Case summaries for Oct. 15 - 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.
Noncompliance with Rules Preserves Nothing
To preserve any matter for appeal requires compliance with rules of appellate practice, which include the form and content of points relied on, which must include a legal standard for the ruling challenged. Appellant’s argument must show how the law applies to the facts so as to require reversal. Addressing appellant’s challenges without theories developed as described in the rules would make the Court of Appeals an advocate for appellant. Appeal dismissed.
Keith E. Walker vs. Anne Precythe, et al.
Missouri Court of Appeals, Western District - WD84121
Incomplete Record Requires Remand
After an appeal de novo from small claims division to associate division, the statutes require a record, but the associate division did not make a transcript of the trial. Evidence at trial was the basis of appellant’s challenges in the Court of Appeals, but the Court of Appeals cannot review such a challenge without a transcript. Because the absence of a complete record was not appellant’s fault, the Court of Appeals remands for a new trial, with a complete record.
David L. Jones, Appellant, v. Impact Agape Ministries, C. Kenneth Hayes, and Hosea Jackson, II, Respondents.
Missouri Court of Appeals, Eastern District - ED109352
“Rubber-Stamped” Attorney Fee Award Reversed
The circuit court submitted no instruction on breach of warranty because the circuit court disposed of that claim by directed verdict, which appellants did not challenge, so appellants waived error as to that instruction. Appellants did not show that an instruction on economic loss was a manifest injustice because they did not show that any heightened degree of care applied to negligent repair of their RV. Nevertheless, appellants’ negligence claim was not baseless, as shown by surviving motions for summary judgment and directed verdict, so a sanction of attorney fees to respondent was unsupported. “While verbatim adoption of a party’s proposed findings and judgment is not erroneous per se, it is unwise in a contested case and this Court and the Supreme Court of Missouri have repeatedly warned against it” because it makes the judgment look like a party’s view of the evidence and not the circuit court’s.
Douglas Acol and Nabila Acol, Appellants, vs. Travers Autoplex & RV, Inc., Respondent.
Missouri Court of Appeals, Eastern District - ED108917
Statutes define recklessness by appellant’s subjective mental state—conscious disregard of risk—and an objective mental state, which is a gross deviation from a standard of care. The standard of care is that exercised by a reasonable person of appellant’s general description, not of appellant’s specific life history. Self-defense does not support the use of physical force greater than reasonably necessary. Circuit court’s own earlier order in the juvenile action, for appellant to wear an electronic monitoring device, was in the circuit court’s own file, so no separate offer of that order into evidence in the adjudication procedure was necessary for the circuit court to find that the order existed. Circuit court’s conclusions, that appellant was guilty of assault in the fourth degree and did not act in self-defense, were not against the weight of the evidence. Release of appellant to a legal guardian did not moot the appeal while appellant remained under appeal, and carried the stigma and other consequences of an adjudication, that appellant committed conduct that would subject her to criminal penalties if appellant were an adult.
In the Matter of: M.L.H. vs. Juvenile Officer
Missouri Court of Appeals, Western District - WD84193
Excluding Video Was Reversible Error
The foundation for admitting a video into evidence requires testimony that the video accurately depicts what the video is offered to prove, which can come from anyone familiar with what the video purports to depict, not necessarily the maker of the video. The video offered had “supreme probative value” because it depicted the firing of a weapon with which appellant juvenile was charged and suggested, though it need not prove, that appellant was not the shooter. Nothing about the video diminished its legal relevance. “The erroneous exclusion of evidence ... creates a rebuttable presumption of prejudice” in criminal cases, which respondent did not rebut by showing that the error was cumulative or otherwise harmless beyond reasonable doubt. Remanded for new trial.
In the Interest of: J.R.
