Case summaries for Sept. 18-24, 2026

Administrative | ADR | Appellate | Business | Criminal | Orders of protection | Personal injury | Post-conviction | Probate | Utilities

Administrative

No error preserved
Appellate courts reviewed agency decisions, not intervening circuit court judgments. On the exclusion of evidence, an offer of proof was necessary to preserve error, and the offer of proof had to be sufficiently specific for a reviewing court to identify the disputed evidence and the foundation for its admissibility. On the admission of evidence, a contemporaneous objection was necessary to preserve error. The agency disciplined the appellant’s license, the circuit court affirmed that decision, and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
David E. Smock v. Missouri State Board of Registration for the Healing Arts
Missouri Court of Appeals, Western District - WD88558

ADR

Federal Arbitration Act was the parties’ choice of law
"Missouri courts generally enforce choice-of-law provisions.” The parties’ multiple agreements, including separate arbitration agreements, all included choice of law provisions naming the Federal Arbitration Act. No waiver of that provision occurred when an initial motion to compel arbitration did not cite the Federal Arbitration Act but a promptly filed amended motion did. That choice of law nullified a notice requirement in the Missouri Uniform Arbitration Act. The circuit court erred when it denied the appellants’ motion to compel arbitration for failure to comply with the Missouri notice requirement. The Missouri Court of Appeals reversed that ruling, remanded the action, and ordered the circuit court to compel arbitration.
(Overview summary)
Jeannie Ashelin and Corey Scheideman, Plaintiffs/Respondents, v. Ed Napleton St. Louis Imports, Inc., d/b/a Off Lease by Napleton, et al., Defendants/Appellants
Missouri Court of Appeals, Eastern District - ED114278

Appellate

Appellant’s brief required dismissal
Appellate courts did not convict circuit courts of error on arguments not made in circuit court, and the appellant did not show what arguments the appellant made in circuit court. Failure to comply with rules of appellate procedure jeopardized the appellate courts’ neutrality, preserved nothing for review, and constituted grounds for dismissal. The appellants had to file the record on appeal, including the legal file, including all documents necessary to rule, but the appellant omitted the decree of dissolution that was the source of the parties’ dispute. In the appellant’s brief, statements of fact had to favor the judgment, points relied on had to set forth a theory for reversal, arguments had to show the interaction of law and fact raised in — and only in — the points relied on. The Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Diane K. Wilson, nka Diane K. Almstedt, Appellant, v. Stephen D. Wilson, Respondent.
Missouri Court of Appeals, Eastern District - ED114135

No participation, no preservation
Appellate courts seldom found errors in rulings as to which the appellants never objected, or failed to file after-trial motions, because circuit courts were due a chance to correct errors themselves. The day before trial, the appellant filed a notice. The notice waived all participation in the trial but purported to preserve any error at trial. And the appellant did not appear for trial, so whether the appellant’s appearance at trial would have required the appellant to assert the Fifth Amendment was mere conjecture. Cumulative plain error review required a showing of errors, and those errors had to be obvious, but no such error appeared in the “well-considered, detailed judgment [.]” If the judgment omitted required findings of fact, the remedy was a motion to amend. The appellant did not file any after-trial motions. The appellant preserved nothing for appeal, so the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Heather Lynn Ruel, Respondent, v. Adam Roland Ruel, Appellant.
Missouri Court of Appeals, Eastern District - ED113943

