Case summaries for Oct. 27 - Nov. 2, 2023

Appellate | Civil | Criminal | DWI | Elections | Employment | Insurance | Personal Injury | Post-Conviction | Workers' Compensation

Appellate

Deficiencies require dismissal
“Where a party has been warned of briefing deficiencies and persists in repeating the same errors, [an appellate court] should not ‘act as an advocate for [the appellant] to overcome these problems.’” After a chance to correct deficiencies specified, deficiencies remained in appellant’s brief, so the Court of Appeals denies another chance and dismisses the appeal. 
Olga Sparks vs. Joseph Michael Sparks
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85864

Deficient appellant’s brief requires dismissal
Rules of appellate procedure require appellant’s brief to set forth facts relevant to appellant’s theory and reference the record in its statement of facts, describe an error and why it is reversible, and address all grounds for the challenged ruling. After a description of deficiencies and an opportunity to correct them, the deficiencies remain. Unable to discern appellant’s arguments, the Court of Appeals dismisses the appeal.  
Brandon McNeese vs. John Wheeler, et al.
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85812

Civil

New testimony, new trial
The circuit court has discretion to order a remedy when an expert’s testimony changes. At deposition, defendants’ expert testified that a certain treatment was available to plaintiff but at trial, for the first time and without disclosure, testified that the treatment was not available to plaintiff. Equivocation in the defense expert’s testimony was not the fault of plaintiff’s expert and does not aid the defense. The circuit court granted a new trial based on surprise, is subject to abuse of discretion on appeal, and is affirmed.
Z.R., a Minor, By and Through Her Mother and Next Friend, T.R. and By and Through Her Father and Next Friend, R.R. vs. Kansas City Pediatrics, LLC, and Scott Dattel, M.D.
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85751

Criminal

Second identification okay   
A claim of ineffective counsel is not subject to direct appeal. Despite a mistaken initial identification by photo line-up, a corrected identification by in-person line-up was admissible when not suggestive and when conducted by a blind administrator. On a motion to suppress, the State carried its burden of proving that defendant waived the right to counsel with evidence of repeated Miranda warnings and repeated voluntary statements. “Overwhelming evidence” showed that defendant committed first-degree robbery and felony murder, so the circuit court did not err in denying a motion for acquittal.    
State of Missouri, Respondent, v. Teraz Bateman, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED111111

Remedy for juror misconduct addressed   
Failure to contemporaneously object left only plain error review for proceeding on a second amended information. Proceeding on a second amended information. No plain error occurred in proceeding on the second amended information because it did not prejudice the defense. On appeal of a criminal conviction, an appellate court will “review the record in the light most favorable to the verdict, take as true the evidence and all logical inferences that support a finding of guilt, and ignore all evidence and inferences to the contrary.” The elements of child molestation in the first degree include a purpose involving “sexual desire,” and that purpose is subject to proof by inference from other facts, which had support in evidence of repeated touching by defendant on four victims. As to a fifth victim, the evidence supported a finding of an attempt to commit child molestation in the first degree. On allegations of juror misconduct, defendant agreed with the circuit court’s remedy and did not raise the matter until a motion for new trial, so defendant failed to preserve the issue for appeal. In not declaring a mistrial sua sponte, the circuit court did not plainly err because no prejudice resulted, as shown by the circuit court’s careful questioning of persons involved in the allegations. In denying the motion for new trial, the circuit court determined the credibility of persons involved, which the Court of Appeals will not redetermine, and declines plain error review. The circuit court need not investigate further than defendant asked so defendant did not show plain error. As to instructional error, “[a]t every opportunity, Defendant has changed his theory regarding how the trial court erred [and] thus has failed to preserve any instructional issue for appeal, and we may review for only plain error.” No plain error occurred when the instructions set forth a range of dates narrower than, but included in, the second amended information    
State of Missouri, Respondent, v. David F. Schneider, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED110653

Accomplice liability found   
Evidence supporting accomplice liability for drug trafficking included driving recklessly and fast far from home with a companion who possessed contraband, disobeying a law enforcement officer’s directive to stay put after a crash, fleeing while the officer was distracted, and fabricating an alibi. Also, when defendant’s companion put a hand in his pocket, law enforcement officer drew his weapon, defendant’s companion tossed away the contraband, the officer announced that an arrest was occurring, and defendant fled. Those facts showed the officer’s intent to arrest, an arrest in progress, and defendant’s knowledge of those facts, supporting an inference that defendant was escaping to avoid the arrest. Conviction for felony resisting arrest by flight affirmed.    
STATE OF MISSOURI, Plaintiff-Respondent v. CARL W. DILL, II, Defendant-Appellant   
Missouri Court of Appeals, Southern District - SD37153

