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Case summaries for Oct. 1 - Oct. 7, 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 | Appellate | Civil | Contract | CriminalDWI | Employment Security | FamilyPersonal Injury | Post-Conviction | Workers' Compensation


Declaratory Judgment Action Premature
Until an agency makes its final decision, any controversy with the agency is unripe, so a warning of agency action does not show any justiciable action. Therefore, when the Department of Corrections informed appellant that fees were due, but had not yet attached any of appellant’s exempt Social Security disability funds, appellant’s petition for declaratory judgment was premature. The enabling statute provides that the agency may “collect an intervention fee from offenders; it does not require the [agency] to do so [, so any harm] under the facts alleged is purely speculative and hypothetical.” Dismissal affirmed, but modified to dismissal without prejudice.
Randall Graves vs. Missouri Department of Corrections, The Division of Probation and Parole
(Overview Summary)
Supreme Court of Missouri - SC98501


Confirmation Not Final
Statute allows an appeal from a final judgment that aggrieves appellant. No judgment is final pending a motion to intervene that is substantive, raising claims for relief, not merely procedural. Also, because the circuit court did not rule against appellant’s motion to intervene, appellant is not aggrieved by any circuit court ruling. Circuit court still has authority so the Court of Appeals dismisses the appeal.
Leslie M. Henson, Individually, and as Personal Representative of the Estate of Leslie S. Henson vs. Merob Logistics, LLC and Tedros S. Lakew; Zurich American Insurance Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD84129


Attorney General Served in Declaratory Action Only
In an action for declaratory judgment on the constitutionality of a statute, rule requires service on the Attorney General. Relator challenged statutes that limited an award in a medical malpractice action, but relator did not file an action for declaratory judgment, relator seeks damages only. The Court of Appeals makes permanent its writ of prohibition to bar circuit court from enforcing an order to join the Attorney General.
State of Missouri, ex rel. H.D., a Minor, By and Through His Next Friend, Marie Dobson, Relator, vs. Honorable Joan Moriarty, Judge of the Twenty-Second Judicial Circuit, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109944

Service for Revival of Judgment Differs from Scire Facias
Statute presumes any judgment paid after ten years unless circuit court issues a writ of scire facias or revives the judgment. On a motion to revive a judgment, other than a judgment for unpaid rent, statutes require personal service. Service by publication can be sufficient for scire facias, but not for revival.
Unifund CCR Partners, Respondent, v. Giles Cobbins, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109524


Forum Selection Clause Inapplicable
The parties had a contract for the sale of real estate with a forum selection clause. The forum selection clause governs plaintiffs’ claims only if “resolution of the claims relates to interpretation of the contract.” Allegations, that plaintiffs suffered damage by reliance on defendants’ representations, do not require interpretation of the contract for sale of real estate. Therefore, the forum selection clause does not govern, and the circuit court erred in applying that clause to dismiss the action. A claim of civil conspiracy is a theory for holding parties liable for some other underlying tort by one of those parties, so allegations against one party constitutes a claim, the disposition of which is subject to certification for appeal.  
Adam Luebbering, et al., Appellants, vs. Shimir Varia, et al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109341

Forum Selection Clause Applicable
Missouri presumes a forum selection clause to be valid and appellant faces a “heavy burden” to avoid it. Appellant’s allegation, that respondent pirated software, requires interpretation of the contract governing respondent’s purchase of software from appellant. The contract’s adhesive nature does not benefit appellant drafter. Appellant showed nothing unfair or unreasonable about litigating in California. A party may waive a contractual provision that benefits that party alone, but appellant did not show such unilateral benefit, and the contract required mutual assent for any waiver. A ruling on venue causes no prejudice to the merits of a claim.
Corel Corporation, Appellant, vs. Ferrellgas Partners, L.P., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109259


In-Camera Review Denied
On a motion for in camera review of documents, to determine whether the documents have value to the defense, movant should allege that the documents are material to the defense. The circuit court’s order denying access to the records, after two reviews in-camera, describe careful reviews of the documents so no further in-camera review was necessary to deny disclosure. Appellant’s point relied on is “blatantly multifarious” but the Court of Appeals reviews its “main thrust” because it prefers to dispose of appeals on the merits. 
Missouri Court of Appeals, Southern District - SD36757


