Case summaries for Oct. 21 - Oct. 27, 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.
Motion to Revive Judgment Too Late
Statute presumes paid and extinguishes a money judgment ten years after “entry of the judgment, the last payment of record, or the last prior revival of the judgment” without the filing of a motion to revive. Only a motion to revive is effective for that end, and neither a motion to emancipate a child, nor a motion to terminate child support, will substitute. Judgment debtor carried his burden to defeat the motion by showing the untimely filing of the motion to revive.
Mustafa Q. Alamin vs. Likita N. Alamin
Missouri Court of Appeals, Western District - WD84813
Plain Error Not Waived, But Not Found, for Multiple Acts Instructions
Missouri Constitution’s protection of the right to a jury trial includes the right to a unanimous criminal verdict of guilty, which only happens when jurors agree on defendant’s guilt for the same incident. Affirmatively stating that the defense has no objection, “under circumstances that could be explained by trial strategy” does not waive plain error. No plain error occurred in instructions that had support in evidence describing, in the specified location and time period, either only one incident or a series of indistinguishable incidents.
State of Missouri vs. Rodger L. Gannan
Missouri Court of Appeals, Western District - WD84655
IAD Deadline Met
The Interstate Agreement on Detainers provides two deadlines for bringing the detainee to trial, depending on whether the requestor is the detainee or a prosecuting jurisdiction, and the circuit court met the applicable deadline. Sentencing as a persistent offender requires evidence of other offenses before the instant offense, but the circuit court used offenses after the instant offense and imposed an enhanced sentence accordingly, which constituted plain error.
State of Missouri vs. Antwan T. Crosby
Missouri Court of Appeals, Western District – WD84848
Location of Arrest Irrelevant to Probable Cause
“[I]n the absence of statute, municipal police officers have no official power to apprehend offenders beyond the boundaries of their municipality.” Statutes do not extend city of Poplar Bluff police officers’ authority to the city of Campbell. But, on a motion to suppress, that is irrelevant to Fourth Amendment considerations of probable cause for an arrest. Remanded to determine whether probable cause supported the defendant’s arrest.
STATE OF MISSOURI, Plaintiff-Appellant v. NICHOLAS A. BARTON, Defendant-Respondent
Missouri Court of Appeals, Southern District – SD37421 and SD37422
Briefing Deficiencies Preserve Nothing for Review
To preserve any matter for appellate review, appellant must comply with rules on briefing. The purpose of an appellant’s brief is to demonstrate reversible error. When the appellant’s brief does not construct a supporting argument as directed by rule, an appellate court cannot find reversible error without constructing its own argument, which would make the court an advocate for the appellant. Therefore, the Court of Appeals must dismiss the appeal.
William Ferguson vs. Division of Employment Security
Missouri Court of Appeals, Western District - WD85295
No Responsive Pleading, No Default, in Termination of Parental Rights Required
In an action to terminate parental rights, the summons stated that failure to file a responsive pleading would result in default, but juvenile and family division rules provide that no such pleading is required, and the absence of such responsive pleading constitutes a denial. “[A] party cannot be in default for failing to file a responsive pleading when none is required by the rules.” The circuit court’s judgment of default, issued without notice of hearing, was therefore subject to vacatur as “irregular.”
In the Interest of: B.K.B. vs. Juvenile Officer
Missouri Court of Appeals, Western District - WD85225
Joint Ownership Disfavored
When challenging a ruling as not supported by substantial evidence, evidence that is contrary to the ruling is irrelevant, and such an “argument is analytically useless.” When challenging a ruling as against the weight of the evidence, evidence that is contrary to the ruling is relevant when not subject to a credibility determination, but only in the context of evidence supporting the ruling. Appellate courts will affirm a judgment that omits assigning a value to each item of property when such values are ascertainable from the record. In an action for dissolution of marriage, Missouri courts prefer to award each item of property completely to one party rather than award joint ownership, and the parties’ LLC operating agreement did not bar involuntary transfer of ownership by judgment. An award of motor vehicles without assignment of title, which is the exclusive means of transfer, is reversible error. Remanded to award motor vehicles, but their relatively small value requires no other adjustment to the property division.
Michelle Lynn Sporleder vs. Patrick Gregory Sporleder
Missouri Court of Appeals, Western District – WD85008
A defending party prevails by negating an element of claimant party’s theory. Claimant party’s theory was that defending party insurers owed payment to claimant party as assignee of damaged property. Insurers attempted to negate the assignment, but established nothing to bar the assignment of the policies after the loss occurred, because the liability was then fixed.
