Case summaries for Oct. 9 - Oct. 15

Civil | Criminal | Elections | Employment | Employment Security | Evidence | Health | Real Estate | Workers' Compensation

Civil

Out-of-State Affidavit Sufficient
Rule allows circuit court to set aside a default judgment, when movant shows a good cause for default and a meritorious defense to the underlying action, and files the motion within a reasonable time. Statute provides that the attestation of a notary in movant’s home state is sufficient for an affidavit in circuit court.  An affidavit’s failure to recite that it sets forth the affiant’s personal knowledge “is not fatal to the admissibility of the affidavit when the contents of the affidavit demonstrate that the statements are based on the affiant’s personal knowledge.” Affiant’s description of events leading to default show first-hand knowledge of those events. Allegations of conduct that was not intentional or reckless supported a finding of good cause for default. Whether time when movant filed was reasonable is a finding of fact on which appellate courts defer to circuit court.
Arthur R. Piva, Appellant, vs. Richard A. Piva, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108780

Record Required for Review of Class Certification
Rules governing class action allow certification of a class only on findings as to the class: of numerosity, and commonality of matters of law or fact; as to the class representative: typicality of claims or defenses, and adequacy of representation; and as to the common matters of law or fact: predominance over individual matters, and superiority to other procedures for resolving them. Ruling on certification is subject to interlocutory appeal, which requires enough of a record to explain the circuit court’s ruling, in the absence of which the Court of Appeals must remand to make one.
JENNIFER TOWNSEND, Individually and on Behalf of Herself and Others Similarly Situated, Plaintiff-Appellant vs. REGIS CORPORATION and DARLEEN MATRANGA, Defendants-Respondents
Missouri Court of Appeals, Southern District - SD36671

Criminal

Bazell Applied to SIS
Statute enhanced the sentence for offenses of which the elements included the value of property, but the value of property was not an element of stealing, so the Supreme Court of Missouri ruled that stealing was not subject to enhancement. That ruling applied prospectively to any action in which judgment was not final, including those in which circuit court suspended imposition of sentence, when the ruling issued. Remanded for sentence without enhancement.
State of Missouri, Respondent, vs. John A. Golden, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98018

Elections

Ballot Notarization Requirement Upheld
Missouri Constitution’s provisions for free and open elections and entitlement to vote create fundamental rights, but those fundamental rights do not include absentee voting. Missouri Constitution delegates discretion to the General Assembly to authorize absentee ballots. Statutes providing for mail-in ballots and absentee ballots require notarization for some persons, but not others, including persons confined due to illness. Confined due to illness does not mean confined to avoid illness, so persons self-confining to avoid illness must have their ballots notarized.
Missouri State Conference of the National Association for the Advancement of Colored People, et al., Appellants, vs. State of Missouri, et al., Respondents.
(Overview Summary)
Supreme Court of Missouri - SC98744

Employment

Damages Reinstated for Whistleblower
Courts may attribute an agent’s conduct on behalf of one principal to another “principal who benefits from the agent's actions [.]” Plaintiff’s evidence made a submissible case that employer fired plaintiff in retaliation for complaining about employer violations of United States statutes and other professional standards, with resulting damages in Missouri. Those facts gave Missouri courts personal jurisdiction under Missouri’s long-arm statute, constituted minimum contacts under the United States Constitution, made Missouri law applicable under the most significant relationship test, constituted a claim for wrongful termination in Missouri courts, and supported an award for punitive damages. Circuit court submitted the correct instructions for joint and several liability of co-defendants. Allocating damages in accordance with appellant’s argument in circuit court was not reversible error. Kansas statute reducing damages was unconstitutional, and therefore void ab initio, so Missouri Court of Appeals reinstates jury’s award of non-economic damages. Court of Appeals modifies judgment accordingly.
Raymond Brovont, M.D. vs. KS-I Medical Services, P.A. and MO-I Medical Services, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD82544 and WD82552

Employment Security

Facts Showed No Voluntary Quitting
Statutes disqualify claimant for benefits upon voluntarily quitting without good reason, but claimant did not quit voluntarily, she just took time off for maternity. Those facts—found by the Labor and Industrial Relations Commission—showed a firing, not a voluntary quitting, so Commission ruled in claimant’s favor and the Court of Appeals affirms.
JULIE N. MAY, Claimant-Respondent vs. GOLDEN PARTNERS, INC., Employer-Appellant and MISSOURI DIVISION OF EMPLOYMENT SECURITY, Respondent
Missouri Court of Appeals, Southern District - SD36638