Not Too Intoxicated to Refuse
Operating a motor vehicle constitutes consent to a chemical test when an officer has reasonable grounds, or probable cause, to believe that the operator was driving while intoxicated. Reasonable grounds, or probable cause, means information on which a prudent person believes a driver drove while intoxicated. Such information includes appearances, odors, and refusal of field sobriety tests; later consumption of alcohol does not negate earlier intoxication. Administrative loss of license results from refusing a test, and refusing means everything but taking the test, unless the driver “is dead, unconscious or ... otherwise in a condition rendering him incapable of refusing [.]” Capacity to refuse does not require a knowing refusal, and whether the driver remembers refusing is irrelevant.
Adam M. Tarwater vs. Director of Revenue
(Overview Summary)
Missouri Court of Appeals, Western District - WD84007 and WD84008

Employment Security

Findings Necessary on Date of Filing
Statutes set a deadline for filing an application for review but provide that an application filed by mail is filed as of a United States Postal Service postmark date. Claimant alleged that she timely mailed an application for review, but the Labor and Industrial Relations Commission dismissed the action without a finding of fact on that allegation. The Court of Appeals “can only review the decision of the Commission and not the decisions of the Division deputy or the Appeals Tribunal” so the Court of Appeals remands to the Commission for findings of fact on that matter.
Kaleaha Rayner vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD84225


Interference in Custody Prohibited
Juvenile division of circuit court has only the authority granted by statute, explicitly or implicitly. In an action for protective custody, juvenile division issued an order interceding in the Children’s Division’s internal procedure for making a recommendation to juvenile division. Relator, an intervenor, had standing to seek relief. Court of Appeals makes permanent its writ of prohibition barring juvenile division from interceding in Children’s Division’s procedure.
Missouri Court of Appeals, Southern District - SD37148

Personal Injury

Med Mal Time Bar Inapplicable to Aide’s Negligence
Plaintiff alleged injuries caused by an employee of respondent. Respondent is an entity that provides health care services so, on a motion for summary judgment, respondent cited the statute of limitations on “actions against entities providing health care services and their employees for malpractice, negligence, error, or mistake related to health care.” But health care means the practice of a licensed activity, which does not include in-home personal care, which was the source of the injury. The employee’s certification as a certified nurse’s aide does not change that result and, even if it could, the aide is not a defendant. Therefore, respondent was not a health care provider, and the circuit court erred in applying the two-year statute to plaintiff’s petition.  
Patricia Noelke, Appellant, v. Heartland Independent Living Center, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109295


Trial Counsel Not Ineffective for Deciding Against Alibi Witness
“[A] heavy measure of deference to counsel's judgments” is due when determining whether trial counsel was ineffective for failure to investigate an alibi. The alibi came from defendant’s father, without detail or documentation, and defendant never mentioned it. Trial counsel’s experience suggested that such an alibi was not a reasonable strategy, and movant showed no prejudice from failure to call a witness who would not have been credible.  
Dominique A. Lindsey vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD84035

Record Supports Findings
The evidence, including movant’s testimony, refutes movant’s allegation that movant counsel was unprepared for trial. The Court of Appeals defers to the circuit court’s credibility determinations. Facts not alleged in the amended motion in circuit court are waived as grounds for relief at the Court of Appeals. 
ROBERT J. BRANSON, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36890

Workers' Compensation

Credibility Determines Characterization
Employer had standing to challenge the eligibility for benefits of decedent’s survivors. “Wage rate is a question of fact” on which the credibility determinations Labor and Industrial Relations Commission merit deference, including characterization of payments. Statutes provide formulae for determining decedent’s average weekly wage and, when exceptional facts defy the application of any such formulae fairly and justly, expert testimony supports a finding on average weekly wage. Statute describing the foundation for expert evidence did not require specialized knowledge of workers’ compensation law, it required merely a fair calculation, which respondents provided.
LAURA WILLIAMS, Respondent and JENNIFER WILLIAMS, next friend of COURTNY WILLIAMS and KENNEDY WILLIAMS, Appellants/Respondents vs. REEDS, LLC, Respondent/Cross-Appellant

Missouri Court of Appeals, Southern District - SD36883 and SD36892