Case summaries for Oct. 6 - Oct. 12, 2023

Criminal | Employment Security | Post-Conviction | Real Estate | Workers' Compensation

Criminal

Bail hearing without counsel case transferred 
Rule on initial appearance does not require the initial appearance to constitute an arraignment, so no law bars the circuit court from conducting the initial appearance without counsel. When defendant raises self-defense, defendant’s knowledge of the victim’s reputation for violence is admissible, but a third person’s knowledge is not. Statutes entitle defendant to jury sentencing, and the best practice for waiver includes a hearing before submission, but no plain error occurs when a circuit judge determines the sentence on defendant’s “knowing and voluntary” request on the “clear” record. Whether a bail hearing without counsel, but without proof of prejudice, constituted harmless error is transferred to the Missouri Supreme Court.   
State of Missouri vs. Tiffany J Mills 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85624

Multiple methods are not multiple acts 
No abuse of discretion occurred when the circuit court allowed the State’s limited rebuttal testimony to a previous act of unreasonable child discipline. When jury instructions suggest alternative methods of causing injury in one incident, instructions raise no multiple acts issue, because the case is not a multiple acts case. Sufficient evidence supported either of those methods. Approved instructions required an instruction on the defense of child discipline and a cross reference to that instruction in the verdict director; the submitted instructions omitted the cross-reference, but included the instruction, so no plain error occurred. Appellant did not show that the jury had less than all guilt-phase instructions for review during the penalty phase and, even if it did, no manifest injustice or miscarriage of justice resulted.  
State of Missouri vs. Joshua Armando Aldana 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85526

Employment Security

Multiple rulings create confusion, administrative appeals timely 
Agency paid two kinds of benefits to employee. Then the agency made three determinations: first, that employee was disqualified for benefits; second, that the agency had overpaid employee one kind of benefit; and third, that the agency had overpaid the employee the other kind of benefit. Each determination was by separate letter ruling. Employee filed a letter of administrative appeal, which the agency applied to the first determination, and dismissed as untimely. But the letter applied to the second and third determinations, as shown by its conformity to the agency’s own regulations, so the Court of Appeals reverses the dismissal and remands for reinstatement and a ruling on the merits of the overpayment issues.  
Michael C. Schmidt, Appellant, vs. Ritter Horticultural Services, Inc. and Division of Employment Security, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110938

Post-Conviction

Plain error rule applied to post-conviction judgment 
Appellant charged that the circuit court expressed bias during the evidentiary hearing on the motion, and failed to recuse itself, and so committed plain error. The plain error rule almost never applies to a judgment denying post-conviction relief because post-conviction relief rules “expressly waive any claims for relief known to the movant that are not raised in the motion [.]” But appellant raises a claim unknown until after the motion was filed, so the Court of Appeals applies the plain error rule. The plain error rule is discretionary, and requires certain pleading, including an allegation of outcome-determinative error. The bias alleged was a comment on the credibility of a witness. The witness’s testimony did not support appellant’s theory of post-conviction relief, and was irrelevant to the facts and law supporting the judgment, so any error had no effect on the outcome. 
GREG ALAN MARVIN, Appellant v. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals, Southern District - SD37704

Real Estate

Covenants no bar to in-home day care  
Missouri law disfavors restrictive covenants and extends them no further than their unambiguous language. Respondent homeowners’ association restrictive covenants provide that “[n]one of the lots … shall be used or occupied for other than single family residence purposes.” That purpose does not bar non-residential activity like “checking their work email, making a work phone call, completing a work project, or engaging in any work activity in their home.” Rule allows appellate court to enter judgment, and appellants were entitled to a judgment in their favor, so the Court of Appeals enters summary judgment for appellants.  
Willow Farm Pool and Homes Association, INC. vs. Rachel Zorn and Scott Zorn 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85837

Remedies distinguished, not preclusive 
For municipal code violations on any one property, city pursued different procedures for different remedies, so a decision in one procedure did not preclude a decision in the other procedure. One procedure was a prosecution in the municipal division of circuit court to rule on a fine. The other was a contested case before the city’s building commissioner to determine a remedy for dangerous conditions including whether to vacate, repair, or demolish. For the contested case, the exclusive statutory remedy was a petition for judicial review in circuit court, which the property owner filed too late. Other remedies listed by statute applied only to a non-contested case and did not apply. The circuit court did not err in granting summary judgment for the city, because the property owner failed to try the case before the commissioner, and so waived any issue before the commissioner and in appellate court.  
Clarksboro, LLC and WMAC 2013, LLC, Appellants, vs. City of Overland, Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111190

Workers’ Compensation

Mesothelioma claims discussed 
A defending party can prevail on summary judgment by establishing, beyond genuine dispute, the elements of an affirmative defense. The elements require support in evidence including an affidavit. An affidavit must stand on the affiant’s personal knowledge. Damages for work-related mesothelioma are subject to a civil action unless an employer elected workers’ compensation as the exclusive remedy for mesothelioma and carried enhanced workers' compensation mesothelioma insurance. That insurance policy’s existence is an affirmative defense. Defendant’s affiant supported the existence and authenticity of such a policy but, on later deposition, equivocated as to personal knowledge about the proffered policy. The statute providing for a business records affidavit does not apply because the policy was not the affiant’s business record. And the proffered policy issued after plaintiff’s claim. Reversed and remanded for further proceedings including a motion to sanction defendant for fraud.  
Roslyn T. Barnes vs. Athene Annuity & Life Assurance Company f/k/a Liberty Life Insurance f/k/a Business Men's Assurance Company of America, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85464