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Case summaries for Sept. 18 - Sept. 24


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.

Civil | Corporations and Other Entities | Criminal | Mental Health | Orders of Protection | Personal Injury | Post-ConvictionWorkers' Compensation


Grant of New Trial Must State Grounds
Rules require any order granting a motion for new trial to specify the grounds for that relief, that failure to do so raises a presumption of error, and assigns the burden of supporting the order to respondent on appeal. Discretionary authority does not support such an order and the motion charged only discretionary authority for new trial. “[T]he trial court’s [authority] to grant a new trial is discretionary only as to questions of fact and matters affecting the determination of the issues of fact. There is no discretion in the law of the case.” Order granting new trial reversed.  
Missouri Court of Appeals, Southern District - SD36295

Witness Undisclosed in Discovery Barred from Trial
Plaintiff’s mention of witness in the petition “is no substitute for the rigors of the discovery process.” Failure to identify that witness in response to discovery, and scheduling orders, supported exclusion of that witness’s testimony at trial as a sanction for disclosing that witness just five days before trial. 
Sean Tate vs. Troy Dierks
(Overview Summary)
Missouri Court of Appeals, Western District - WD82725

Corporations and Other Entities

Preponderance of the Evidence Shows a Joint Venture
A joint venture is a partnership by contract, the essentials of which plaintiff proved with a preponderance of the evidence that the participants shared profits and control, despite “uncertainty in the duration, or want of some definiteness of the details of enterprise [.]” Though expert testimony on damages blurred the distinction between a corporation and its owner, “the jury understood that it was in the context of his wholly-owned company’s damages.” Once that expert evidence is entered into the record, it can be part of a submissible case. An unwritten motion for directed verdict at the close of plaintiff’s evidence, renewed at the close of all evidence, preserved issues for appeal.
Toobaroo, LLC vs. Western Robidoux, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83169


Ability to Pay Relevant to Monetary Conditions of Release
Statutes governing declaratory relief provide that a petition “need only allege facts invoking substantive legal principles that entitle the petitioner to relief” under any theory, as long as the law offers no other adequate remedy. Rule, providing that excessive conditions of relief are subject to remedial writ, does not constitute an exclusive remedy. Orders denying a petition for writ of mandamus without opinion do not constitute decisions on the merits, and so do not constitute an adequate remedy at law. Public interest prevails over mootness of appellant’s action for declaratory judgment. Appellant stated a claim for declaratory judgment, when he alleged that circuit court set monetary conditions for his release without considering his ability to pay, so circuit court erred in dismissing the petition. Remanded for circuit court to make a record on the allegations and apply rules to the facts found.
Cordell Nichols, Jr., Appellant, vs. Thomas McCarthy, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108877

Circumstantial Evidence Supports Conviction of Stealing by Disposing of Stolen Property
Statutes provide that stealing includes disposing of property known, or believed, to be stolen, with the intent to deprive the owner of that property. The State proved those elements with evidence that defendant went to a cache of stolen property, took possession of some, and pawned some. “[C]ircumstantial evidence ... is afforded the same weight as direct evidence upon appellate review.”
STATE OF MISSOURI, Plaintiff-Respondent vs. DEBRA KAY BAUMGARTNER, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36481

Mental Health

Non-DSM Diagnosis Okay
Statute requires that expert testimony stand on data that such experts reasonably rely on. The Diagnostic and Statistical Manual of Mental Disorders is one such resource, but not the exclusive resource, as shown by expert testimony. In an action to confine appellant as a sexually violent predator, the State offered evidence that “other specified paraphilic disorder, non-consent” was a reliable and recognized diagnosis, which constitutes a mental abnormality, and appellant has it. The jury must unanimously find that appellant has a mental abnormality, but need not unanimously name that mental abnormality. Circuit court did not abuse its discretion in ruling accordingly.
In the Matter of the Care and Treatment of L.D., a/k/a L.E.D., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108002

Orders of Protection

Alarm Was Subjective and Objective
Statutes allow a full order of adult protection for stalking, the elements of which include fear of physical harm, both to the victim and to a reasonable person. Evidence of appellant’s conduct, beyond “normal social interaction” and into “alarming conduct [that] no longer had a legitimate purpose [,]” included appellant’s increasingly fervent and delusional declarations of appellant’s past life with victim, and surprise appearances at victim’s place of worship, despite victim’s rejection of appellant’s advances.
N.C., Respondent, vs. Y.Q.L., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108207

Personal Injury

Acceptance Doctrine Applied
The acceptance doctrine provides that a subcontractor who has completed their project, and returned control of the project area to the general contractor, has no liability for damages from any defect to any third person. Defendant subcontractors’ affidavits established that they relinquished control of the completed project area to the general contractor six months before third person plaintiff sustained an injury there. Evidence that subcontractors did other work on other parts of the premises raised no genuine dispute as to acceptance. A contract claim as a third-party beneficiary does not appear in the petition, so it cannot appear on appeal, and the defendants’ contract negated any claim under an intended third party beneficiary. Summary judgment for subcontractor defendants affirmed.
Joseph Zygler, Appellant, vs. Hawkins Construction, et al., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108543


No Prejudice Shown
The circuit court’s credibility determinations are subject to “absolute deference on appeal.” The circuit court determined that movant was not credible when he testified that, but for trial counsel’s advice, movant would have waived a jury trial in favor of a bench trial. Trial counsel did not object to propensity evidence, but movant did not show that circuit court relied on propensity evidence. Therefore, movant showed no prejudice from trial counsel’s performance.
RAYMOND SPENCER HOOD, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36370

Workers’ Compensation

Standards for Proving Causation and Date of Injury Explained
Statutes governing occupational diseases start the time for filing a claim when the disease is reasonably discoverable, which is “when an employee is medically advised that he or she can no longer physically continue in the suspected employment.” When the Labor and Industrial Relations Commission concluded that the date of the injury was when disabling effects first appeared, the Commission exceeded its authority, and the resulting decision lacked support in substantial and competent evidence on the record as a whole. Claimant must present “substantial and competent evidence that they have contracted an occupationally induced disease rather than an ordinary disease of life [,]” and that such occupational disease is the prevailing factor in claimant’s disability. The statutes require claimant to show a probability, not a medical certainty, and do not demand an opinion based on epidemiological or ergonomic studies. As a matter of law, the absence of such studies from the record, of asbestos from the cause of death on the death certificate, and comment on asbestos in a pathology report—and an expert’s reliance on those absences—are not probative. When the Labor and Industrial Relations Commission discounted claimant’s evidence based on the absence of such studies, the Commission exceeded its authority, and the resulting decision lacked support in substantial and competent evidence on the record as a whole. Appellant cited the wrong rule for appellant’s challenge, but employed the required analysis.
Joan Moore Hayden, Surviving Spouse of Marc Hayden (Deceased), Appellant, vs. Cut-Zaven, Ltd. and Papillion, Ltd., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108695