Missouri Court of Appeals, Eastern District - ED109245
Order Pendente Lite’s Effects Discussed
The circuit court determines the marital property and debts at the time of trial, so no amended income tax returns are necessary for a year before the action commenced. Express findings on credibility are unnecessary because an appellate court will presume that they are consistent with the rulings. The circuit court’s determinations of appellant’s tax liability and income, and the circuit court’s timing of credits and debits to the parties’ bank balances, had support in the record. Circuit court did not err in determining not to re-open the record to re-examine retirement account values for pandemic-related decline just one month after judgment. The record supported the circuit court’s determination of respondent’s reasonable expenses, including cosmetics; but erred in awarding maintenance that included children’s vehicle and cell phone expenses, and premiums for life insurance benefitting children. The record supports a finding that respondent paid for reasonable expenses, and did not squander or secrete funds, and that a marital vehicle was broken down. Appellant did not show that respondent’s expenditures in violation of an order pendente lite made the property distribution unfair. Judgment may either incorporate the parties’ agreed custody plan or make findings of fact supporting another custody plan, but the circuit court did neither, so the Court of Appeals remands to do either. Appellant’s challenge to college expense calculations is unpreserved through failure to raise the matter in circuit court. Circuit court correctly applied a visitation credit. The record showed that appellant complied with the circuit court’s order pendente lite, and the circuit court erred in finding otherwise. The judgment’s denial of a credit for overpayments, though silent on the matter, had support in the parties’ consent order pendente lite. Appellant’s points on appeal fail to specify a standard but are readily understandable, so the Court of Appeals will review them despite the risk of endorsing substandard briefing.
Mary E. Wilson, Respondent, vs. Thomas E. Murawski, Appellant.
Missouri Court of Appeals, Eastern District - ED109202
Pre-Filing Notice Ordinance Struck
Statutes partly waiving sovereign immunity make city liable for damages due to defective property, conditioned on notice to city before filing an action in circuit court, but city charter required such notice for any action against the city. The charter provision, therefore, exceeded the statute’s scope, and was no defense to appellant’s action, so circuit court erred in dismissing appellant’s action.
Christopher Zang, Appellant, v. City of St. Charles, Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED109422
Applicable Deadline for Amended Motion Explained
Rule provides that the deadlines that apply to appellant’s motion were those in effect when appellant was sentenced, not those in effect when appellant filed the motion. The applicable deadlines could include one extension only. Late filing of an amended motion raises a presumption of abandonment, requiring an inquiry, but the record shows none. Remanded for circuit court’s independent inquiry into abandonment.
Destynie Wright vs. State of Missouri
Missouri Court of Appeals, Western District - WD84046
Untimely Granted Motion Did Not Extend Time
The untimely grant of a motion to extend the time for filing an amended motion was not effective, so the amended motion was filed untimely. Late filing of an amended motion by appointed counsel raises a presumption of abandonment that necessitates an inquiry to determine whether the amended motion is subject to consideration. Remanded for an inquiry into abandonment.
Jerry A. Harley, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED109228
Ignoring Unchallenged Expert Evidence Shows Substitution of Opinion
The Labor and Industrial Relations Commission’s findings of fact must stand on substantial and competent evidence, and conclusions on causation require expertise, which the Commission does not possess. So without an express finding against credibility, or some other reason to reject uncontroverted expert testimony, the Commission must find the facts according to such evidence. An appellate court “cannot accept as substantial and competent evidence a purported excerpt from an examining physician’s report, quoted in the report of a non-medical witness, about what Claimant allegedly told the physician. Such an excerpt does not qualify as a certified medical record [and] does not qualify as a complete medical report [and] does not qualify as deposition or live testimony” under statutes governing evidence before the Commission. Moreover, the Commission expressly found against the credibility of the non-medical witness purporting to quote the physician, the physician did not treat the claimant as the Commission misstated, and the quote itself was equivocal.
Mark Lynch, Claimant/Appellant, vs. Treasurer of the State of Missouri, Custodian of the Second Injury Fund, Respondent.
Missouri Court of Appeals, Eastern District - ED109502