Case summaries for Sept. 27-Oct. 3, 2024

Appellate | Civil | Criminal | Employment | Family | Personal Injury | Probate | Post-Conviction | Insurance

Appellate

Appeal from interlocutory judgment too late 
Rule provided that a timely notice of appeal was necessary for an interlocutory appeal. A statute permitted the state to file an interlocutory appeal from a partial judgment but required filing a notice of appeal within five days of the judgment’s entry. The state did not meet that deadline so the Missouri Court of Appeals dismissed the appeal. 
STATE OF MISSOURI, Appellant v. ANDREW T. MOORE, Respondent 
Missouri Court of Appeals-Southern District - SD38196

Civil

Res judicata applied sua sponte, attorney fees awarded 
The doctrine of res judicata barred any later action between the same parties in their same capacities over the same events already decided on the merits in earlier litigation. In an earlier action for dissolution of marriage, the appellant filed a motion for contempt that sought damages caused by the respondent’s failure to file a satisfaction of judgment, and the circuit court denied the motion on the merits. The appellant filed a later action for damages for failure to file a satisfaction of the same judgment. The circuit court did not err in applying res judicata sua sponte because that doctrine protected the courts’ efficient administration of justice. The Missouri Court of Appeals remanded the action to determine attorney fees for a frivolous appeal. 
(Overview summary) 
Joseph William Montanari vs. Kathleen Clair McKay-Montanari 
Missouri Court of Appeals-Western District - WD86755

No agreement needed for jury trial 
A jury was generally the rule in circuit court and waiver is the exception. Statute governing review de novo of an associate division judgment in circuit court, provided, “The trial de novo shall be governed by the practice in trials before circuit judges, except that by agreement of the parties the case may be tried by a jury of not less than six persons.” The agreement of the parties applied to the number of jurors specifically, not the right to a jury generally. The appellant specifically requested a jury trial and objected to a bench trial, but the circuit court conducted a bench trial anyway. The Missouri Court of Appeals reversed the judgment and remanded the action for a jury trial. 
(Overview summary) 
Lee Brown vs. Michael D. Trent 
Missouri Court of Appeals-Western District - WD86651

New trial ordered without specified grounds presumed erroneous
A circuit court retained authority over its judgment until specified events occurred, each of them beginning with a final judgment. A final judgment had to be denominated as a judgment and a document denominated as an order was no substitute, even if it stated that the circuit court was rendering judgment. Once the circuit court issued a document denominated as a judgment, the time started, and the circuit court’s sua sponte order for a new trial was timely. The rule governing new trials required the circuit court to specify its grounds, and failure to comply raised a presumption of error, subject to rebuttal based on the motion for new trial and the respondent’s brief. Such rebuttal is impossible when the circuit granted no motion for new trial, but heard argument on such pending motions, and ordered a new trial sua sponte. Therefore, the Court of Appeals reversed the grant of new trial. The circuit court’s authority over the judgment ended with the filing of a notice of appeal so the circuit court’s judgment notwithstanding the verdict was void, so the Court of Appeals reversed that ruling, too. The Court of Appeals remanded the action for further proceedings including an award of attorney fees as provided by contract.
(Overview summary) 
Jon Yust, et al., Appellant, v. Fasterhouse, et al., Respondent.
Missouri Court of Appeals, Eastern District - ED111340

Criminal

Child molestation conviction affirmed 
Statutes providing the foundation for admitting a child victim’s out-of-court statement constitute alternative, not cumulative, elements. On a charge of child molestation in the first degree, the victim’s interview statements and trial testimony supported all elements, and later additional recall did not constitute recantation. That included the motivation of sexual gratification. The Missouri Court of Appeals affirmed the conviction. Impeachment of a peripheral witness on a collateral matter was inadmissible. 
(Overview summary) 
State of Missouri vs. Frank G. Washburn, Sr. 
Missouri Court of Appeals-Western District - WD86179

Warrantless seizure of vehicle okay 
The defendant could commit the unlawful use of a weapon in any one of various ways designated as independent alternatives by the word “or.” Those alternatives included shooting at a habitable structure. Substantial evidence supporting probable cause to believe that a vehicle had been used in the commission of an offense included “the proximity of the vehicle to both the scene of the shooting and the area where Defendant was arrested,” the defendant’s flight, and the defendant’s possession of car keys. The circuit court did not err in denying the defendant’s motion to suppress. 
STATE OF MISSOURI, Respondent vs. DEANDRE WALLS, Appellant OF MISSOURI, INC., Defendants-Respondents 
Missouri Court of Appeals-Southern District - SD37844

