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Case summaries for Sept. 22 - Sept. 28, 2023


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 | Criminal | Employment | Evidence | Insurance | Juvenile | Personal Injury | Post-Conviction | Probate | Real Estate | Utilities | Workers' Compensation


Escape rule applied 
When a person fails to appear, and the failure to appear adversely affects the justice system, the escape rule forfeits any relief based on any claim arising before the failure to appear. Appellant challenges her enhanced sentence as a prior and persistent offender. But appellant’s eight failures to appear caused seven months of delay in sentencing, so the Court of Appeals applies the escape rule to appellant’s challenge. There being no other point relied on, and desiring to encourage respect for the criminal justice system in which appellant seeks relief, the Court of Appeals dismisses the appeal.  
State of Missouri, Respondent, v. Angela Brown, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110944

Judgment affirmed when basis unchallenged 
Statutes provide that termination of parental rights may occur if any one of specified factors exists and if termination is in the child’s best interests. As to grounds for termination, statutes allow termination for neglect, or for failure to rectify the conditions that required the circuit court to exercise its authority to begin with, which includes several factors. Only one such factor is addressed in appellant’s brief, leaving the other factors and the ground of neglect unchallenged, which require no appellate analysis. Appellant claimed addiction to marijuana, but refused to comply with treatment, which shows that future services will not help. As to the child’s best interests, two of the factors that the circuit court found against him have support in the record, and appellant fails to address the other three. 
IN THE INTEREST OF S.L.C., Greene County Juvenile Office, Respondent vs. M.A.C., Appellant
Missouri Court of Appeals, Southern District - SD37952


Provocation of mistrial discussed 
Dismissal is the remedy when the State provokes a mistrial in anticipation of an acquittal to avoid double jeopardy and the appellant did not show such intent. Objectionable testimony from the State’s expert witnesses showed no more than poor judgment from the prosecution, the objectionable fact testimony came from a defense witness on cross-examination, and the defense did not seek a mistrial. When a witness testified about counseling victim, assuring victim that victim’s mother would believe victim, that testimony was not subject to sua sponte exclusion for invading the jury’s province; especially when the defense made strategic use of that testimony in the examination of another witness. The circuit court erred in applying a statute, requiring consecutive sentences, effective only after the offense occurred, so the Court of Appeals remands for the circuit court to exercise its discretion on how the sentences shall run.  
State of Missouri, Respondent, vs. Orlando Kim Ferguson, II, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110037

Habeas remedies ex post facto sentencing 
The writ of habeas corpus issues remedies for an unconstitutional restraint of liberty, which includes sentencing defects related to parol eligibility, even when otherwise waived. An earlier petition raises a presumption against relief, but does not preclude successive petitions, especially when legal error—under the law in effect when the error occurred—is undisputed. Constitutional and statutory provisions restrict sentencing for any offense to the statutes in effect when the offense occurred. Petitioner’s sentence included an enhancement, class X offender status, for which the statutes did not provide when petitioner committed the offense. The Court of Appeals grants the petition and modifies the judgment to remove the class X offender status.  
Bernard Williams vs. Doris Falkenrath, Warden, Jefferson City Correctional Center 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD86437

Skid loader on highway was careless and imprudent 
Statutes require driving with the highest degree of care and create the offense of careless and imprudent driving without defining any of those terms to cover all the facts that statutes cannot specify. Those statutes require any driver to “take painstaking efforts to wisely and judiciously avoid errors or omissions in the manner expected of a very careful person in the same or similar circumstances.” Circuit court did not err when it ruled that appellant violated those statutes when he was driving a skid loader on a highway through rugged terrain without lights or other means of alerting other drivers.  
State of Missouri vs. Rex Braden Gash 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85805

