Case summaries for Oct. 23 - Oct. 29

ADR | Appellate | Civil | Contracts | Criminal | Employment Security | Evidence | Family | Insurance | Post-Conviction | Workers' Compensation

ADR

Arbitration Clause No Good
An employment agreement, that agreement’s arbitration clause, and that clause’s delegation provision each constitute a separate contract for which enforcement requires separate showings of offer, acceptance, and consideration. Whether consideration was sufficient is subject to Missouri law, despite Massachusetts choice of law provision, because Missouri law determines whether a contract made in Missouri is enforceable. A provision requiring arbitration for employee, but not employer, rendered illusory the consideration of mutual promises. Arbitrator found the arbitration clause unenforceable, circuit court confirmed that order, and Court of Appeals affirms circuit court judgment.  
Scott Caldwell, Respondent, vs. UniFirst Corporation and Michael Dean Seever, II, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108409

Appellate

Brief Defective
Appellant’s jurisdictional statement merely recited facts. Appellant’s point relied on was multifarious and did not offer legal reason for reversal on all rulings cited as required, so an appellate court would have to apply the argument section of appellant’s brief to understand appellant’s point. Appellant’s brief had a statement of facts that was not impartial. Dismissed.
Fredrico Lowe Bey vs. Anne Precythe, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83693

Challenge to Receiver Moot
Discharge of receiver rendered unnecessary, and therefore injusticiable, appellant’s challenge to the appointment of a receiver.
YAM CAPITAL III, LLC, Respondent vs. GS HOSPITALITY, LLC, Appellant
Missouri Court of Appeals, Southern District - SD36656

Civil

Challenge to Summary Judgment Waived
Plaintiff’s failure to challenge the evidentiary foundation for summary judgment in favor of defendant school district—its liability insurance policy—waived that issue at the Court of Appeals. “Unlike sovereign immunity, official immunity is an affirmative defense that [co-defendant t]eacher had the burden to prove [,]” and the facts supporting school did not support official immunity for teacher, nor establish a public duty that negated a private duty to plaintiff. Summary judgment for defendants affirmed for district, reversed for teacher.
JANE DOE, as next friend on behalf of JOHN DOE MINOR, a minor, Appellant vs. JOHN GARAGNANI, and CAMDENTON R-III SCHOOL DISTRICT, Respondents
Missouri Court of Appeals, Southern District - SD36665

Contracts

Parol Evidence Okay
The parol evidence rule bars evidence of agreements made before or during the making of a contract, when those agreements are contrary to the contract, and the contract is unambiguous. The parol evidence rule does not apply to ambiguous contracts and does not bar evidence of other agreements made after the contract’s execution. The parties’ conduct in executing the contract before the dispute arose is evidence of the contract’s meaning. The circuit court’s judgment “merely required the District to pay what it had been paying without dispute for many years. We agree with that result.”
CITY OF MALDEN, MISSOURI, Respondent v. DUNKLIN COUNTY REORGANIZED COMMON SEWER DISTRICT #1, Appellant
Missouri Court of Appeals, Southern District - SD36182

Criminal

Defense Evidence Barred
Circuit court did not err in striking a venire person sua sponte when that venire person’s voir dire showed a willingness to be impartial.  Even when a verdict director describes victim’s death, causing victim’s death is not an element of felony murder because felony murder prosecutes the underlying felony, not murder. Statute bars the justification of self-defense when defendant “was committing, attempting to commit, or escaping from commission of a forcible felony [,]” which is a jury issue. Due process entitles the defendant to offer evidence of what happened to negate an element of felony murder, and circuit court allowed evidence relevant to that matter, but not to show self-defense while committing a forcible felony. Excluded evidence was not outcome-determinative. A not-guilty verdict moots self-defense as it does any other defense. Counsel’s arguments are no substitute for an offer of proof.    
State of Missouri vs. Tyler J. Gates
(Overview Summary)
Missouri Court of Appeals, Western District - WD83104

