Case summaries for Oct. 25-31, 2024

Appellate | Administrative | Civil | Contract | Consumer | Criminal | Employment security | Evidence | Family | Insurance | Orders of protection | Personal injury | Post-conviction | Real estate

Administrative

Duty to exclude repetitious evidence applied 
Contested case decisions of the Public Service Commission were subject to review for statutory authority and support in the record. Statute and regulation provided that the Commission’s Regulatory Law Judge had a duty, and the authority, to restrict cross-examination to exclude unduly repetitious cross-examination. To preserve an evidentiary ruling on cross-examination for appeal, an offer of proof was unnecessary because an offer of proof preserves testimony, while a cross-examiner did not know what the testimony would be; and the claim of error was plain to all. The Commission’s findings of fact carried a presumption of correctness and record supported those findings. The Court of Appeals affirmed the decision. 
(Overview summary) 
In the Matter of The Application of Grain Belt Express LLC for an Amendment to Its Certificate of Convenience and necessity Authorizing It to Construct, Own, Operate, Control, Manage and Maintain a High Voltage, Direct Current Transmission Line and Associated Converter Station; Missouri Public Service Commission, Et Al. vs. Missouri Farm Bureau, Missouri Soybean Association and Missouri Cattlemen's Association 
Missouri Court of Appeals-Western District – WD86854

Findings of fact explained 
Statutes required that an agency’s decision in a contested case to include written separately stated findings of fact. Findings of fact were inadequate when they “merely recite a chronology of the evidentiary hearing [.]” Findings of fact were adequate when they resolve disputed allegations and show the bases for the agency’s ruling including by reference to evidentiary exhibits. Findings of fact had to stand on substantial and competent evidence, meaning probative evidence, which included hearsay admitted without objection. That described letters and emails from local officials and residents in opposition to a conditional use permit application. That evidence supported denial and evidence in support was not relevant on appellate review. That ruling did not constitute an unconstitutional taking. 
(Overview summary) 
Double AA Market, LLC, Appellant, v. Mona Parsley, et al., Respondents. 
Missouri Court of Appeals-Eastern District – ED112331

Appellate

No re-weighing of evidence
Juvenile was adjudicated guilty of conduct that, if an adult, would render juvenile guilty of a crime. The crime was class D felony of stealing from juvenile’s place of employment. Juvenile raised the affirmative defense of duress in circuit court, alleging and testifying that juvenile’s manager coerced juvenile into stealing by threats. The circuit court found otherwise, and that determination was for the circuit court to make and not for appellate courts to re-make. The Court of Appeals affirmed the judgment.
IN THE INTEREST OF D.E.P., JR., GREENE COUNTY JUVENILE OFFICE, Respondent v. D.E.P., JR, Appellant
Missouri Court of Appeals-Southern District – SD38420

Civil

Account stated v. action on account 
Plaintiff’s petition claimed relief on an account stated. A claim for an account stated addressed an agreed balance due on an ongoing account. Plaintiff offered evidence of specific transactions, recovery on which was relevant only to an action on account, which was outside the scope of the pleadings. Defendants objected, barring trial by consent and preserving the matter for appeal, and overruling that objection was error. The evidence did not conform to the pleadings: entering judgment on an account stated when the record showed a dispute as to the amount due was error. The Court of Appeals reversed the judgment and remanded the action for circuit court to reassess court costs in defendants’ favor. 
THAYER FARM CENTER/MEYER FEED, Plaintiff-Respondent v DON BUSH, SR., JALONNE BUSH, DON BUSH, JR., and SALLY BUSH, Defendants-Appellants 
Missouri Court of Appeals-Southern District – SD37750