Uniform mandatory disposition of detainers law explained
The Uniform Mandatory Disposition of Detainers Law set a time limit after which a circuit court had to either try any offense subject to a detainer or dismiss the charge. To invoke the Law, defendant had to substantially comply with that Law’s requirements. The Law required a request for disposition of detainers that included a certification of specified information from the director of adult institutions, and defendant neither sent the request for certification nor included the information in any other way. The circuit court did not err in denying a motion to dismiss the charges subject to defendant’s detainers.
STATE OF MISSOURI, Plaintiff-Respondent v. GARY LEE FARRAR, JR., Defendant-Appellant
Missouri Court of Appeals, Southern District - SD38314

No speedy trial violation
Constitutional provisions guaranteed defendant the right to a speedy trial. A delay of the trial for 63 months was more than enough to presume prejudice. But a delay of four years and seven months in asserting the right weighed against defendant. Agreed delays weighed against neither party, and delays for health reasons and a threat to a witness counted only lightly against the State, while a scheduling conflict weighed against the defendant. Defendant did not show prejudicial oppression or undue confinement, especially considering the eventual life sentence. The death of the State’s eyewitness did not prejudice defendant. The circuit court did not err in denying relief.
(Overview Summary)
State of Missouri, Respondent, v. Lonnell A. Lewis-Jones, Appellant.
Missouri Court of Appeals, Eastern District - ED112002

Discipline instruction rejected
No plain error occurred when the circuit court admitted out-of-court statements that were cumulative or admitted without objection. Any instruction on any claim or defense was due when substantial evidence supported each element. Approved instructions included a defense to the use of force in the discipline of a person within defendant’s care, but that defense did not apply to extreme pain intentionally caused. Defendant denied imposing any discipline at all, which was an all-or-nothing defense, and did not raise a jury question on intent.
(Overview Summary)
State of Missouri, Respondent, vs. Karla C. Ellis, Appellant.
Missouri Court of Appeals, Eastern District - ED111922

No warrant needed for abandoned murder weapon
Constitutional provisions protected persons from any search or seizure that was unreasonable, presumptively meaning warrantless. Standing to raise those provisions required a subject and objective expectation of privacy in the thing seized. Items concealed in a container were subject to such expectations, but defendant abandoned those expectations when he abandoned the bag containing the murder weapon in a relative’s residence while fleeing law enforcement. Defendant’s three homicides in 24 hours required immediate law enforcement action, which constituted the exigent circumstances supporting a warrantless search of defendant’s cell phone data.
(Overview Summary)
State of Missouri, Respondent, vs. Prinshun McClain, Appellant.
Missouri Court of Appeals, Eastern District - ED111423

Employment

Claim of harassment as retaliation was submissible 
On appeal from a defendant’s directed verdict, the appellant recited the facts in the appellant’s favor, with support in evidence of which the appellant challenged the exclusion, and in appellate authority not adopted by the Supreme Court of Missouri. Such briefing complied with appellate court rules and made the appellant’s clear enough for a decision on the merits. Statutes barred employment discrimination based on age and race. In a claim for employment discrimination, the elements included either “a tangible employment action or an abusive working environment,” but the plaintiff did not have to show both. Tangible employment action included “significant change in employment status[,]” which the plaintiff supported with evidence that the defendant employer had re-structured the plaintiff’s duties by refusing to fill existing positions, netting greater responsibilities and workload for the plaintiff without increased pay, despite creating and funding a new position; and denied annual leave. Statutes also barred retaliation for protesting discrimination including retaliation by constructive discharge or harassment, including a hostile work environment. Evidence in support of those allegations was admissible. As to whether race and age were contributing factors, and whether the employer’s decision-making grounds were pretextual, comments from the defendant’s officials and patterns of pay raises were admissible. The plaintiff made submissible cases on the plaintiff’s claims, and the circuit court erred in granting a directed verdict for the defendant, so the Missouri Court of Appeals reversed the judgment and remanded the action to circuit court. 
(Overview summary) 
Jim Marcantonio vs. The Board of Curators of Lincoln University A/K/A Lincoln University 
Missouri Court of Appeals-Western District - WD86224

Employment negated 
Summary judgment was due a defending party when the defending party established facts beyond genuine dispute that negated an element of the claimant party’s theory. In an action under the Missouri Human Rights Act, the plaintiff had to show that the defendant was the plaintiff’s employer. The defendant established beyond genuine dispute that the defendant and the plaintiff’s employer were separate entities, and the plaintiff offered no evidence that the defendant was the plaintiff’s employer. In response to the defendant’s motion, the plaintiff argued that the defendant and the plaintiff’s employer were joint employers. But that theory was not in the petition and raising it in response to the motion was too late. Also, that theory was under statutory amendments. The circuit court did not err in granting summary judgment for defendant. 
ANNIE WILLIAMS, Plaintiff-Appellant v. HUTCHESON ENTERPRISES, INC. and TITLE CASH OF MISSOURI, INC., Defendants-Respondents 
Missouri Court of Appeals-Southern District - SD38072

