Case summaries for Oct. 20 - Oct. 26, 2023

Administrative | Appellate | Commercial | Criminal | DWI | Employment Security | Evidence | Family | Legislative | Local Government | Post-Conviction | Real Property

Administrative

Mailing starts deadline  
Appellant’s brief fails to comply with appellate rules but the Court of Appeals can understand appellant’s arguments, so the Court of Appeals will address the merits of the appeal. Statutes governing judicial review of administrative decisions require a petition filed 30 days from “mailing or delivery,” which “begins to run on the date of mailing, not the date of receipt.” An earlier appeal did not toll that time. Timely filing is necessary to the circuit court’s authority. The circuit court did not err in dismissing the petition for judicial review untimely filed. 
Quincy Clark Entertainment, LLC vs. Liquor Control, Et Al 
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85531

Appellate

Direct review does not include ineffective assistance of counsel   
Deficiencies in points relied on and argument prevent appellate review. And claims related to effective assistance of counsel are subject to post-conviction relief to the exclusion of direct appellate review of a conviction.   
State of Missouri, Respondent, v. Timothy Meding, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111438

Commercial

Bank complied with clearing house rules  
The Public School Retirement System contracted with respondent bank for direct deposit of retiree’s benefits into an account until payee’s death. That death occurred in 1969, but benefits continued into 2018, through documents forged by retiree’s survivors. The contract was not a source of any non-contractual duty—like determining whether retiree was still alive—to the System. The duties of a bank to its customers do not extend to non-customers. In the System’s action to reclaim the benefits overpaid, the record included the National Automated Clearing House Association Operating Rules, incorporated by reference into the direct deposit contract. Those Rules required the bank to repay either the entire overpayment, or the funds remaining in the account, whichever was less. The Rules are unambiguous and, even if they were, the System drafted the contract and so bears the burden of the ambiguity. The lesser amount was the funds remaining in the account, and the bank paid that amount, so the bank was entitled to a verdict in its favor or a judgment notwithstanding the verdict.   
The Public School Retirement System of Missouri vs. Regions Bank Inc.  
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85795 and WD85860

Criminal

Federal law required registration  
Statute requires sex offender registration of anyone whom federal law has ever been required to register, without regard to whether any other ground for registration exists.    
Charles Ewing, Appellant, v. Col. John Hayden, et al., Respondents.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111321

Non-testifying defendant’s age inferred  
Sufficiency of the evidence is subject to appellate review even when not raised in circuit court. The elements of felony abuse of a child include “the infliction of ... injury against a child by any person eighteen years of age or older.” Though defendant did not testify, defendant’s age was subject to inference from the jury’s observation and other circumstantial evidence. The care and custody of a child is a defense to felony abuse of a child, but defendant did not offer evidence on it, so no instruction on that defense was due.   
State of Missouri, Respondent, vs. Jesse M. Jansen, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110787

Defenses unsupported by evidence  
Defendant confronted victim after victim’s brake-checking of defendant and defendant’s family on the shoulder and away from defendant’s family. Those facts did not support defense-of-others or self-defense from a forcible felony because victim was not near defendant’s family and not committing a felony. Evidence supporting an instruction on deadly force included victim’s injuries and death. The circuit court did not err in barring defendant’s argument on defense of others, in submitting no instruction on defense of others, and in submitting an instruction on deadly force. Failure to proffer an instruction in writing waives error in refusing that instruction. Neither victim’s history of glue-sniffing, nor a metabolite of toluene in victim’s system, showed that victim was intoxicated during the confrontation and so was properly excluded as legally irrelevant. Defendant’s silence before any Miranda warning, or even custody, is subject to comment by the State.   
State of Missouri, Respondent, vs. Joshua O'Keefe, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110330

Case on appointing counsel for arraignment transferred  
Rule requires the circuit court to advise defendant of the right to appointed counsel at an initial appearance, but no law requires the appointment of counsel at an initial appearance or at an arraignment. Transferred.   
State of Missouri vs. James Eugene Logan  
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85830

DWI

Reinstatement limited  
On driver’s post-reinstatement offense of driving while intoxicated, the Director of Revenue revoked respondent’s driving privileges. On judicial review, the circuit court ordered that revocation expunged. Statutes allow reinstatement only once without even a limited privilege and require denial. Therefore, the Court of Appeals reverses the circuit court’s judgment and remands with an order to deny respondent’s petition for judicial review.   
Ronald Greco, Respondent, v. Director of Revenue, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111549