Contract

Federally barred provision stricken, remainder severable 
The parties made a new contract under which plaintiff mobile home park operator granted defendant cable company exclusive access to its residents for a percentage of the cable fees. The new agreement’s integration clause extinguished all previous contractual provisions. Then a Federal Communications Commission regulation barred such exclusivity provisions, so defendant terminated the contract, and plaintiff sued. The circuit court’s judgment voided the entire contract based on the exclusivity provision. The exclusivity provisions were of the type barred, but the federal regulation expressly left any other provision in any contract unaffected, and the contract also had a severability clause. The proper remedy was to strike the exclusivity provisions only, including the percentage that plaintiff was to collect, and preserve the parties’ agreement as to non-exclusive access for the park’s residents. Those remaining provisions constituted consideration sufficient for both parties. 
(Overview summary) 
Mobile National Development Co., LLC, Appellant, vs. Spectrum Mid-America, LLC, Respondent. 
Missouri Court of Appeals-Eastern District – ED112409

Consumer

Notices okay for sale of repossessed collateral 
Statutes embodying the Uniform Commercial Code provided that the sale of collateral securing a transaction had to occur after pre-sale notice. The notice recited a private sale, which was accurate, because it was an auction for car dealers only to which the public was not invited. The notice had to set forth the date after which the sale would occur, which it did by reciting the date as 10 days from the notice’s date. The notice’s description a potential deficiency was accurate and not unreasonable. Statute that allowed collection of interest on a secured loan did not bar pre-judgment interest nor the recitation of potential pre-judgment interest in its pre-sale notice. An overstatement of repossession costs by one percent of the redemption amount did not undermine the pre-sale notice. Letterhead with address and phone number was sufficient authentication of the pre-sale notice. 
(Overview summary) 
Americredit Financial Services, Inc., D/B/A GM Financial, Appellant/Cross-Respondent, vs. Nicole M. Bell, Respondent/Cross-Appellant. 
Missouri Court of Appeals-Eastern District – ED112095 Consolidated with: ED112097, ED112098, ED112167, ED112187, and ED112188

Criminal

No more conversions of consecutive sentences to concurrent sentences 
When petitioner committed the offenses, statutes allowed the Department of Corrections to convert certain consecutive sentences to concurrent sentences, but an amendment eliminated that authority before petitioner made his request for conversion, so the Department denied the request. In an action for declaratory judgment, petitioner argues that the denial constituted an ex post facto application of law. “An ex post facto law is a law that ‘provides for punishment for an act that was not punishable when it was committed or that imposes an additional punishment to that in effect at the time the act was committed.’” But the pre-amendment statute never gave petitioner the right to conversion—nor to a hearing, nor even consideration of his request—so neither the decision nor the statute operated ex post facto. Also, petitioner failed to allege facts supporting his request. The Court of Appeals affirmed judgment on the pleadings for the Department. 
(Overview summary) 
Keith Roy vs. Missouri Department of Corrections 
Missouri Court of Appeals-Western District – WD86716

Felony resisting a stop by fleeing shown 
Trooper testified that defendant was trying to evade pursuit, defendant objected, and circuit court overruled the objection. Whether the circuit court erred was irrelevant because the testimony was cumulative and, therefore, not prejudicial. And “calls for speculation was not a sufficiently specific objection. The elements of class E felony resisting a lawful stop included a substantial risk of serious physical injury or death, which the State alleged that defendant did by driving at a high rate of speed. A high rate of speed could depend on miles per hour in part, but also road conditions. The evidence was sufficient for a finding of guilty. 
STATE OF MISSOURI, Plaintiff-Respondent vs. RICKY ARNOLD, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38137

Evidence identified defendant 
Victim testified that four other people were in the room where she suffered a beating. One was her father, who was recovering from spinal surgery. Two were women who held her by her arms while the fourth person broke a board over the back of her head from behind. Though victim did not see defendant break the board across the back of victim’s head, defendant was the only other person in the room. That testimony was sufficient to identify defendant as the person who swung the board. No plain error in an earlier bill of costs charged to defendant was demonstrated by a later bill for court costs charged to the State. 
STATE OF MISSOURI, Plaintiff-Respondent v. TIMOTHY GREEN, JR., Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38373