DWI

Lack of record requires remand
On driver’s appeal de novo from the Director of Revenue’s suspension of driving privileges, the circuit court failed to make a record of the trial. The record on appeal was therefore insufficient for appellate review, but driver was not at fault, so the Court of Appeals remands the action for a new trial. 
Brendan Ford vs. Director of Revenue, State of Missouri
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85505

Elections

Reproductive freedom initiative fiscal notes and fiscal note summaries okay   
Statutes require the Auditor to prepare a fiscal note, and a summary of that fiscal note for any initiative, both of which must be accurate and impartial. That obligation requires the Auditor to solicit data on a “compressed [and] carefully orchestrated timeline [.]” Nothing requires the Auditor to investigate independently of the sources of the data gathered, to assign weight to any data over other data, or to consider data filed late. Fiscal notes and their summaries are subject to review by the Attorney General for form and content but not for substance. The Auditor accurately described the least amount of impact likely and, when other entities could not estimate a further fiscal impact, a fiscal note that says the impact is “unknown” meets the standard. The statutory word limit for the summary necessitates brevity in referring to speculative costs. The use of the words “opponents,” “estimate,” and “potentially” did not violate the standard. An appellate court will not grant respondent relief sought neither in circuit court nor on appeal. The judgment of the circuit court denying relief against the Auditor is affirmed.
Hannah Sue Kelly, Kathleen Anne Forck, and Mary Elizabeth Anne Coleman vs. Scott Fitzpatrick, Missouri State Auditor, John R. Ashcroft, Missouri Secretary of State, and Anna Fitz-James  
(Overview Summary) 
Missouri Court of Appeals, Western District - WD86594

Reproductive freedom initiative summary statements modified
Upon approval of an initiative’s form, the Secretary of State must prepare a summary that is accurate and impartial. That standard is unsatisfied when the initiative: applies to reproductive care generally, including birth control and post-partum care, but the summary says that the initiative relates to abortion only; enacts a strict scrutiny test for government regulation but the summary says that the initiative allows all abortions at any time by any person; employs partisan political phrases like “right to life” or “right to choose” and similar inflammatory but undefined phrases; misrepresents provisions for fetal viability, 24-week gestation, and minors. The circuit court had authority to re-draft the summaries not compliant with the standard and prescribed compliant language with two exceptions: failing to delete certain inflammatory and undefined language and failing to address provisions barring government discrimination. Rule allows an appellate court to render judgment, so the Court of Appeals prescribes language for the summaries and certifies them to the Secretary of State. 
Dr. Anna Fitz-James vs. John R. Ashcroft, Missouri Secretary of State
(Overview Summary) 
Missouri Court of Appeals, Western District - WD86595

Employment

Business judgment instruction okay
Any Missouri approved instruction requested by a party and applicable to the facts is mandatory and exclusive unless it misstates the law. The law governing a whistleblower action includes the business judgment rule, which is the subject of an approved instruction. That approved instruction accurately states the law, including amendments, so the circuit court did not err in rejecting a United States 8th Circuit instruction in lieu of the approved instruction. The instruction’s affirmative converse format is disfavored, and may be subject to better formatting by paragraphing, or alternative phrasing. But the instruction included no unnecessary evidentiary details, did not require the jury to assume that disputed allegations were true, and accurately stated the motivating factor standard. Preferring to determine the appeal on the merits, the Court of Appeals exercised its discretion in favor of reviewing appellant’s multifarious point relied on. 
Phillip Crisp vs. Missouri School for the Deaf, Department of Elementary & Secondary Education
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85660

