Case summaries for Oct. 16 - Oct. 22

Appellate | Civil | Consumer | Criminal | DWI | Post-Conviction | Real Estate | Utilities

Appellate

Briefing Deficiencies Require Dismissal
Appellant’s brief violated rules governing statement of facts, points relied on, argument, references to the record, and citations to authority, and prevents meaningful review without turning an appellate court into an advocate. Dismissed.
Charles Carmen, Appellant, vs. Col. Eric T. Olsen, et al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Western District - WD108505

Motion for Fees Remanded
Rule requires that appellant cite the ruling challenged as error. Rule requires that appellant follow each point relied on with a list of authorities. When challenging a ruling as against the weight of the evidence, appellant must discuss evidence supporting the ruling, either found credible or requiring no credibility finding. Failure to follow meets those requirements and preserves nothing for review. Counsel for appellant sought an award of attorney fees in excess of regulatory cap, so Court of Appeals remands to circuit court for determination of that issue, including the amount due for appellate work.
IN THE INTEREST OF: J.X.B. and J.M.H., Minors, BUTLER COUNTY JUVENILE OFFICE, Respondent vs. J.E.B., Natural Father, Appellant
Missouri Court of Appeals, Southern District - SD36633 and SD36634

Briefing Deficiencies Require Dismissal
Failure to comply with rules governing statement of facts, points relied on, and argument, uncorrected after notice, render appellant’s theories indiscernible without advocacy that the Court of Appeals cannot perform. Failure to include transcript raises the presumption that the evidence refutes appellant’s challenge and deprives appellant of evidentiary support. Dismissed.
Larry T. Acton vs. Kaye Lynn Rahn
(Overview Summary)
Missouri Court of Appeals, Western District - WD83514

Civil

Service Not Deemed
A judgment is void when rendered without the due process of law, which requires notice, which requires service of process. Service of process occurs as rules provide, including service by mail, but only if the person served executes the written acknowledgment. Actual knowledge, or spoken acknowledgment, are insufficient to establish service. Failure to execute the written acknowledgment results in liability for costs only, not a deemed service, and does not start the time running for filing an answer. Only when an answer is due can a default judgment occur. For purposes of the rule that allows circuit court to set aside a default judgment for good cause with a meritorious defense, a motion spoken in open court is sufficient, though a written motion is the preferred practice. A judgment resolving all issues as to all parties is final and subject to appeal.
Michael J. Williams, Plaintiff/Respondent, vs. Kenneth Zellers, in his Official Capacity as Acting Director, Missouri Department of Revenue, Defendant, Vantage Credit Union, Defendant, and Nathan R. Best, Individually and as Trustee for the Nathan R. Best Living Trust, Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108434

Consumer

Damages Reduced Under MMPA
On remand, circuit judge need not make the same rulings as before remand. Plaintiff’s testimony, that plaintiff could not title her car because of defective title, did not constitute hearsay because it included only plaintiff’s first-hand experience and no out-of-court statement. Statutes provide that selling a motor vehicle without a valid title is fraud, so that conduct constitutes a violation of the Missouri Merchandising Practices Act, and supports plaintiff’s judgment. Actual damages included incidental damages, but loss of a business expectancy was beyond incidental damages. Statutes allow an award of punitive damages, which had support in evidence that motor vehicle dealer defendant sold plaintiff a motor vehicle with a manifestly defective title and, “when [plaintiff] attempted to work with the [defendant] to try to get a proper title and later attempted to rescind the purchase, the [defendant’s] employees laughed at her and taunted her to ‘take them to court.’” Statutes also allow an award of attorney fees, which Court of Appeals presumes is correct. Affirmed, with actual damage award reduced, and remanded again to determine the amount of attorney fees due on appeal.
Tequea Fisher vs. H & H Motor Group, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD83318

Criminal

Accomplice Liability Shown
Court of Appeals applies all inferences favorable to a conviction and ignores all contrary inferences. Statutes provide that defendant is liable for an offense when defendant had the mental state required for the offense and encouraged the commission of the offense. Evidence that defendant met with other persons, gave a gun to one such person who used it to commit robbery in the first degree, was present at the site of the robbery, and fled after the robbery, raised an inference that defendant wanted to help that other person commit robbery in the first degree.
State of Missouri, Respondent, vs. Doryon Mason, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108428