Habeas corpus restored status quo ante plea bargain 
Child molestation in the first degree was a class B felony but it was a class A felony if the State showed the victim’s age was under 12 years old and one other specified factor. No other specified factor was ever pleaded or proved despite petitioner’s Alford guilty plea to class A felony child molestation. On those facts, petitioner procedurally defaulted on all claims for relief by failing to raise them in any motion for relief, until the petition for habeas corpus relief. Habeas corpus relief was always available for a defective sentence or for extraordinary circumstances, both of which described petitioner’s facts. The Court of Appeals issued the writ of habeas corpus, vacated petitioner’s conviction, and remanded for further proceedings. Because the guilty plea was the result of a plea bargain, and a plea bargain constituted a contract, the proper relief was rescission. That meant restoration of the status quo ante: the State lost petitioner’s Alford plea and petitioner lost the dismissal of several other charges carrying severe sentences. “Habeas relief after a guilty plea or Alford plea verily embodies the saying, ‘Be careful what you wish for.’” 
IN RE ROBERT J. BRANSON, Petitioner v. MICHELE BUCKNER, WARDEN, SOUTH CENTRAL CORRECTIONAL CENTER, Respondent 
Missouri Court of Appeals-Southern District – SD38312

Deliberation shown 
The elements of first-degree murder included deliberation, which required evidence of reflection, but the inference of a mere instant was enough. The State satisfied that element with evidence that defendant repeatedly threatened to shoot victim; and when victim turned his back on defendant, defendant stepped back, took aim, shot victim three times; and that defendant fled without procuring aid. The circuit court did not err in denying defendant’s motion for acquittal. 
(Overview summary) 
State of Missouri, Respondent, vs. Kennice L. Brock, Appellant. 
Missouri Court of Appeals-Eastern District - ED111907

Employment security

Appellant had to address dismissal of claim, not merits of claim 
On appeal from decisions of the Labor and Industrial Relations Commission, appellate courts reviewed only the decisions made, so any appellate briefs had to charge reversible error in the respective decision. The Commission never reached the merits of appellant’s claim, and dismissed that claim for failure to appear at a telephone hearing, so only the dismissal was subject to appeal. But appellant’s brief argued only the claim’s merits, which the Commission never decided. The Court of Appeals dismissed the appeal. 
(Overview summary) 
Dana Jensen vs. Division of Employment Security 
Missouri Court of Appeals-Western District – WD86895

Offer of proof too vague 
During the State’s case in chief, defendant wanted to play a video-recorded interview for impeachment, but the circuit court ruled against playing the interview because the State intended to play it at the close of its case. An offer of proof was necessary to preserve the circuit court’s ruling for appeal, but defendant did not identify the parts of the interview at issue at trial nor in a motion for new trial, so the matter was unpreserved; and the Court of Appeals declined plain error review. Any inconsistencies in any witness’s testimony were for the jury to resolve the evidence supported a conviction for second-degree child molestation. Inconsistencies between the judgment as spoken and the judgment as written constituted a clerical error subject to correction nunc pro tunc so the Court of Appeals remanded the judgment to conform the written judgment to the spoken judgment. 
(Overview summary) 
State of Missouri vs. Johnny Sherman Pardee 
Missouri Court of Appeals-Western District – WD86080

Evidence

No prejudice when other evidence supported defense
To preserve for appeal a ruling excluding evidence, an offer of proof was unnecessary, because the transcript showed that the circuit court and all parties knew the evidence at issue. The contested evidence was testimony about an order of protection, which defendant thought had expired, to negate any knowing mental state about violating such orders. But no prejudice resulted from the exclusion of that evidence because defendant presented other evidence on his mental state. The Court of Appeals affirmed the conviction.
STATE OF MISSOURI, Plaintiff-Respondent v. MATTHEW TODD TETMEYER, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD38315

Family

Time in foster care supported termination of parental rights 
Statutes allowed termination of parental rights, if in a child’s best interests, on proof of a statutory ground. The statutes provided multiple grounds for terminating parental rights but only one was necessary. Grounds for terminating parental rights included parental unfitness, which the statute presumed if the child had spent a specified amount of time in foster care. That included foster care resulting from parent’s incarceration, though the incarceration was not per se cause for terminating parental rights, depending on the effect on the child. The circuit court did not err in finding that time in foster care allowed termination of parental rights. As to whether termination of parental rights was in the child’s best interests, the statutes provided multiple factors to determine, of which any one supported termination. Therefore, so a challenge to less than all factors found left unchallenged factors supporting termination, requiring affirmation of the judgment terminating parental rights. 
In the Interest of Z.R.L.C., GREENE COUNTY JUVENILE OFFICE, Respondent vs. C.R.A.W., Appellant 
Missouri Court of Appeals-Southern District – SD38520

