administrator — had lapsed in any duty, the circuit court did not err in denying the appointment of a successor, and substantial evidence supported that ruling.
(Overview summary)
In the Matter of Isaiah Boydston vs. Lorene Boydston; Carla Drummond; and Shanna Burns, Public Administrator
Missouri Court of Appeals-Western District - WD86231

Real estate

Landlord committed anticipatory breach
The plain language of the parties’ lease agreement set forth the tenant’s obligations. Those obligations included providing the landlord with a list of furniture, fixtures, and equipment for the landlord to order and tenant to use in the leased space. That information was in architectural plans that the tenant provided to the landlord, and the landlord was not entitled to a separate list. The record supported a finding that the tenant did not violate an implied covenant of good faith as to third parties, preferred vendors, who were not parties to the contract. The vendor’s difficult nature did not constitute the tenant’s breach. The landlord’s refusal to order the furniture, fixtures, and equipment constituted a material breach of the contract because it prevented tenant from using the space notwithstanding the contract’s requirement of 30 days’ notice. The landlord’s refusal to purchase from the vendor unless the tenant signed an amendment to the lease evidenced a positive intention not to perform its obligations under the lease, which constituted an anticipatory breach.
(Overview summary)
Keystone Hospitality, LLC vs. Capitol Food Group, LLC; Darin S. Frantz; and Kristina M. Frantz
Missouri Court of Appeals-Western District - WD86455