Incapacity to consent shown 
The State showed that appellant knew that victim was incapable of validly consenting to sexual contact by showing the substances that victim consumed and their effect, and appellant’s offer of a ride home to victim and companions, whom he dropped off first to get victim alone. Evidence that appellant falsely held himself out as associated with a ride-hailing service was relevant to appellant’s mental state, without regard to uncharged criminal acts analysis, and appellant showed no prejudice. 
STATE OF MISSOURI, Plaintiff-Respondent v. TYSON J. FAIRLEY, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37719


Attorney fee award affirmed against corrections 
“[W]hen the trial court approves a jury’s verdict, its discretion is practically conclusive.” The Missouri Human Rights Act bars discrimination in employment including hostile work environment. Hostile work environment by non-supervisory co-workers can render an employer liable if the employer had notice, actual or constructive. Constructive notice occurred when plaintiff’s “supervisor witnessed [co-workers’] offensive conduct and, although knowledgeable of the Policy requiring reporting, failed to do so.” The employer also had constructive notice from the years of persistent policy violations and complaints showing that sexual harassment was pervasive. Because clear and convincing evidence supported a finding that the employer acted with reckless indifference, the Court of Appeals declines plain error review of the jury’s conclusion that employer was liable for punitive damages. Punitive damages are ordinarily subject to a comparison with similar cases but not in actions under the Act. The reprehensibility of the conduct and the damages plaintiff suffered supported a punitive damages award to actual damages at 7:1 and did not offend due process. An award of attorney fees at 1.5 times plaintiff’s lawyer’s time had support in the circuit court’s inherent expertise applied to each case’s “unique risk profile [.]” The Act also allows attorney fees for appeal, for which the Court of Appeals remands the judgment to circuit court for a determination of the amount due plaintiff.  
Samantha Kelley, Respondent, vs. State of Missouri, Department of Corrections, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110609


Recording admissible on rebuttal 
The State is entitled to present evidence on rebuttal to “explain, counteract, repel or disprove” defendant’s evidence. The State’s rebuttal included jail telephone recordings that contradicted defendant’s testimony. Those recordings were relevant to defendant’s credibility so the circuit court did not err in admitting them.  
STATE OF MISSOURI, Plaintiff-Respondent v. LAKOTA GILBERT TUCKER, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37806


No payments to decedent’s beneficiary on unambiguous annuity 
Decedent’s Flexible Premium Deferred Annuity Contract provided monthly payments to decedent and, on decedent’s death, to beneficiary for at least 120 months. After 121 months, the contract unambiguously provided no payments to decedent’s beneficiary. Decedent died in month 121. Summary judgment for decedent’s beneficiary reversed and remanded to enter judgment for insurer. 
DOROTHY ROSS, Plaintiff-Respondent v. VENERABLE INSURANCE AND ANNUITY CO., Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37826


Medical emergency immunity discussed 
In responding to a call for emergency medical aid, law enforcement officers discovered that appellant minor had been in possession of alcohol. Those facts supported statutory immunity from prosecution of appellant as a minor in possession of alcohol, but the circuit court did not apply that statute sua sponte when appellant was charged with that offense and others. The other offenses supported the circuit court’s disposition, without possession of alcohol, so appellant could not show plain error. The elements of assault in the fourth degree include an attempt to cause, or recklessly causing, physical injury; so the juvenile officer carried the burden of proof with evidence of recklessness. Recklessness is a gross deviation from reasonable behavior and causes a substantial risk of harm. That describes a 14-year-old biting, kicking, and swinging at law enforcement officers. The circuit court was not required to find otherwise based on informal evidence of post-traumatic stress syndrome.  
In the Interest of: J.M.W. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110708