Record had to be re-opened for required documents 
In an action for adoption, the most important factor was the child’s best interest, and statutes informed that determination by requiring investigations and the filing of reports. On a motion to re-open the record, the moving party’s lack of diligence was grounds for denying the motion. Incomplete and stale compliance show that no independent determination occurred and could not support a judgment. Post-judgment compliance was irrelevant. The circuit court abused its discretion by denying a motion to re-open the record for the filing of required reports. The Court of Appeals reversed the judgment and remanded the action with the abjuration that an adoption proceeding’s primary purpose is not to litigate paternity. 
(Overview summary) 
In the Matter of M.D.P., a minor., Respondent, vs. T.P., Appellant. 
Missouri Court of Appeals-Eastern District - ED112029

Insurance

Limitations of liability did not make coverage illusory or ambiguous 
Underinsured driver coverage had a limitation of liability that set a maximum “minus the total of all sums paid or payable from all bodily injury liability bonds or policies applicable at the time of the accident.” Those reductions did not make the coverage illusory or ambiguous, because the policy never promised the maximum, and the policy plainly stated that the recovery could be zero. And insurer paid out more than zero. The Court of Appeals affirmed summary judgment for the insurer. 
(Overview summary) 
Robert Preston vs. Progressive Direct Insurance Company 
Missouri Court of Appeals-Western District – WD86801

Orders of protection

Appeal focused on underlying dispute, not reversible error; dismissed 
Rules of appellate procedure protected the appellate courts’ neutrality by making sure that appellants described reversible error instead of appellate courts becoming advocates. Appellant cited no reversible error in the issuance of an order of protection and addressed only the dispute that resulted in the order. “As [Appellant] raises no claim of trial court error, and simply asserts abstract claims unrelated to the trial court’s renewal of the Full Order of Protection, we must dismiss his appeal.” 
(Overview summary) 
J.R. vs. P.S. 
Missouri Court of Appeals-Western District – WD87033

“Victim blaming” did not support reversal 
Statute governing full orders of protection allowed extensions of ten years on factors that included a “serious danger to the physical or mental health of the petitioner.” Such findings had support in petitioner victim’s testimony of repeated physical and verbal assaults notwithstanding petitioner’s repeated meetings to pacify respondent. “Appellant paints an incomplete picture of his and [victim’s] relationship and engages in victim blaming. [The statute] protects all victims who can prove by a preponderance of the evidence they endured domestic violence, stalking, or sexual assault. . . . A person does not forfeit the law’s protections just because they failed to immediately cease all communications with their abuser and engage the legal system.” Case.net was not a criminal record but the circuit court could take judicial notice of circuit court records. Even disregarding further supporting evidence outside the record, sufficient evidence supported the judgment, so the Court of Appeals affirmed the judgment. In challenging the judgment granting such extension as against the weight of the evidence, appellant failed to cite evidence supporting the extension, an essential element of such an appeal. “This Court cannot determine why a proposition lacks probative value if the party does not fully identify all favorable evidence supporting that proposition.” 
(Overview summary) 
K.E.S., Respondent, vs. S.R.S., Appellant. 
Missouri Court of Appeals-Eastern District – ED112164

Personal injury

Action under protection of lawful commerce in arms act dismissed 
The federal Protection of Lawful Commerce in Arms Act provided sellers of firearms and ammunition a qualified immunity from any action for damages “resulting from the criminal or unlawful misuse of a qualified product by the person or a third party.” Plaintiff alleged that defendant negligently conducted a transaction, resulting in the firearm’s use in a criminal assault on plaintiff, so the Act barred that claim. The circuit court did not err in dismissing the action. The circuit court also did not err in denying a motion to amend the petition because that motion proposed to add a claim for negligent entrustment, which would not have cured the petition’s deficiencies. 
(Overview summary) 
Jody Hendrick, Et Al. vs. Academy I, LP, D/B/A Academy Sports + Outdoors, Et Al. 
Missouri Court of Appeals-Western District – WD86911

