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Case summaries for Oct. 30 - Nov. 5


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.

Administrative | Contracts | Criminal | Elections | EvidenceFamily | Post-Conviction | Workers' Compensation


First-Hand Knowledge Unnecessary
On an application for an occupancy permit, Board of Adjustment’s decision was a contested case. In a contested case, statutes make admissible a document that summarizes information from multiple sources, even when that document’s sponsor did not create that report, if the proponent lays the foundation described in the statute. Such a document constituted substantial and competent evidence to support a finding that flood damage exceeded the level allowed for occupancy to nine manufactured housing units. As to a tenth unit, the report did not show that flood damage exceeded the level allowed, so the Court of Appeals remands the case to circuit court for a judgment ordering the Board to “hold the further proceedings necessary to determine whether the [tenth] manufactured home . . . should be granted an occupancy permit.”  
State ex rel. Martin C. Heck, Jr. and Victoria Heck d/b/a Pacific Mobile Manor, Respondents, vs. City of Pacific and City of Pacific Board of Zoning Adjustment, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108730


Action on Invoices Too Late
Statute of limitations for contract actions is five years, with exceptions that include any action for payment upon a written contract, which is ten years. Ten-year limitation could apply to an invoice stating that buyer’s signature constituted a promise to pay. But the ten-year limitation did not apply to seller’s invoices, on which buyer’s only writing was a signature, the significance of which the invoice does not describe. “[T]he promise to pay money must arise from the writing's explicit language; extrinsic evidence cannot supply the promise.” Five-year limitation applied to the parties’ contract seller’s action to enforce that contract was too late, so circuit court should have dismissed that action, and the Supreme Court reverses the circuit court’s judgment.  
Di Gregorio Food Products, Inc., Respondent, vs. John Racanelli, d/b/a Racanelli's Cucina Pizza Express, Racanelli's Cucina, Racanelli's Delmar, Racanelli's Kirkwood, Racanelli's Fenton, and Racanelli's New York Pizzaria, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98443


No Reversal for Evidentiary Error
“A defendant's decision to try [their] case before a judge and without a jury has ‘fundamental evidentiary implications[:]’” the presumption that a circuit judge “does not give weight to erroneously-admitted evidence [,]” which makes it “nearly impossible to obtain a reversal based upon the improper admission of evidence in a court-tried case.” To rebut that presumption requires appellant to show, by reference to the record, that the circuit court expressly relied on inadmissible evidence for its findings of fact. Appellant failed to do so, and evidence unchallenged on appeal supports a conviction for domestic assault in the fourth degree, so the Court of Appeals affirms appellant’s conviction.
Missouri Court of Appeals, Southern District - SD36445

Prosecutor Testimony Prohibited
A presumption of prosecutorial vindictiveness arises on evidence of a “realistic likelihood” that prosecutor retaliated for exercise of a constitutional right, not on mere allegations, and defendant’s allegations did not even describe a realistic likelihood of retaliation. Deciding to seek the death penalty does not constitute a new charge and making that decision before trial, and after a change of prosecuting attorney, is not vindictive conduct. Why or how a prosecutor decided to seek the death penalty is intangible work product subject to protection by writ of prohibition. If defendant offers evidence of retaliation that supports a presumption of vindictiveness, the prosecuting attorney has discretion to offer that intangible work product.  
State ex rel. Matthew Becker, Franklin County Prosecuting Attorney, Relator, vs. The Honorable Gael D. Wood, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98416

No Plain Error in Mention of Deadly Weapon
On a charge of first degree robbery, the amended information alleged use of a dangerous instrument, but the verdict director told jurors to determine whether defendant used “what appeared to be a deadly weapon or dangerous instrument [.]” That variance was immaterial to notice of the charges because defendant knew that only a BB gun was at issue, and was not prejudicial to his defense because he waived objection, another amendment to the information would have cured the problem, and his defense did not deny the use of any weapon or instrument.
STATE OF MISSOURI, Respondent vs. LARRY W. TARVER, JR., Appellant
Missouri Court of Appeals, Southern District - SD36215


Candidate Showed Residency
Missouri Constitution requires a state representative to reside in the district that elects that representative. Residence is a matter of intent, as shown by conduct; which includes, but is not limited to, where family resides; and appellate courts defer to circuit court’s evaluation of evidence. Candidate sold a residence in the district, bought a house outside the district for the candidate’s family to reside in, and leased a residence within the district for the candidate to reside in. The lease might not establish a new residence in the district, but does show a continuation of the candidate’s established residence in the district, and candidate’s statement on loan documents—of intention to reside in the new house—did not outweigh candidate’s testimony. Circuit court did not err in refusing to strike the candidate from the ballot.
Victoria Datt, Appellant, v. Nicholas Schroer, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109243


Director of Revenue’s Records Discussed
On a charge of receiving stolen property by retaining it, evidence that defendant retained victim’s camper trailer included hitching the trailer and driving off with it from storage, and abandoning the trailer while chased by police did not negate that element.  Director of Revenue’s records are not testimonial evidence for Confrontation Clause purposes, are admissible into evidence by statute over hearsay objections without a business records affidavit when certified, and are not limited to use in DWI cases.   
Missouri Court of Appeals, Southern District - SD36257


Physical Custody Is Sole, Not Primary
Substantial evidence supporting an award of joint legal custody included appellant’s desire for input into child-rearing decisions. Substantial evidence supporting an award of sole physical custody to respondent included appellant’s non-compliance with medication, disregard of counseling on child-rearing, and violence toward children. Overnights with appellant were too few to constitute joint physical custody. The difference between joint physical custody and sole physical custody is “crucial” to the standard on a motion to modify. Judgment’s description of physical custody as primary “confuses the parties and has no statutory meaning” so Court of Appeals modifies the judgment. Statutes require circuit court to detail visitation rights, unless the circuit court concludes that visitation endangers the child, which requires support in findings of fact after a hearing; so reversible errors include vagueness of visitation, denial of visitation without findings in support, and delegation of future visitation details to a counselor not appointed by the circuit court.  
Sally A. White, Respondent, vs. Clayton H. White, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108036


Abandonment Inquiry Required
When appointed counsel fails to timely file an amended motion, circuit court must inquire into whether that failure is movant’s fault, and a ruling on the merits without that determination is subject to reversal and remand with instructions to determine whether counsel abandoned movant.
Shania A. Harness vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83510

Workers’ Compensation

Supplemental Decision Supports Ruling
When the Labor and Industrial Relations Commission affirmed the ruling of its administrative law judge, and issued its own supplemental decision, the Commission replaced the administrative law judge’s reasoning with the Commission’s own reasoning. The Commission’s findings of fact had support in expert medical testimony. Appellant failed to show otherwise because appellant failed to set forth the mandatory analytical format.  
Constance Comparato, Appellant, vs. Lyn Flex West, et al., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108870