Business

No submissible case on breach of fiduciary duty and fraudulent misrepresentation
After the discovery deadline, the plaintiff changed its theory of damages through supplemented responses to discovery. A motion in limine was not sufficient to preserve an objection to a late-disclosed witness; the objection had to be renewed at trial when the testimony was offered. The previous theory became obsolete, so no prejudice to the defendant resulted when the circuit court quashed a notice of deposition on the obsolete theory. And the defendant had remedies available that it did not seek, so that ruling was no abuse of discretion. Continuing objections could preserve error without further objecting but, otherwise, affirmative statements of “no objection” to documents offered at trial under the new theory of damages waived all appellate review. Instructions, approved or not, had to submit ultimate facts for the jury’s determination; otherwise, they constituted roving commissions. That described the defendants’ proffered instructions on the affirmative defenses of waiver and estoppel because they merely recited principles of law, so the circuit court did not err in rejecting them. The merger doctrine limited damages to one award per wrong. Lack of a timely objection to an instruction on that basis waived all but plain error review. Plain error review was discretionary. The elements of plain error review included manifest injustice. No injustice occurred, as shown by awards of damages less than the evidence could have supported, so the Missouri Court of Appeals exercised its discretion against conducting plain error review of the instruction. And besides, the jury did not make three awards on one theory, it made three awards on three theories, one per theory. But two of those theories should not have gone to the jury because the plaintiff failed to support the elements of those two claims. The elements of a claim for breach of fiduciary duty included the existence of a fiduciary relationship. A fiduciary relationship existed when a “subservient party voluntarily cedes control to and places confidence in the dominant party with the reasonable expectation that the dominant party will act for the benefit of the subservient party.” That did not describe the relationship between the parties, an automotive dealer and an automotive auction house, because no evidence showed that the plaintiff ceded decision-making to the defendants. The elements of a claim for fraudulent misrepresentation included reliance on a representation that was false when made. No evidence showed that the defendants made any false representation. Specifically, membership in a professional organization did not communicate adherence to that organization’s standards. And an insignificant percentage of failure to perform a promised service could have shown a breach of contract but did not show an intent not to perform when the defendant made the promise. On those claims, the circuit court erred in denying the defendants’ motion for judgment notwithstanding the verdict, so the Court of Appeals reversed the plaintiffs’ verdicts for breach of fiduciary duty and fraudulent misrepresentation. The Court of Appeals otherwise affirmed the judgment.
(Overview summary)
J. Nuckolls, Inc. d/b/a Fenton Auto Sales, Respondent, v. America's Auto Auction St. Louis, Inc., et al., Appellant.
Missouri Court of Appeals, Eastern District - ED113904

Criminal

Disqualification of prosecuting attorney’s office discussed
“[O]nly in rare circumstances should a circuit court interfere with the democratic process and override the voters’ choice as to who is best suited to represent the interests of the people as prosecuting attorney, even with respect to a single case.” Appellate courts did not review rulings never sought. The appellant did not ask the circuit court to rescind its vacatur as to a specific assistant prosecutor, and for argument on the motion but not an evidentiary hearing, so the appellant preserved no error as to those matters. The appellant asked to disqualify a prosecuting attorney’s entire office, and the circuit court granted that relief, but then vacated that order. The appellant asked the circuit court to change its vacatur as to the entire office based on one assistant prosecutor’s former representation of the appellant in another action. The appellant did not show any conflict of interests and, even if the appellant had shown a conflict of interests, the appellant could not impute that conflict to the prosecuting attorney’s office. Also, the appellant showed no appearance of impropriety once the assistant prosecutor withdrew, never having used any protected information, and after only de minimis participation. Criminal defendants’ right to present a complete defense included a presumption that the exclusion of the defendant’s evidence was prejudicial but the State showed that the disputed evidence was cumulative and not probative of the relevant time frame. The Missouri Court of Appeals affirmed the convictions.
(Overview summary)
State of Missouri v. Francis Henry Kempker
Missouri Court of Appeals, Western District - WD87593