Employment Security

No late appeal from overpayment  
Statutes require any administrative appeal from an overpayment decision to be filed 30 days from mailing and, unlike an ineligibility determination, provide no exception for good cause. Appellant’s administrative appeal was three months late, so the Labor and Industrial Relations Commission did not err in affirming the dismissal of the administrative appeal.   
Eniz Poljarevic, Appellant, vs. Division of Employment Security, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111381

Evidence

Waiver of objections discussed  
A ruling on a motion to suppress is interlocutory, so the movant must also object at trial when the evidence is offered in the context of the trial, for a reconsideration of the ruling. Using the evidence also waives objection. An affirmative statement of “no objection” waives plain error review. Defendant did not show that the State committed a Brady violation with discovery because the record shows that defendant used the discovery at trial.   
State of Missouri vs. Marqus Andrew Wilson  
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85247

Public trial does not bar exclusion of witness  
Circuit court has the discretion to exclude potential witnesses from voir dire, which proves that it is not a violation of due process. Remanded for an order nunc pro tunc conforming sentence as written to sentence as spoken.  
STATE OF MISSOURI, Plaintiff-Respondent v. KEVIN LEE HAUSMANN, Defendant-Appellant  
Missouri Court of Appeals, Southern District - SD37514

Family

Visitation credit corrected  
On a motion to modify child support, the circuit court’s determination of a party’s income may stand on income tax returns or bank statements, and the circuit court’s determinations of credibility merit deference on appeal. Appellant must preserve arguments about insurance costs by raising them first in the circuit court and not on appeal. The circuit court’s miscalculation of visitation nights diminished the credit due appellant, so the Court of Appeals enters the judgment that ought to have been rendered.    
Dana L. Girgis, Respondent, v. Mark S. Girgis, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110868

Legislative

Last antecedent and series modifier rules applied in disability retirement statute  
Under the last antecedent rule and the rule against modifier carry-over, the qualitative words that modify nouns apply to those nouns respectively. Statute provides duty-related retirement for any police officer disabled either “as the natural, proximate, and exclusive result of an accident occurring within the actual performance of duty at some definite time and place [or] through an occupational disease arising exclusively out of and in the course of ... employment [.]” The words “natural, proximate, and exclusive” apply only to an accident and not to an occupational disease.   
Wilford Freestone vs. Board of Police Commissioners Kansas City, Missouri, Et Al  
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85492

Local Government

Solid waste districts get money with no strings attached; litigation expenses awarded  
Appellant’s brief is deficient, but substantially complies with appellate rules such that the Court of Appeals can understand appellant’s arguments, so the Court of Appeals will address the merits of the appeal. Statutes provide that the Department of Natural Resources generally oversees grants to political subdivisions, including from the Solid Waste Management Fund. From the Fund, the Department distributes amounts to solid waste management districts. As to those amounts, a statutory amendment specifically removed the Department’s oversight authority. Therefore, the Department regulation conditioning a district’s receipt of Fund monies on a Financial Assistance Agreement is unauthorized. Because the respondent prevailed, statutes entitle respondent to litigation expenses including attorney fees. Remanded to determine the award on appeal.   
St Louis-Jefferson Solid Waste Management District vs. Department of Natural Resources, State of Missouri  
(Overview Summary)   
Missouri Court of Appeals, Western District - WD85984

Post-Conviction

Advice on implied weapon was sound  
Robbery in the first degree includes the implication of a weapon, even if none is present, by word or gesture. Both words and gesture were used on victim, so “the evidence was sufficient to constitute first-degree robbery [.]” Trial counsel’s advice on pleading guilty to robbery in the first degree did not constitute ineffective assistance and did not render the guilty plea less than voluntary and knowing.    
Montel Berry, Appellant, vs. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111112

No abandonment by retained counsel  
Abandonment applies only to appointed counsel, so the circuit court had no authority over an amended motion filed late by non-appointed counsel. Only the initial motion is within the circuit court’s authority, so the Court of Appeals reverses judgment on the amended motion, and remands for rulings on the initial motion.  
Dominique Kemper, Appellant, vs. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111038

Real Property

Small estate documents clear title  
For small estates, distributes can establish clear title with a probate certificate and affidavit filed with the recorder of deeds. “[T]he probate court filings alone constituted substantial evidence supporting the trial court’s judgment quieting title [.]” The elements of adverse possession include hostile occupation, which the circuit court’s finding of permissive occupation negated, and appellate courts defer to that determination of credibility.   
Melissa Cavin, Respondent, vs. Barrie Hair, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111110