Personal Injury

Causation negated in medical malpractice claim  
Husband and wife agreed to an in vitro fertilization procedure through a surrogate, with material from wife and husband. Wife delivered all materials used to defendants. “However, the semen sample [defendants] used to fertilize the eggs belonged to Wife’s paramour, rather than Husband.” Husband later tested unsuitable for such a procedure, but defendant failed to inform husband of that test result until seven years after the resulting child’s birth, so husband and surrogate sued. But failure to disclose test results did not cause damages to husband or surrogate because husband, and therefore surrogate, already had reason to know that no material in the procedure came from husband. That is because husband provided his sample at a medical facility, not directly to wife, and knew that unused material remained with defendants. Therefore, even if timely filed, the element of causation in husband’s and surrogate’s claim was negated on defendants’ motion for summary judgment.  
C.H., and S.S., Appellants, v. Infertility Center of Saint Louis, et al., Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111405

No medical judgment alleged, no affidavit required 
Statute requires plaintiff to file an affidavit alleging a breach of the standard of care in any action based on provision of health care services. “[A] health care service [is] when the service involves a question of professional medical judgment.” Plaintiff alleged that a health care provider’s employee leaked protected and personally identifiable information. Those facts can support relief under a variety of theories, but they do not describe a lapse of medical judgment because “it cannot be said that the duty of confidentiality for medical records is a ‘health care service’ under” the statute, so no affidavit was required. Judgment dismissing the action is reversed and remanded.  
J.J., by and through Next Friend, C.W., Appellant, v. Poplar Bluff Regional Medical Center, L.L.C., Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111339


Abandonment limited 
The abandonment doctrine is not a vehicle for relief from failure to meet with movant or any other ineffective assistance of post-conviction counsel. It applies only to an amended motion—either to file late or do nothing at all—and no other facts require any inquiry into abandonment. Appointed counsel timely filed an amended motion, which superseded the initial motion and rendered it null, so the circuit court had to rule on the claims in the amended motion only.  
Jihad A. Spann, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110550

Two experts, two arguments, no issue preserved 
Trial counsel subpoenaed, and sought enforcement of the subpoena on a witness, but movant did not show that the witness would have been willing to testify if found. Those facts show no deficient performance of trial counsel, and movant showed no prejudice because movant did not show that the witness would have supported a viable defense. As to opinions on mental disease or defect, diminished capacity, or mitigation, citing one expert in the motion does not preserve an issue as to another expert; and even if it did, those defenses are unsupported by an opinion on present capacity to participate in a defense in another action.  
Driss Zarhouni vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85758

DNA testing requires evidence to test 
In a claim for DNA testing, the elements include earlier unavailability of testing, evidence on which to conduct the test, and likelihood of a different outcome based on test results. Appellant did not allege that such evidence exists, nor describe how the evidence was unavailable when the State tested it, nor how the test would have changed the outcome against overwhelming evidence of guilt. Appellant did not state a claim on which circuit court could grant relief so the circuit court did not err in dismissing the claim without a hearing.  
State of Missouri vs. John W. Caudill 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85603


Beneficiary deed prevails 
Decedent, through attorney in fact, contracted to sell decedent’s house, but that house was already the subject of a beneficiary deed to respondent. Respondent received the house on decedent’s death by operation of law under the beneficiary deed. A beneficiary deed terminates upon a transfer inter vivos, but the transfer was incomplete when decedent died, so the beneficiary deed remains effective. Statute, governing the performance of executory contracts through decedent’s personal representative, does not change that result. “Life inherently exists with vagaries, and the law can be used, ideally, to mitigate such uncertainty [; f]ailing to take such proactive action, however, the matter was left to chance and Appellant ultimately lost.” 
Missouri Court of Appeals, Southern District - SD37889

Self-dealing unauthorized under durable power of attorney 
Statutes provide that a power of attorney creates a principal/agent relationship with fiduciary duties and bars the attorney-in-fact from making any transfer without express written authorization in the power of attorney. Power of attorney generally authorized respondents to make gifts to principal’s family, which included respondents, but also specifically barred respondents from making transfers to themselves. Spoken authorization, good faith, and substantial compliance are not defenses. Those transfers are void and did not pass title, so the transferred property belongs to the estate of decedent principal. Equitable remedies include reformation of a deed and, unlike law, equity may grant any relief supported by facts either pleaded or tried by consent, even when not prayed for. Trial by consent occurs implicitly on the introduction of evidence relevant to no pleaded issue and appellants’ objection negated consent. Also, the elements of reformation include mutual mistake, and the quantum of proof required is clear, cogent, and convincing evidence; but respondents had evidence only of respondent’s intent, not decedent principle’s intent, and so could not carry the burden of proof. 
Missouri Court of Appeals, Southern District - SD37650 and SD37651