Accomplice liability shown
Accomplice liability rendered co-defendants equally liable if one so much as encouraged the other. The record included evidence that the defendant helped steal goods and tried to sell some of them. That evidence was sufficient to convict the appellant of stealing more than $750. The elements of plain error included manifest injustice, meaning outcome-determinative. The circuit court included “physical interference” in an instruction on resisting appellant’s arrest. That language was not outcome-determinative, because the appellant did not deny using physical force, so the Missouri Court of Appeals denied plain error review. Circuit courts’ authority over their records continued after authority over judgments ended, so circuit courts could amend their judgments nunc pro tunc any time. The circuit court corrected the appellant’s sentence nunc pro tunc, mooting that point on appeal. The Court of Appeals affirmed the convictions.
STATE OF MISSOURI, Respondent v. JUSTIN LEVI WATERDOWN, Appellant
Missouri Court of Appeals, Southern District - SD39176

Child victim’s testimony discussed
The elements of plain error review included an obvious error. No obvious error occurred when a fact witness testified about questioning techniques without commenting on anyone’s veracity. The Missouri Court of Appeals declined plain error review. The elements of child molestation in the second degree as charged included contact with the victim’s anus, for which the State offered evidence that the defendant only made contact with the victim’s buttocks. That evidence did not support that element so the circuit court erred in denying the defendant’s motion for acquittal on that count. “Regardless of a child witness’s limitations, prosecution of criminal cases is not undertaken by children, but by adults who have been educated in the criminal law, criminal proceedings, and evidence. A child witness’s limitations do not lower the State’s evidentiary bar for a criminal conviction.” The Court of Appeals reversed that conviction, remanded the action for a judgment of acquittal on that count, and affirmed the remaining convictions.
STATE OF MISSOURI, Respondent v. RICKY LEE THURMAN, Appellant
Missouri Court of Appeals, Southern District - SD38739

For unlawful use, the State need not prove that defendant pointed the weapon at victim
The elements of unlawful use of a weapon as charged included exhibiting the weapon in an angry or threatening manner. “[A] defendant need not actually point the gun at a victim to satisfy the element of acting in an angry or threatening manner[,]” And the evidence supported a finding that defendant did point a firearm at victim. The Missouri Court of Appeals affirmed the convictions.
STATE OF MISSOURI, Plaintiff-Respondent v. CAMEO LORENZO GILMORE, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD39181

Orders of protection

Distance not shown
Appellate review of criminal convictions viewed all evidence and inferences in the light most favorable to the verdict but did not employ unreasonable, speculative, or forced inferences. The elements of violating a full order of protection included “entrance upon the premises of the petitioner’s dwelling unit … or being within a certain distance of the petitioner[.]” The full order of protection against defendant required the defendant to stay a certain distance from victim petitioner. The State’s evidence showed that the defendant was less than that distance from petitioner’s dwelling unit but was silent as to whether defendant was in the dwelling unit at the time. The Missouri Court of Appeals reversed the conviction.
STATE OF MISSOURI, Plaintiff-Respondent v. MEGAN A. HAAG, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD39203

Personal Injury

Appellant’s summary judgment was not inextricably entwined with respondent’s motion
On motions for summary judgment, parties prevailed when “the motion, the response, the reply and the sur-reply show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Defending parties could do so by showing that claimant parties could not support any element of the target claim. A statute waived political subdivisions’ sovereign immunity for property in a dangerous condition. Sovereign immunity was not a defense, it was part of the plaintiff’s case to plead and prove. The plaintiff alleged that her injury resulted from someone impelling her into the defendant school district’s gymnasium wall during a race. Those allegations did not describe a dangerous condition of property, and the plaintiff offered no additional undisputed facts, so the summary judgment record on the defendant’s motion showed no dangerous condition. On that record, the law entitled the defendant to a favorable judgment. The plaintiff alleged that the wall was defectively designed in her own motion, but denial of her summary judgment motion was interlocutory and not subject to appeal. And the plaintiff’s motion offered different facts and theories so it was not inextricably intertwined with the defendant’s motion. Therefore, the denial of the plaintiff’s motion was not subject to review. The Missouri Court of Appeals affirmed the judgment for the defendant.
HAILEY J. UNRUH, Plaintiff-Appellant v. WILLOW SPRINGS R-IV SCHOOL DISTRICT, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD39136