One Transaction, Two Charges, No Double Jeopardy
A single transaction can result in multiple offenses without implicating Double Jeopardy when proof of one offense “requires proof of an additional fact which the other does not [,]” so separate convictions are possible for a single real estate transaction: one for using false promises in commerce; and another for concealing, suppressing, or omitting a material fact in commerce. A Double Jeopardy challenge to those charges would have been meritless, so trial counsel was not ineffective. Plea hearing transcript shows that guilty plea was voluntary, and that trial counsel advocated for a lesser sentence in chambers, and the circuit court found movant’s testimony to the contrary not credible.  
Malcolm Couch, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108008

Jury Fees Discussed
The elements of first degree trespass include knowingly remaining unlawfully in a building, which includes a courtroom. Juror fees authorized by statute include only daily pay and mileage, and plain error occurred when circuit court imposed more than that, and failed to determine whether defendant was indigent. Remanded for those determinations.
State of Missouri, Respondent, vs. Renee N. Bertrand, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108007

Escape Rule
Appellant’s escape delayed sentencing. Escape rule waives errors occurring before appellant’s escape, but not after. Remanded to conform sentence as written to sentence as spoken.
STATE OF MISSOURI, Respondent vs. ALLEN K. HOGAN, Appellant
Missouri Court of Appeals, Southern District - SD36321

Hearing on Self-Representation Required
When defendant’s trial counsel withdrew, circuit court started and finished trial without determining whether defendant “knowingly, voluntarily and intelligently waived her right to counsel.”  Reversed and remanded for new trial.
STATE OF MISSOURI, Plaintiff-Respondent vs. PAMELA RUTH CAMPANELLA, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36578

Stalking Conviction Affirmed
On charges of stalking and violating a protective order, circuit court did not err in entering victim’s statement into evidence because that statement described defendant’s actions and was not mere character evidence. “A defendant's history of threatening or violent conduct regarding the same victim can be particularly probative in adult abuse cases to show a defendant's intent.” Evidence supported a reasonable inference that defendant’s conduct was directed at victim.
STATE OF MISSOURI, Respondent vs. STEPHEN WAYNE CRIDER, Appellant
Missouri Court of Appeals, Southern District - SD36540

Pursuit of Victim Negates Self-Defense
Self-defense supports the use of deadly force to protect defendant from serious bodily harm, but not from a threat to property. Defendant’s pursuit of victim negated self-defense. Evidence supporting self-defense includes victim’s history of violence, but victim’s conviction  for an out-of-State conviction 30 years ago did not show defendant’s state of mind, so circuit court did not err in excluding it.
STATE OF MISSOURI, Plaintiff-Respondent v. SAMUEL JERRY WHITAKER, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36011

Employment Security

Workers Were Employees
The difference between employees and independent contractors depends on “the common law of agency right to control” “the manner and means” of doing the work, for which Missouri uses the IRS’s 20 factors, and appellant had the burden of proof on that issue. The scheduling factor weighed neither way, the place of work factor was inapplicable because pet-sitting must happen at the client’s home, and the absence of business expense reimbursement weighed in favor of independent contracting. But factors showing employment included appellant’s practice of “counseling sitters regarding client complaints, [appellant’s] specific prohibition of delegating work to third parties, the possibility of sitter dismissal for failed compliance, and [appellant’s] extensive dependence on its sitters' services [.]”
417 Pet Sitting, LLC vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD83833

Evidence

Excluded Evidence Would Not Have Helped
To preserve an objection to the exclusion of evidence, defendant had to make an offer of proof unless the record shows that everyone understood that the circuit court was excluding an entire category of evidence that would have helped defendant. Defendant would not have been helped by evidence that he had not used a prescription for stronger drugs, eight years ago, than he was charged with possessing. Therefore, the exclusion cannot have caused manifest injustice or a miscarriage of justice, so the Court of Appeals declines plain error review.
STATE OF MISSOURI, Plaintiff-Respondent vs. JAMES DARRON BEERBOWER, JR., Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36438