Insurance

Kansas personal injury protection payment discussed
Kansas law applies to a Kansas contract for insurance. Insured’s Kansas automobile policy provided personal injury protection according to Kansas law. Kansas law sets a time for paying benefits and tolls that time at mailing. Mailing is subject to proof without the original instrument mailed, per the best evidence rule, because the content of that instrument was not at issue. Therefore, on insurer’s motion for summary judgment, insurer established the date of mailing by other evidence. Failing to raise a genuine dispute as to that material fact entitled insurer to a favorable ruling on that matter. Penalties for a delay in mailing are subject to good cause within the circuit court’s discretion and included the insurer’s need to verify that the payment was not a duplicate. Kansas law allows assignment of insurance benefits, including any amount subject to an attorney’s lien, insurer did not violate the attorney lien statute when it paid as instructed. 
Janet Perea and Mav Mirfasihi vs. Progressive Northwestern Insurance Company
(Overview Summary) 
Missouri Court of Appeals, Western District - WD86038

Personal Injury

Jones Act award affirmed   
Federal government’s Jones Act governs injuries to a maritime vessel’s crew. Missouri statute governing the admissibility of expert evidence premise admissibility on a reasonable basis. Such basis was present for plaintiff’s expert’ calculation of plaintiff’s non-economic and economic damages in the form of pre-injury earnings and post-injury earnings, based on documentation and corroborating testimony, and medical testimony. Appellant did not show that remittitur was due.   
Daniel Crowder, Respondent, vs. Ingram Barge Company, LLC, Appellant.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED111416

Post-Conviction

Failure to recall strategic basis does not negate strategic basis   
Trial counsel is presumed effective and is presumed to have a strategic basis for choices made at trial, and movant must show otherwise. When trial counsel chooses to make no objection and does not recall a strategic basis for that choice, it does not rebut the presumption that there was a sound strategy behind that choice. The State may voir dire the jury on preconceived prejudices as to the testimony of a single witness versus the absence of physical evidence, without demanding a commitment from the jury, so an objection would have been meritless. The circuit court did not err in finding that trial counsel’s impeachment of a witness was better as trial counsel conducted it than as movant argues trial counsel should have done it. For the circuit court to adopt a party’s proposed findings of fact and conclusions of law is disfavored but not unconstitutional, so an objection would have been meritless.    
Troy Callahan, Appellant, vs. State of Missouri, Respondent.   
(Overview Summary)   
Missouri Court of Appeals, Eastern District - ED111206

No relief on failure to call witnesses
“Trial counsel's decision to not call a witness is presumptively a strategic choice and ‘will not support a claim of ineffective assistance of counsel unless the defendant clearly establishes otherwise.’” The decision not to investigate or call witnesses for speculative, minimally probative, and less than credible testimony did not show that trial counsel was ineffective. Physical evidence and the testimony of multiple witnesses constituted overwhelming evidence of guilt that movant’s theory, of a conspiracy to fabricate the allegations, would not have changed. 
Gary Jolley vs. State of Missouri
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85522

Theory tried was already waived
In circuit court, movant alleged that trial counsel failed to retain a psychological expert for mitigation expert based on movant’s bipolar disorder. At hearing, movant offered evidence on adjustment disorder with mixed anxiety and depression but the circuit court found no diminished capacity to deliberate. On appeal, movant advances the theory tried in circuit court, but that was not included in the motion so movant waived it. Even if it were, movant did not show any error in the circuit court. Judgment denying relief affirmed.
Vicente Roldan-Marron vs. State of Missouri
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85510

Workers’ Compensation

Untimely answer admits allegations
Statutes provide that a claim cannot proceed until the employer receives timely notice of the claimant’s diagnosis. Rules of civil procedure do not apply outside of civil actions except where specifically provided by statute. Statutes governing workers’ compensation authorize the Labor and Industrial Relations Commission to provide the procedure for claims by publishing regulations. The regulation on initial pleadings provides that failure to file a timely answer admits all allegations of fact in a claim, except allegations that constitute legal conclusions, like a percentage of disability or the source of a condition. The source of claimant’s condition as found by the Commission, an occupational disease that arose out of and in the course and scope of his employment, had support in competent and substantial evidence. The absence of a reasonable defense allows an award of costs, but does not require such an award, and no abuse of discretion occurred when the Commission denied costs when legal issues remained. The appeal was not frivolous so the Court of Appeals denies an award of litigation expenses. 
Jason L. Collins vs. Century Ready Mix, Inc., and Treasurer of the State of Missouri - Custodian of the Second Injury Fund
(Overview Summary) 
Missouri Court of Appeals, Western District - WD86101 and WD86102