Family 

“Deteriorating” mental health supported change in custody 
Deficiencies in appellant’s brief supported dismissal of the appeal but the respondent’s statement of facts made a review on the merits possible. In an action for dissolution of marriage, after an initial custody determination, statutes allowed a modification of custody. The elements of a motion to modify custody included a change in circumstances, including facts unknown at the initial determination. “When deciding a physical custody modification, the court only considers changes related to the custodial parents’ abilities to care for the children.” That included a party’s mental health issues because that party did not comply with treatment, the severity of the party’s mental illness was increasing, and the mental illness constituted a threat to the children’s health. The Missouri Court of Appeals affirmed the judgment modifying custody. 
(Overview summary) 
Scott Lavery vs. Rebecca Lavery 
Missouri Court of Appeals-Western District - WD86668

Insurance

Assignment of claims was void without severability clause 
Judgment on the pleadings was due when the pleadings showed that no legal theory supported relief on the petition’s allegations. Public policy barred the assignment of a personal injury claim. Injured persons assigned to health care providers all injured persons’ claims “under any policy of insurance[,]” which necessarily included personal injury claims in the absence of a severability clause, notwithstanding a limitation to the amount necessary for health treatment. “[T]he distinction between an assignment of proceeds and an assignment of a claim is a distinction without a difference.” The circuit court did not err in granting summary judgment for defendant insurer. 
(Overview summary) 
Dr. David Eisenmenger, D.C., and Injury Treatment Centers of Kansas City, LLC. vs. National Indemnity Company 
Missouri Court of Appeals-Western District - WD87011

Orders of Protection

Evidence was necessary to support attorney fees award
Rule required any motion for continuance to be in writing and filed within a certain time, so the circuit court did not abuse its discretion in denying appellant’s motion for continuance on grounds not set forth as required. Whether the circuit court abused its discretion in allowing respondent to amend pleadings on the day of trial, appellant did not preserve because appellant failed to present the matter to the circuit court in any way, and the Court of Appeals declined plain error review. Statute allowed an award of attorney fees, but no evidence supported such an award, so the Court of Appeals reversed judgment as to the attorney fees award.
(Overview Summary)
S.J.H., Respondent, vs. J.P.H., Appellant.
Missouri Court of Appeals, Eastern District - ED112072

Personal Injury

Two defendants, two verdicts, no merger
The doctrine of merger limits plaintiffs to one award per injury regardless of how many theories support recovery. But the verdict forms showed that the jury awarded damages against defendants separately for their respective conduct, one for injuries to the head and one for injuries to the legs, not collectively. The circuit court did not err in denying defendants’ motion to merge the verdicts into one award.
TYLER PENDERGRAFT, Plaintiff-Respondent v. JAMES RHETT MASON and JACE MASON, Defendants-Appellants
Missouri Court of Appeals-Southern District - SD38189

Probate

Notice required to remove conservator
Statutes required notice to a conservator before replacing any conservator. On a petition of a minor ward’s conservator for approval of certain expenses consented by minor, no pleading, notice, or mention at hearing raised the replacement of the conservator. Nevertheless, the circuit court sua sponte replaced conservator with the public administrator. “Given this lack of notice and opportunity to respond at a hearing to the removal question, the circuit court cannot be said to have complied with the statutorily-mandated due-process procedure for removing [the] conservator.” The statute authorizing the appointment of a guardian ad litem did not apply. The Court of Appeals affirmed the judgment except as to replacement of the conservator, as to which the Court of Appeals reversed the judgment and remanded the action to the circuit court for reinstatement of the conservator.
(Overview Summary)
In the matter of: E.S.S.
Missouri Court of Appeals, Eastern District - ED112400

Post-Conviction

No duty to advise on collateral matters
On a claim that counsel was ineffective, movant had to show prejudice from substandard performance. Standard performance for plea counsel included making sure a guilty plea was knowing and voluntary through accurate advice on the direct consequences of conviction collateral matter and, if plea counsel advised movant on a collateral matter and movant was entitled to rely on that advice, that advice must also be accurate. Movant did not allege that plea counsel gave inaccurate advice on eligibility for parole, and so waived that claim, and the circuit court also found that no inaccurate advice on parole occurred anyway. Instead, movant alleged only that movant thought that eligibility for parole would occur sooner, and plea counsel did not correct movant. But plea counsel had no duty to advise movant on collateral matters, including eligibility for parole, so the Court of Appeals affirmed the judgment denying relief.
(Overview Summary)
Samantha L. Martinez, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED112033