Evidence

Expert Testimony Supporting State's Theory Was Admissible
Appellant did not show that the State violated any rules governing disclosure of documents and did not show any prejudice from testimony of attending physician. Appellant’s challenge to expert testimony at trial differed from his challenge on appeal, no plain error occurred in admitting generalized expert testimony on behavior. Experience alone qualified a witness to testify as an expert, the witness did not comment on the veracity of the State’s evidence, and no plain error occurred when circuit court admitted that evidence into the record. Attending physician subject to cross-examination of attending physician’s opinion, related as hearsay in police officer’s testimony, caused no violation of the Confrontation Clause. Evidence that describes an uncharged offense is admissible to present a complete picture of the charged offense, but the uncharged offense was committed by the victim two years after the offense charged against appellant, so the circuit court did not err in excluding it.
State of Missouri, Respondent, vs. Rashidi Don Loper, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98295

Impeachment Evidence of Corporate Crimes Admissible
Statutes grant an absolute right to impeach a witness with evidence of criminal convictions, and define “person” to include a corporation, but a corporation can never be a witness because it can only testify through a representative. Therefore, a corporate representative is subject to impeachment through evidence of the representative’s criminal convictions, but the corporation is not. Evidence of corporation’s convictions was not admissible under the doctrine of curative admissibility, nor as rebuttal of corporate good character argument made in opening statement, nor to contradict evidence of other person's good character. Abandoned pleadings in the alternative do not constitute admissions against interest, but no prejudice resulted in entering them into the record, because such evidence was cumulative of evidence entered without objection. References to, and discussion of, appellant’s settlements with former co-defendants was inadmissible but plaintiff did not show that a mistrial was necessary.
Eve Sherrer, Appellant, vs. Boston Scientific Corporation and C.R. Bard, Inc., Respondents.
(Overview Summary)
Supreme Court of Missouri - SC97465

Health

Nursing Practice Includes Midwifery
One point challenging multiple grounds for circuit court’s ruling is multifarious. Statutes provide that the practice of midwifery does not require a licensure as a physician and surgeon. Competent and substantial evidence supporting a finding that appellant held herself out as a certified nurse midwife included appellant’s advertising and other representations to client, contractual provisions, and conduct that constituted nursing practice. That finding supported a conclusion that appellant’s license was subject to discipline for practice below the standard of care for nurses, which is to do what a nurse ordinarily does under similar circumstances. Similarity of circumstances does not depend on whether circumstances arise in a hospital setting. Substantial and competent evidence supported the conclusion that appellant committed incompetence in obtaining informed consent, monitoring patients, collaborating with a physician, and record keeping. Appellant did not show that license revocation was an abuse of discretion.
Rachel K. Williston vs. Missouri State Board of Nursing
(Overview Summary)
Missouri Court of Appeals, Western District - WD83295

Real Estate

License, Easement in Gross, and Easement Appurtenant Distinguished
The law presumes that an easement is appurtenant, meaning that it constitutes an estate, rather than in gross as a personal right. Contract, granting easement to “heirs and assigns [,]” was unnecessary for using the underlying land, and created a personal and assignable right. That right was not freely revocable, so it was more than a mere license, and constituted an easement in gross.  The law also presumes that an easement is perpetual and does not expire by lack of use.
Tenampa, Inc., et al vs. William T. Bernard, et al, Westport Ultra Properties, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD83226 and WD83243

Collector’s Deed Does Not Cancel District’s Lien
Statutes authorize the creation of a Community Improvement District, which has the power to levy assessments enforceable by a “perpetual” lien on real property, and such lien continues until paid. Statutes provide that the County Collector collects District assessments the same way as real estate taxes, which is by tax sale, at which the purchaser must always pay any taxes due up to the date of the sale.  Purchase at tax sale and issuance of collector’s deed therefore did not affect District liens, neither for assessments levied before the sale nor assessments levied after the sale.  
REAL ESTATE RECOVERY, LLC, Appellant vs. BRANSON HILLS FACILITY INFRASTRUCTURE COMMUNITY IMPROVEMENT DISTRICT, Respondent
Missouri Court of Appeals, Southern District - SD36349

Workers’ Compensation

Workers’ Compensation Is Exclusive Remedy for Co-Worker Assault
In a contractor’s action for damages from on-the-job-injuries, defendant raised the defense of plaintiff’s status as a statutory employee, for whom workers’ compensation statutes provide the exclusive remedy. Statutory employee status depends in part on whether the contractor was doing work in the usual course of the defendant’s business. Defendant’s business was “to distribute and deliver its products to its customers [,]” for which it would have used its own employees, if it were not using contractors.
Robby Sebacher, Appellant, vs. Midland Paper Company, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108615