Case summaries for Oct. 21, 2022
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.
Failure to Procure Permit Was a Voluntary Quit
Claimant is disqualified for benefits when unemployment resulted from claimant’s “act of choice.” Such choices include the failure to procure licenses and permits required by law for continued employment. Employment through labor union, under a collective bargaining agreement, required a work permit. Claimant’s temporary work permit expired, and claimant took no action to renew it, so employer assigned no more work to claimant. Those facts show a voluntary quit.
John D. Walker III, Respondent, vs. John J. Smith Masonry Company, Appellant, and Division of Employment Security, Respondent.
Missouri Court of Appeals, Eastern District - ED110346
Deficient Briefing Loses Appeal
Rules of appellate procedure define the issues for respondent and appellate courts to address. Inadequate briefing jeopardizes the appellate courts’ neutrality. Rules require that the brief and its appendix each have their own separate tables of contents. Rules also set forth the requirements for a jurisdictional statement, statement of facts, point relied on, and argument, which appellant did not meet. Such deficiencies are beyond the minor failing that an appellate court may overlook when it can otherwise understand appellant’s argument. Dismissed.
Latanya Townsend, Appellant, vs. Division of Employment Security, Respondent.
Missouri Court of Appeals, Eastern District - ED110085
Deficient Briefing Requires Dismissal
Rules of appellate practice make sure that an appellate court rules on appellant’s theory. Points relied on must do more than cite the standard of review, they must apply that standard to the challenged ruling, and demonstrate reversible error. Dismissed.
Violet Kay Wilson, Respondent, v. Frederick Robin Schmelzer, Appellant.
Missouri Court of Appeals, Eastern District - ED110033
No Special Use of Land Shown
In an action for negligence or nuisance, based on the condition of real property, the elements include a duty from defendant to plaintiff. Plaintiff alleged an injury on the verge between curb and sidewalk, which defendants did not own, and so generally had no duty subject to specific exceptions. Exceptions include adjacent land-owner defendants’ special use of the verge, which means a private use different from the intended use, but which did not include grass cutting and sewer access. Summary judgment for defendants affirmed.
Belinda Wilkins, Appellant, v. John Hendel and Patricia Hendel, Respondents, and City of Maplewood, Missouri, Defendant.
Missouri Court of Appeals, Eastern District – ED110387
In Declaratory Judgment Action, Judgment on the Pleadings Affirmed
Dismissal for failure to state a claim and judgment on the pleadings differ as follows. The former can be filed before an answer and, if granted, is subject to remedy by an amended pleading. The latter can be filed only after all pleadings are filed and, if granted, constitutes a final judgment on the merits. Under either, the non-movant must show that the petition’s allegations do not support relief as a matter of law under any legal theory. Theories to invalidate a regulation by declaratory judgment include inconsistency with statutes and unreasonable burden, but plaintiff did not allege facts supporting either theory, so judgment on the pleadings for defendants was not erroneous. If plaintiff wanted to challenge the decision assessing a penalty under the regulation and statute, the remedy was an action at the Administrative Hearing Commission, which plaintiff must exhaust. Any error in ruling on venue is moot.
City of Foley vs. Director, Missouri Department of Revenue and Missouri State Auditor Nicole Galloway
Missouri Court of Appeals, Western District – WD84635