Prejudgment interest demand letter, format, and delivery okay 
Statute provided that, in an action for wrongful death, the elements of a claim for prejudgment interest included a “writing . . . sent by certified mail return receipt requested [including] written authorizations sufficient to allow the party, its representatives, and liability insurer if known to the claimant to obtain records from all employers and medical care providers[.]” That plain language was satisfied when plaintiff sent such writing to defense counsel because counsel was the representative of insurer, so counsel’s receipt of the writing constituted delivery to insurer. Whether defense counsel’s duty to the insured made any difference, appellant did not argue in circuit court, and so could not raise on appeal. The list of employers did not have to be a separate document. 
(Overview summary) 
Jill Mabie, Individually, and As A Representative of the Wrongful Death Class of Decedent, Charles Mabie vs. Somona Mason a/k/a Somona Anderson 
Missouri Court of Appeals-Western District – WD86861

Landowner liability for inherently dangerous activity discussed 
In a claim for negligence, the elements included a duty of defendant to plaintiff. Landowners had a general duty to make their property safe for invitees. Landowners had no duty to independent contractors because of the contractors’ independence from the landowner, but exceptions to that doctrine included ultrahazardous activity. “Whether an activity is inherently dangerous is initially a question of law for a court to determine if a party has (or could) make a submissible case [and o]nce a court determines the case is submissible, it becomes a question of fact for the jury.” Negligence did not generally apply because logging was not inherently dangerous and landowner was not trying to avoid liability by contracting. Premises liability did not apply because plaintiff was the contractor’s invitee, not landowner’s invitee. Inherently dangerous activity was subject to its own claims and defenses including the exclusive remedy of workers’ compensation. “Any business that engages in potentially hazardous activities and does not purchase a workers’ compensation policy is gambling with its employees’ health and wellbeing. ‘[T]he cost of workers' compensation insurance is a cost of doing business.’” The circuit court affirmed judgment for defendant.
LUCAS HOLTERMAN, Appellant vs. LAVERNE COPELAND, Respondent 
Missouri Court of Appeals-Southern District – SD38164

Post-conviction 

All-or-nothing defense was sound strategy 
A claim of ineffective counsel required movant to show prejudice from substandard performance, so a sound defense strategy negated such a claim. Sound strategy included trial counsel’s decision on whether to call an expert witness on eyewitness testimony or to raise the same issues by cross-examination. Trial counsel’s choice was sound, especially against the background of the approved instruction on eyewitness testimony, and negated any alleged prejudice. On the reasonable all-or-nothing defense of misidentification, offering a lesser included offense instruction would have been counterproductive. The circuit court did not err in denying relief. 
(Overview summary) 
Choeye Young, Appellant, v. State of Missouri, Respondent. 
Missouri Court of Appeals-Eastern District - ED111892

Real estate

Liquidated damages and specific performance awarded against buyers 
For the sale of real property, the parties made a contract that provided remedies, including retention of earnest money if the sellers terminated the contract. The sellers did not terminate the contract, the buyers did. On buyers’ termination of the contract, specific performance was within the circuit court’s discretion, and buyers did not challenge that exercise of discretion by claiming a misapplication of law. No misapplication of law occurred, in that sellers claimed that the circuit court applied specific performance when an adequate remedy was available at law, while the judgment expressly stated that no adequate remedy at law was available. “The remedy at law for damages and the remedy in equity for specific performance are not exclusive of each other, but are cumulative where the remedy at law is inadequate.” And buyers did not challenge the circuit court’s finding on the adequacy of liquidated damages. The Court of Appeals affirmed the judgment and remanded to determine attorney fees on appeal. 
THOMAS J. BROWN, III, Trustee of Thomas J. Brown, III, Revocable Trust U/A/D May 13, 2021, Respondent vs. DARREN and DAPHNE JERNIGAN, Appellants 
Missouri Court of Appeals-Southern District – SD38280