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Case summaries for Sept. 17 - Sept. 23, 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 | ADR | Civil | Evidence | Orders of Protection | Personal Injury | Post-Conviction | Real Estate | Workers' Compensation


Sunshine Law Violation Found
A transcript of an open meeting is an open record and does not jeopardize an ongoing investigation. Sunshine Law requires certain entities to disclose records in its custody but not records in another entity’s custody. Statutory provisions for an attorney fee award relate only to the requestor’s interaction with the entity whose records were sought and not for efforts to get records from another entity. Sunshine Law includes a civil penalty for a purposeful violation, meaning “a conscious design, intent, or plan to violate the law.” Evidence that supported a finding of purposeful violation included appellant’s knowledge of the law and decisions: not to share an attorney general opinion letter with appellant’s special counsel, and not to seek its own attorney general opinion letter. The weight of the evidence was not against that finding.
Glasgow School District vs. Howard County Coroner
(Overview Summary)
Missouri Court of Appeals, Western District - WD83990


No Stay for Arbitration Without a Motion to Compel Arbitration
Missouri statutes and United States statutes allow an interlocutory appeal from circuit court’s denial of a motion to compel arbitration. But no such order exists, because appellants sought none; appellants sought only an abeyance of circuit court action pending litigation in United States District Court in Massachusetts.
Joseph Elyachar and Michael Elyachar vs. Big Bob's Flooring Outlet of America, Inc., and Floors & More, LLC and Vincent Virga
(Overview Summary)
Missouri Court of Appeals, Western District - WD84118

Arbitration Not Mandatory When Not Offered
Federal Arbitration Act provides that the existence of an agreement is a matter of State law. Employer’s form described employer’s policy on arbitration regardless of employee’s agreement, and asked employee to acknowledge receipt of that policy, but did not ask whether employee agreed. “They summarily state that an agreement to submit to an arbitration process exists, but, in the absence of evidence of an invitation to assent, the provisions are not an ‘offer’ to submit to an arbitration process.” Because no offer occurred, no acceptance occurred, and no agreement to arbitration exists. Circuit court did not err when it denied employer’s motion to compel arbitration.
Demetria Trunnel vs. Missouri Higher Education Loan Authority
(Overview Summary)
Missouri Court of Appeals, Western District - WD84114


Verified Petition Does Not Establish Material Fact
Adverse possession is difficult to prove by summary judgment because the parties’ intentions are so great a part of that theory. The element of actual possession includes actual control and the intent to exclude all other persons. Conclusory assertions do not support themselves and must have evidence in the summary judgment record to establish them. “[A]n allegation from one’s own verified petition is not sufficient documentation to support a statement of uncontroverted fact.” Survey drawing and aerial photographs showed disputed land but not actual possession.
Lemay Place Condominium Association, Respondent, v. Cortez Frank, Appellant
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109478


Error Waived in Opening Statement
Defendant waived error as to the admission of evidence by describing that evidence in opening statement and stating “no objection” to the offer of that evidence. Circuit court’s decision against sua sponte intervention in offers of evidence did not result in plain error.
State of Missouri vs. David Paine
(Overview Summary)
Missouri Court of Appeals, Western District - WD83500

Orders of Protection

Renewal Affirmed
In an action for renewal of a full order of protection, statutes provide that circuit court remains vested with personal jurisdiction from the earlier order. Appellant did not show that renewal of the full order of protection violated access to open courts in Texas. Evidence of appellant’s further violence and respondent’s resultant fear supported renewal of a full order of protection. Expiration of an order does not moot an appeal from the judgment making the order when another judgment has again renewed the order.
K.C. vs. Kent Chapline
(Overview Summary)
Missouri Court of Appeals, Western District - WD83881

Personal Injury

No Liability for State University
Plaintiffs charged State university with misrepresentation of mental wellness services for students under the Missouri Merchandising Practices Act. That Act does not apply to State entities. Violations of the federal Clery Act does not support a private right of action including actions in contract or negligence based on standards under the Clery Act.
Melissa Bottorff-Arey, On Her Own Behalf, and as Personal Representative of the Estate of, and as Parent of Alexander David Mullins, Deceased, and Suzanne and Michael Thomas, on Their Own Behalf, and as Personal Representative of the Estate of, and as, Parents of Joshua Michael Thomas, Deceased vs. Truman State University; The Fraternity of Alpha Kappa Lambda, Inc.; Brandon Grossheim; Alpha Kappa Lambda, XI Chapter; Lou Ann Gilchrist; and Truman State University Campus Security Authorities
(Overview Summary)
Missouri Court of Appeals, Western District - WD84006