Post-conviction

No appointment, no abandonment, no third-party interference, no final judgment
Appeal was possible only from a final judgment. A final judgment was a ruling that disposed of all claims, whether in the initial motion or a superseding amended motion. The amended motion stated “differing, and additional,” claims from the initial motion but was not timely. For either motion, timely filing was an element, without which circuit courts had no authority, subject to court-made exceptions. Exceptions included third-party interference but that exception applied only to initial motions and did not apply to amended motions. Exceptions for amended motions included abandonment, meaning no timely filing by counsel. But abandonment was limited “consistently, repeatedly, and emphatically” to appointed counsel. When counsel voluntarily entered an appearance without appointment, no appointment was necessary, and abandonment did not apply. Therefore, the amended motion was outside the circuit court’s authority. Nevertheless, the circuit court issued judgment on the amended motion only, and not the initial motion, so that judgment was not final. The Missouri Court of Appeals dismissed the appeal and remanded the action to the circuit court.
(Overview summary)
Donald E. Nussbaum v. State of Missouri
Missouri Court of Appeals, Western District - WD87727

No objection, no deficient performance
The elements of a claim for ineffective assistance of counsel included deficient performance, against which the law presumed, and which the State could negate with evidence of a reasonable trial strategy. Reasonable trial strategy presumptively included choosing against making an objection to the State’s questioning even when plainly subject to objection. “[The] decision not to object was to avoid attracting additional attention to the improper questions and corresponding responses. This is a commonly recognized and accepted trial strategy.” Evidence to the contrary did not enter into appellate review. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment.
NICHOLAS J. BEROS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD39203

Probate

Standing to challenge trust administration shown
The appellants abandoned challenges, and the grounds for challenges, to rulings not cited in a point relied on. Anyone bringing any action had to show standing, meaning a sufficient interest in the subject matter. For parties bringing an action related to the administration of a trust, standing generally depended on the action and the terms of the trust. For reformation or other modification, only trustees and beneficiaries had standing. The plaintiff brought an action related to a trust that specifically excluded the plaintiff from any benefit. Whether success in an action could create such an interest was irrelevant. The circuit court dismissed the plaintiff’s petition to intervene in the administration, and for breach, of trust; and the Missouri Court of Appeals affirmed that ruling. The absence of an adequate remedy in probate, which the plaintiff could show by pursuit or futility of a remedy in probate division, was an element of tortious interference with an inheritance. Other elements included underlying tortious conduct that caused the interference, which the plaintiff adequately pleaded. The circuit court dismissed that claim, so the Court of Appeals reversed that ruling and remanded the action.
(Overview summary)
Ronald Jennings v. Debra J. Miner, et al.
Missouri Court of Appeals, Western District - WD88464

Utilities

Easement enforced, damages reversed
Rule and statute extended the circuit court’s authority over its judgment within which to issue an amended judgment, which it did within that time, vacating the original judgment and determining the matters subject to appeal. Appeal did not have to await resolution of attorney fees. Respondent property owners acquired land subject to appellant gas utility’s recorded easement for a pipeline, the terms of which included a tap and residential gas service to owners’ predecessors. The conveyance’s plain terms showed that the easement was real, meaning applicable to the land, rather than personal, meaning applicable only to parties to the conveyance. Therefore, the obligations of the conveyance bound successors to the original parties, replacement of the residence notwithstanding. On motions for summary judgment, citing stipulated facts, the circuit court found in the owners’ favor. But the only support for breach of contract damages was an exhibit attached to the owners’ proposed judgment, not in the stipulated facts. The Missouri Court of Appeals reversed the damages award and otherwise affirmed the judgment.
(Overview summary)
Paul and Erin Tharp v. Southern Star Central Gas Pipeline, Inc.
Missouri Court of Appeals, Western District - WD88122