Real Estate

Addendum controlled 
After buyer and lender executed a contract to finance the purchase of property, buyer and lender executed an addendum superseding any conflicting provision in the contract. The addendum replaced the contract’s expansive remedies with much more limited remedies. When a cloud appeared on the property’s title, lender cancelled the contract and lender sought remedies under the contract. On lender’s motion for summary judgment, the circuit court did not err in ruling against the remedies in the contract and limiting borrower’s remedies to those in the addendum. An alternative theory, that the addendum was a trick, was not before the circuit court so it is not before the Court of Appeals.   
Lisa Weber, et al., Appellants, v. Federal Home Loan Mortgage Corporation, Defendant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111226

Genuine dispute remains as to adverse possession 
Rule on summary judgment provides that movant prevails by establishing beyond genuine dispute a set of facts that entitle the movant to a favorable judgment. Rule requires that an affidavit shall state facts based on personal knowledge and movant’s affidavit included hearsay and legal conclusions, but circuit court struck the inadmissible portions, rendering the remainder admissible. In an action for malicious prosecution of a claim, the elements include malice and defenses include probable cause—a reasonable belief in the facts supporting the claim. When the claim was based on adverse possession, those facts must relate to the qualities of the possession: “(1) hostile, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for a period of ten years.” Those qualities are unaddressed in movant’s affidavit because the affidavit refers only to possession for ten years, without negating permissive use, so those material facts of the claim and defense remain in dispute. The circuit court erred in granting the motion.  
Gary Joe Lemon vs. Chad N. Hopkins and Stacie A. Hopkins 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85652


Securitization order affirmed 
Statutes allow public utilities to issue, subject to Public Service Commission approval, low-return low-risk securities through an assignee to finance certain costs. Those costs include addressing anomalous weather events like a winter storm. A challenge to the reasonableness of a Commission ruling is meritless when it does not include a challenge to findings of fact that support the ruling. The Commission need not accord any weight to appellant’s last-minute exhibit. Appellant treatment of an associated tax deduction was unreasonable. Appellant did not show that the Commission’s choice of a discount rate for estimating present value was unreasonable. The utility’s recording of costs as short-term debt did not require the Commission to order short-term rates for the securities. Statutes require the order to state that the Commission will reconcile amounts authorized with amounts incurred but do not require the Commission to specify a procedure, “a predictive undertaking that would not be feasible. ” 
In The Matter of The Application of Evergy Missouri West INC d/b/a Evergy Missouri West for a Financing Order Authorizing The Financing of Extraordinary Storm Costs Through an Issuance of Securitized Utility Tariff Bonds, Missouri Public Service Commission; Evergy Missouri West INC. vs. Office of Public Counsel 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85958

Workers’ Compensation

Credibility determines disability 
The Second Injury Fund had no burden of proof and could prevail without offering evidence. Claimant sought benefits for permanent total disability, but the Labor and Industrial Relations Commission awarded benefits for permanent partial disability because it determined that claimant’s experts were not credible, and that determination receives deference at the Court of Appeals. A claim for benefits from the Second Injury Fund requires proof of pre-existing injuries of specified types and of a minimum number of weeks in permanent partial disability, but claimant’s pre-existing injuries did not reach that minimum, so whether the injuries were of the specified type is irrelevant.  
Pamela McCoy, Appellant, v. Meridian Medical Technology, New Hampshire Insurance Co., and Missouri State Treasurer, as Custodian of Second Injury Fund, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111299