No Evidence Medical Neglect Caused Death
Court of Appeals reads the evidence supporting a conviction in the light most favorable to a conviction. On a charge of child neglect, elements include knowing causation, and pre-birth events are irrelevant. The State provided no expert medical testimony linking the lack of medical treatment to premature newborn’s death. The State “offered no opinion permitting a reasonable inference that the cause of [injury and death] was a criminal act, and was not instead a natural peril of child birth.” Court of Appeals orders acquittal and discharge of defendant.
State of Missouri, Plaintiff/Respondent, v. Roberta Jean Baker, Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108263

Tampering Not Shown, Only Attempt
Elements of tampering in the second degree include some effect on the victim’s property. Defendant’s scheme to puncture victim’s tires was unsuccessful, but only because victim saw defendant place defendant’s a crushed soda can with protruding nails, under victim’s tire. Those facts show no effect on victim’s property, but do show a substantial step toward causing an effect on victim’s property, so they support a conviction for the lesser included offense of attempted tampering in the second degree. When the greater offense and the lesser included offense have different ranges of punishment, remand for sentencing is necessary, and the Court of Appeals so orders.
State of Missouri, Respondent, v. Harley J. Ahart, Jr., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108016

DWI

Evidence of Silence Barred
Fifth Amendment bars compelled self-incrimination, and due process bars impeachment by evidence of defendant’s post-arrest and post-Miranda silence. Silence may be claimed, waived, and reclaimed. “[E]vidence which reflects that the defendant ‘clammed up’ under circumstances calling imperatively for an admission or denial should not be admitted.” Reversible error appears in State’s repeated reference to silence without cure from circuit court, and the strength of each party’s case without that evidence. Statutes enhance sentencing for repeat offenses, for which State’s evidence of driving records constituted a prima facie case, which constitutes proof beyond a reasonable doubt unless refuted.
State of Missouri vs. Michael L. Ellmaker
(Overview Summary)
Missouri Court of Appeals, Western District -WD83026

Post-Conviction

Judgment Not Final
Movant asserted four claims for relief, and the circuit court ruled on three, leaving less than all claims resolved as to all parties. That judgment was therefore not final and was not otherwise subject to appeal. Court of Appeals dismisses the appeal and remands the action to circuit court for a ruling on the fourth claim.
Jennifer R. Rogers, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108348

Real Estate

Residential Rental Okay
Restrictive covenants are subject to strict construction not subject to implied extension. Covenant prescribing residential use, allowing signage for rental, and barring business or commercial use did not prevent residential rentals.
The Golf Club of Wentzville Community Homeowners Association, Plaintiff/Respondent, v. Real Homes, Inc., Amirali Jabrani, Janet Jabrani, and Roy Jumps and Stephanie Jumps, Defendants/Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108554

Landlord’s Signature Not Needed
Renewal of a lease does not constitute modification of the lease. Tenant’s signature made the lease binding without the signature of—or even a signature line for—landlord, because the purpose of a signature on a contract is to show agreement, and landlord’s delivery of a lease renewal form showed landlord’s agreement to renewal. Physical signed copy of renewal prevailed over electronic signature software’s “void” message, automatically generated by moving a document. Landlord’s communication about the physical renewal form did not constitute a misrepresentation, and tenant was not entitled to a return of the security deposit, so no violation of the Missouri Merchandising Practices Act occurred. Judgment for landlord and against tenant was not against the weight of the evidence. Rule, allowing circuit court to re-open the record for newly discovered evidence, does not allow re-opening the record “merely because a party has had a change of heart regarding the importance of evidence it chose not to introduce when it first had the opportunity to do so.”
Baker Team Properties, LLC vs. Matt Wenta
(Overview Summary)
Missouri Court of Appeals, Western District - WD83045

Utilities

ISRS Okay
Statutes allow a public utility to collect a surcharge for replacing infrastructure required by federal or Missouri law, if worn out or deteriorated, as determined on application to the Public Service Commission. Statutes and regulations required the replacement of the infrastructure that the applicant public utility sought to replace. Evidence of deterioration must include more than defective condition, because a defect may result from events other than deterioration, but does not require evidence that leakage is already occurring.
In the matter of the application of Spire Missouri, Inc to change its infrastructure system replacement surcharge in its Spire Missouri East Service Territory; In the matter of the application of Spire Missouri, Inc to change its infrastructure system replacement surcharge in its Spire Missouri West Service Territory vs. Public Service Commission; Office of Public Counsel
(Overview Summary)
Missouri Court of Appeals, Western District -WD83475, WD83476 and WD83477