No Claim on Sale of Ammunition
The federal Protection of Lawful Commerce in Arms Act bars the sale of firearms and ammunition to illegal aliens, pre-empts State law, and limits private actions to knowing or negligent violation of its provisions. In an action for negligent entrustment, the elements include the incompetence of the person entrusted. The person entrusted with ammunition was a third party to the retail sale, and the incompetence was immigration status, which plaintiff did not allege was knowable to defendant. The plaintiff therefore did not allege facts that described a claim for negligent entrustment. A claim for negligence per se assumes that defendant owed some duty to someone, and no duty to protect anyone from crime exists in Missouri law, with exceptions inapplicable here. And the "federal criminal statutes related to the sale of firearms and ammunition [do not establish] a duty or standard of care for a negligence per se claim in Missouri’s state courts." Judgment resolving all claims between two parties was subject to certification for appeal.
DEBORAH ELKINS, RUSSELL HAMPTON, and SYDNEY CROSBY as next friend of O.H., a minor, Appellants vs. ACADEMY I, LP, JOHN DOE, and NYADIA BURDEN, Respondents
Missouri Court of Appeals, Southern District - SD36947


Relief Due to Abandonment Denied
Failure to file timely an initial motion waives all rights to relief. An initial motion does not require assistance, or appointment, of counsel; lack of appointed counsel therefore does not excuse the late filing of an initial motion. When circuit court has dismissed a motion for failure to prosecute, movant may seek a remedy by a motion for relief due to abandonment. The passage of time does not substitute for proof of allegations. A motion that raised claims under Missouri case law did not preserve claims under federal constitutional law.
TIMOTHY P. CABLE, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36968

Appellate Counsel Caused No Prejudice
On the second day of trial in the underlying criminal action, in response to movant’s objection, the State endorsed a witness to authenticate copies of forged checks. The circuit court admitted the witness’s testimony, and appellate counsel did not challenge the ruling, so movant alleged that appellate counsel was ineffective. But the circuit court committed no error, and the outcome of the appeal would have been the same, so movant could show no prejudice.
Missouri Court of Appeals, Southern District - SD36895

Objections Are a Strategic Choice
“There are countless ways to provide effective assistance in any given case.” Among those ways are the strategic choices of objecting or not objecting to the State’s questioning. When defendant is doing well under questioning, an objection may undercut the defendant’s credibility. A matter may be better addressed through cross-examination than in an objection. An objection may draw more attention to testimony than desirable.
ALLEN TUCKER, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36845

Real Estate

Draft Without “Deem”
The parties disputed a lease contract “consisting of at least nine separate instruments negotiated by a changing cast of parties and their lawyers over five different decades [.]” Lease provided that, on tenant’s termination of business, “the lease shall be deemed immediately terminated [.]” “[T]he word 'deem' denotes a legal fiction. Modern legal drafting authorities recommend against use of the word for precisely this reason.” Even slight, or in retrospect inadequate, consideration will support a contractual promise.  
Jerseyville Mall, L.L.C., Appellant, vs. Shop 'N Save Warehouse Foods, Inc., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109357

Unrecorded Lien Survives Tax Sale
Missouri Constitution’s Hancock Amendment bars political subdivisions from levying a tax without voter approval, but a sewer district’s bill based on owner’s voluntary connection to the system is a fee, not a tax. Statutes generally extinguish inferior assessments upon a delinquent tax sale, but specifically give the sewer district’s bill the same priority as State and county tax, which are superior to all other liens, and exempt from recording requirements, even surviving a tax sale. Circuit court did not err in certifying judgment, resolving claims against all parties but one, for appeal.  
Eclipse Property Development LLC, Appellant, vs. Fareed Ammari, et al., Respondents
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109298

Workers' Compensation

No Evidence Needed to Deny Claim
Claimant did not show that the State thwarted his attempt to amend the claim. Claimant has the burden of proving a claim, first by presenting evidence to support each element of the claim, then by persuading the factfinder to believe that evidence more than evidence to the contrary. “A decision against a claimant, as the party with the burden of proof, does not require any evidence to support it.” Failure to object to the foundation for an expert’s opinion at hearing waives a challenge to the substantial and competent quality of that opinion on appeal.
Missouri Court of Appeals, Southern District - SD36826