KATHERINE C. BOWDEN and DOUGLAS D. BOWDEN, by and through Plaintiffs Ad Litem, KATHERINE L. BOWDEN and DAVID BOWDEN, JR., Plaintiffs-Appellants v. AMERICAN MODERN HOME INSURANCE COMPANY and BARTON MUTUAL INSURANCE COMPANY, Defendants-Respondents
Missouri Court of Appeals, Southern District – SD37193
Refusal to Correct Briefing Deficiencies Loses Appeal
Enforcement of briefing rules is necessary to support the rules’ integrity. The Court of Appeals sent appellant a notice that appellant’s brief was deficient, offered a consultation with its clerk’s office to understand those deficiencies, and gave appellant an opportunity to correct the deficiencies in an amended brief. “Appellant filed an amended brief that was identical to the struck brief with the lone exception that it now included the word ‘amended’ on the cover page.” Appeal dismissed.
J.H. vs. A.B.
Missouri Court of Appeals, Western District – WD85257
Known Defense Waived, Plea Counsel Not Ineffective
Movant claimed ineffective assistance of plea counsel because plea counsel did not file a motion to dismiss under the Good Samaritan defense: that movant sought medical assistance for a drug overdose. But a “guilty plea waives all claims of ineffective assistance that do not involve the voluntariness and understanding of the plea.” And that claim is refuted by the record, in that the record shows that movant knew of that defense and believed that the defense applied, when movant pleaded guilty. Also, movant failed to describe the conclusions that evidence relevant to that defense would have supported, which included evidence negating the defense, so movant did not allege sub-standard advice. Circuit court did not err in denying relief without a hearing.
Jacob T. Shepard, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District – ED110167
Priorities Established on Summary Judgment
On a motion for summary judgment, the non-movant cannot deny an allegation already admitted in the pleadings. And non-movant’s affidavit showing that the affiant has no firsthand knowledge of the affidavit’s allegations, with support only in unauthenticated documents, raised no genuine dispute of material fact. The priorities established by summary judgment mooted the relevance of prior adjudications of title. A party’s affirmative disclaimer of all interests in the disputed property mooted a quiet title action against that party, removing the only justiciable matter as to that party, so the circuit court did not err in dismissing that party from the action. Judgment resolved all claims among parties to appeal and left no claims intertwined with those unresolved in circuit court, so certification of judgment for appeal was not error.
Dustin M. Bray, et al., Appellant, vs. Wells Fargo Home Mortgage, Inc., and Envoy Mortgage, LP, et al., Respondents.
Missouri Court of Appeals, Eastern District – ED110570
Liability for Ordinance Violations Not Determined
City ordinances impose liability on any person having control of, or responsibility for, properties. Collateral estoppel does not apply against defendant to establish control or responsibility. Whether defendant had control or responsibility was not determined in circuit court; it was error to dismiss the action to enforce ordinances against respondent. That dismissal was subject to appeal under rules of criminal procedure, which state that a dismissal is final when entered, but allow a later appeal by special order on a showing of good cause. Good cause included the ambiguous inter-relation of rules, absence of guidance from the courts, and the “importance and likely reoccurring nature of the legal issues presented in this appeal.” An appellate court may consider documents not filed in circuit court before judgment when uncertified or incomplete versions were before the circuit court and both parties cited them.
City of St. Peters, Appellant, vs. Collene Velma Lienemann, Respondent.
Missouri Court of Appeals, Eastern District – ED110353
Deed’s Ambiguity Resolved
Deed was not unclear on its face, but comparison with the land described revealed a latent ambiguity, with each claim supported by expert testimony. The existence of an ambiguity is a question of law, but its resolution is an issue of fact, focusing on the parties’ intent. The circuit court’s findings had support in substantial evidence that the parties believed that the disputed land had been conveyed, and acted consistently with that belief, including unchallenged possession and use.
BEVERLY BARLOW, Respondent vs. SAXON HOLDINGS TRUST and ERIC FARRAN and LEANN FARRAN as its Trustees, Appellant
Missouri Court of Appeals, Southern District – SD37361
Pre-Amendment, Pre-Existing Injuries Discussed
Statutory amendments of 2005 provide that the liability of the Second Injury Fund for permanent total disability depends on claimant’s proof of a primary injury and at least one secondary pre-existing injury, each of which must qualify under statutory standards. Those standards include injuries with a 50-week permanent partial disability. The Labor and Industrial Relations Commission found that Claimant’s proffered pre-existing injuries did not meet that standard, and an appellate court must defer to that finding. A settlement between claimant and the Second Injury Fund under pre-amendment standards constituted “an approximated and cumulative disability rating for purposes of settlement without separately rating the individual disabilities themselves[,]” and is not binding under current standards. Whether to apply a multiplicity factor is within the Commission’s discretion.
Walter Adams vs. Treasurer of the State of Missouri-Custodian of the Second Injury Fund
Missouri Court of Appeals, Western District - WD84818