Family

Relocation Denied
Relocation would give respondent more overnights, but only during breaks in the school year, so circuit court did not abuse its discretion in ruling that relocation is not in the children’s best interests. The lack of evidence that appellant had not sought full-time employment did not negate a finding that children limited appellant’s employment outside the home. Evidence that respondent sought no more time with children than allowed by decree did not negate a finding that respondent maintained meaningful contact with children.
Hilary O'Brien vs. Michael O'Brien
(Overview Summary)
Missouri Court of Appeals, Western District - WD83197

Insurance

Other Insurance Clause Unambiguous
Construction of an insurance policy is a matter of law subject to review de novo. Automobile insurance policies’ uninsured motorist coverage limited their coverage to statutory minimums if any of their exclusions were unenforceable, which described the policies’ “other owned vehicles” exclusion, which triggered the limitation to statutory minimums. Policies’ “other insurance” clause provided that when other insurance paid the statutory minimum, “the provisions of this coverage remain unchanged.” That meant that the policy paid only the statutory minimum.  
JOYCE COPLING, Appellant vs. AMERICAN FAMILY MUTUAL INSURANCE COMPANY, S.I., Respondent
Missouri Court of Appeals, Southern District - SD36609

Post-Conviction

No Prejudice Shown in Procedure for Sentencing
Circuit court’s instructional error is a matter for direct appeal, but post-conviction proceedings address trial counsel’s failure to submit an instruction. An instruction on a lesser-included offense is due if conviction on the lesser included offense is possible but, because the victim’s age was an element of the offense, the lesser included offense could not have occurred during the time period described in the charging instrument. “Notably, [appellant’s] counsel argued, both at trial and on appeal, that the Victim’s equivocal testimony concerning whether [the events alleged occurred] in the Summer of 2002, or instead in the Summer of 2003, should result in [appellant’s] outright acquittal.” Appellant did not show that deprivation of a jury-recommended sentence caused any prejudice in that appellant did not show “a reasonable probability of a different sentencing outcome.”
Joseph B. Sprofera vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82443

Trial Counsel’s Arguments on Mental Health Were Sufficient
Movant pleaded guilty to avoid a jury hearing about his criminal history, which was an element of the offense charged, so a jury would have heard about even if stipulated. Therefore, trial counsel’s failure to suggest a stipulation did not show that trial counsel was ineffective. Movant did not show that trial counsel’s advocacy, as to movant’s mental health issues, was less than diligent or prejudicial.
MARCUS L. JOHNSON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36496

No Notice to Public Defender, But No Abandonment
Because there is no right to effective post-conviction counsel, there is no relief from ineffective post-conviction counsel, including the abandonment doctrine. The abandonment doctrine’s purpose is to enforce the requirement that the circuit court appoint post-conviction counsel, which virtually does not happen when post-conviction counsel fails to timely file an amended motion. The same result occurs when the circuit court fails to notify counsel of the appointment, but that does not count as abandonment.
BILLIE J. BORSCHNACK, Movant-Appellant vs. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36451

Workers’ Compensation

No Evidence Needed to Deny Claim
Claimant challenged the clarity of the Labor and Industrial Relations Commission’s decision, adopting all but one sentence of an ALJ’s award, but the Court of Appeals “can readily understand the thorough and thoughtfully-written award” without the extraneous sentence. Claimant has the burden of proof, and the Commission need not believe claimant’s evidence, so no evidence is necessary to support denial of a claim. The Commission’s credibility determinations bind appellate courts, so Court of Appeals “must reject Claimant’s arguments that his expert was credible.”  
STEVEN A. SHIPLEY, Appellant vs. STATE OF MISSOURI OFFICE OF ADMINISTRATION, and TREASURER OF MISSOURI AS CUSTODIAN OF THE SECOND INJURY FUND, Respondents
Missouri Court of Appeals, Southern District - SD36643