Case summaries for Oct. 29 - Nov. 4, 2021
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.
Deficient Briefing Requires Dismissal
Appellant failed to comply with rules requiring appellant to identify ruling challenged, how error is preserved, and set forth the standard for review as rules required. Those lapses “would require [the Court of Appeals] to extensively search the record for relevant facts, research the legal issues that might apply, and then apply that relevant authority to determine whether any reversible error had occurred[,]” which an appellate court will not do. For that, and for multifarious points, Court of Appeals must dismiss the appeal.
HSBC BANK USA, NATIONAL ASSOCIATION as TRUSTEE for NOMURA ASSET ACCEPTANCE CORPORATION, ALTERNATIVE LOAN TRUST, SERIES 2006-WF1 MORTGAGE PASS-THROUGH CERTIFICATES, and WELLS FARGO BANK, NATIONAL ASSOCIATION, Plaintiffs-Respondents v. BECKY ANN SPENCE, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36981, SD36982, SD36983, SD36984, and SD36985
Affirmative Avoidance Allowed
Appellant alleged continuous employment discrimination and retaliation in federal court as to one period of time and in circuit court as to another period of time. Those allegations constituted a single set of facts, and appellant’s multiple litigations constituted claim-splitting, as respondent correctly argued by amended answer in circuit court once the federal case concluded. The affirmative defense of claim-splitting is subject to the affirmative avoidance—an affirmative defense to an affirmative defense—of acquiescence, but only if appellant set forth that affirmative avoidance in a pleading. That pleading was late, so filing was subject to the standard of excusable neglect, meaning a mishap rather than indifference. Indifference did not characterize appellant’s failure to timely file because respondent’s amended answer pleaded res judicata, and not the splitting of claims. Splitting claims is barred by res judicata, but the two theories are not identical, in that res judicata requires a final judgment and does not apply while litigation is pending. Therefore, the circuit court erred, to appellant’s prejudice, in denying the late filing of appellant’s reply to respondent’s amended answer.
Suzanne Steinbach vs. Maxion Wheels Sedalia LLC
Missouri Court of Appeals, Western District - WD84502
Judgment Void Without Service
Actual notice is no substitute for service of process “and a judgment entered against a party without proper service on that party is void for lack of jurisdiction.” Where the record does not show service on the Director of Revenue, circuit court’s judgment against the Director is void, so the Court of Appeals reverses the judgment and remands for further proceedings.
Quentin Gabbert vs. State of Missouri and Director of the Department of Revenue
Missouri Court of Appeals, Western District - WD84168
Estoppel Bars Denial of Marriage’s Validity
“‘Since 1921, Missouri has prohibited ... common-law marriages [in favor of] solemnization and license requirements,’ otherwise known as a ceremonial marriage” and “a presumption of a ceremonial marriage arises upon a showing of open cohabitation, declaration and conduct by the parties and general reputation [.]” That showing also supports equitable estoppel, not validating the marriage, but precluding appellant from raising respondent’s “inability to show a marriage license or any record of the issuance of one.” Therefore, the circuit court did not err in concluding that it had authority to hear an action for dissolution of marriage, to divide property, and to award maintenance to respondent. The law disfavors ab initio nullity of marriage, and the presumption of lawful marriage is subject to rebuttal only by clear, cogent, and convincing evidence.
Christina M. Aldrich vs. Jonathan E. Aldrich
Missouri Court of Appeals, Western District - WD84127
Presumption of Parenthood Applied in Same-Sex Marriage
In an action for dissolution of marriage, appellant failed to preserve error as to property and debt division, by failing to cite such error in a motion for new trial, so the Court of Appeals denies that point. Appellant did not show how she preserved error as to child custody, and the record shows that appellant’s theory on appeal differs from that raised in circuit court, so the Court of Appeals denies that point. Any error regarding respondent’s standing was invited error, because appellant sought joint custody of child with respondent, and invited error is grounds for dismissal. But appellate courts must determine jurisdiction over, and the justiciability of, a matter even if not preserved or even raised by any party at any time. That includes an issue of standing raised first on appeal or sua sponte. Statutes, presuming that one spouse is the parent of a child born to the other spouse during marriage, are written in the masculine gender. But the statutes also provide that the masculine includes the feminine. Therefore, respondent was subject to the presumption of parenthood, and had standing to seek custody, even though respondent was female and appellant bore the child. Payments for pre-school and daycare are work-related, so whether a judgment characterizes them as tuition is irrelevant.
Danielle M. Schaberg, Respondent, vs. Jamie E. Schaberg, Appellant.
Missouri Court of Appeals, Eastern District - ED109200
Deceased Expert’s Opinion Admissible
The Labor and Industrial Relations Commission excluded vocational expert testimony because the vocational expert based his opinion partly on a conclusion that appeared in the reports of a deceased medical expert. But that conclusion also appeared in many other medical experts’ documents, on which the vocational expert also based his opinion, so that conclusion’s appearance in the deceased expert’s report was no basis for excluding the vocational expert’s opinion. And an expert never needs first-hand knowledge of the facts to render an opinion, so an expert witness may always rely on hearsay from an absent expert when offering an opinion, though one expert’s testimony cannot serve as a mere conduit for the testimony of another expert. Remanded for the Commission to consider the excluded testimony.
Patricia (Parrish) Otwell, Appellant, vs. Treasurer of Missouri as Custodian on the Second Injury Fund, Respondent.
Missouri Court of Appeals, Eastern District - ED109447