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Case summaries for Nov. 4 - Nov, 10, 2022


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.

Civil | Construction | Contract | Criminal | Family | Post-Conviction


Evidence Inadmissible on Summary Judgment 
In an action on a promissory note, the elements include a remaining balance due on the note, which lender movant for summary judgment showed by admissible evidence. To raise a genuine dispute as to that material fact, non-movant borrower offered evidence purporting to show the character and terms of the notes, which was inadmissible for two reasons. First, the evidence constituted parole evidence, because its purpose was to contradict the notes’ written provisions. Second, statutes require a writing for any credit agreement, and for any agreement to pay money. Separate writings may accomplish that purpose, but only if they refer to each other explicitly, or if they implicitly connect through their content. On a contract binding a corporation, a corporate officer had standing to claim fraud in the inducement, because that officer was personally liable on the notes. Failure to pay showed a breach of contract but not fraud. The elements of fraud include the right to rely on a representation, which one defending party negated with proof that the claimant borrower knew that the representation was false, but the other did not. As to that last matter, the circuit court erred in granting summary judgment, so the Court of Appeals remands for further proceedings and to determine attorney fees on appeal of all other matters. 
Pecos I, LLC, Respondent, vs. Jason S. Meyer, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110302 

Set-Aside of Default Judgment Is Separate from Other Judgments 
In an underlying action to collect homeowner association fees, the property owner defaulted, and the purchaser at sheriff’s sale spent money on insurance and management for the property. But the property owner brought a separate action, which resulted in a judgment separate from the underlying action, and from related actions. Like other judgments, a final separate judgment setting aside the default becomes subject to appeal 30 days after issuance, with an extension upon the filing of an authorized after-trial motion by a party. But that did not apply to purchaser’s motion for intervention because the purchaser was a mere movant for intervention, not a party, when the judgment became final. Finality, for a separate judgment setting aside a default, means that the judgment resolves all issues as to all parties, as to setting aside the default only, without regard to the underlying action or any related action. Therefore, no error in the separate judgment setting aside the default judgment was preserved in an appeal from the judgment in a related action. In purchaser’s related action for unjust enrichment against property owner, the elements included a benefit conferred to the owner. Purchaser at a sheriff’s sale could not show expenditures for insurance and management for the subject property, because the only benefit to the property owner was theoretical and contingent on events that did not occur. The judgment denying the claim for unjust enrichment is affirmed. The appeal from the separate judgment setting aside the default judgment in the underlying collection action is dismissed. 
Autumn Lakes Association, Plaintiff, v. Jame Q. Tran, Defendant-Appellant/Cross-Respondent, and TSJ Holdings, LLC, Third-Party Intervenor-Respondent/Cross-Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED110228

Meritorious Defenses Require Setting Aside Default 
Rule allows circuit court to set aside a default judgment on a showing of good cause and a meritorious defense. Showing a meritorious defense means alleging facts that, if true, would “adversely affect” the claim. If movant makes such allegations, the circuit court determines the truth of those allegations at a later trial on the claim and not when ruling on the motion to set aside. When ruling on the motion to set aside, the circuit court ruled on the credibility of movant’s allegations, so that ruling was premature. Remanded also for a determination on good cause. 
Stacy Hollifield vs. Las Cumbres, LLC 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84857                                              


No Compound Interest Under Prompt Pay Act 
A circuit court may enforce its judgment but only as issued. In an action under the Prompt Pay Act, appellant judgment debtor filed a motion for an order of satisfaction and judgment, which the circuit court denied for failure to pay compound interest. “Compound interest is interest upon interest, where accrued interest is added to the principal sum and the whole treated as a new principal for the calculation of interest for the next period.” The Act’s penalty provisions are exclusive and provide interest only on amounts due, which do not include interest, so they exclude the interest upon interest that constitutes compound interest. That result is unchanged by the Act’s provision for interest monthly instead of annually. 
Penzel Construction Company, Inc., Respondent, vs. Jackson R-2 School District, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110487  


Anticipatory Breach Requires Communication 
The elements of anticipatory breach by repudiation include notice of repudiation from the repudiating party and the other party’s acceptance of repudiation. Settlement contract included lender’s promise not to sue and borrower’s promise to pay. But, before borrower’s payment was due, lender filed an action to enforce the settlement. That action did not constitute anticipatory breach because the payment came due, and borrower failed to pay, before borrower received notice of the action. “Because [respondent] did not manifest to [appellant] any intent not to perform under the settlement agreement before [appellant] himself breached the agreement, [respondent]’s filing its breach of contract lawsuit was not an anticipatory breach by repudiation.” Borrower’s subsequent partial performance also negated any acceptance of lender’s repudiation. 
Professional Funding Company, Respondent, v. Joseph F. Bufogle, Sr., and Bufogle & Associates, P.C., Appellants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110482  


Basis for Guilty Plea Was Sufficient 
To assure that a guilty plea is voluntary, rule requires the circuit court to find a factual basis for a guilty plea before accepting such plea. The statutes allow an appeal from the circuit court’s finding, the rules on post-conviction relief do not bar such an appeal, and the appeal of an unpreserved challenge to that ruling is subject to review for plain error. Plain error did not occur when defendant pleaded guilty to involuntary manslaughter based on delivery of heroin to victim when defendant received contraband in exchange, the heroin turned out to be fentanyl, defendant abandoned victim after a second adverse reaction, and defendant left victim with more fentanyl.    
State of Missouri, Respondent, vs. Hunter Harris, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110074


Distant Foster Placement Okay 
Child had lived with foster parents, who relocated to the District of Columbia, but maintained contact with child. Child’s best interests favored placement with foster parents notwithstanding their remote re-location, the circuit court found, and so placed child with foster parents. A recent statutory amendment made that interlocutory order subject to appeal. A “fulsome analysis” of “abundant evidence” favoring that order shows no abuse of discretion, especially considering the statutory factors that determine such a ruling, and the conditions ordered to address those factors. 
In the Interest of: J.G.W.  
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED110147

Imputed Income Affirmed 
In a bench trial, no after-trial motion is necessary to preserve an issue already raised, but appellant failed to raise any issue as to an earned income credit. One point relied on charging multiple errors is multifarious and preserves no error for review. Circuit court’s valuation of property is a finding of fact that, when supported by the record, is not an abuse of discretion. Rules on child support allow imputation of income when a parent reduces income to avoid child support, which the record shows appellant did, when appellant chose to work fewer hours when no longer living in home with respondent and children. That finding had support in the record, including a determination that appellant’s tax returns were not credible. 
Bethany D. Harris vs. Douglas L. Harris 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84946              


No Failure to Advise, No Prejudice Shown 
On a charge of ineffective assistance of counsel, movant must show sub-standard performance. On an allegation of failure to advise movant about an alternative perpetrator defense, the circuit court determined the movant’s evidence to be less credible than the State’s evidence, and the Court of Appeals defers to that determination. Even if movant shows deficient performance of counsel, movant must show prejudice, which on a guilty plea, means that the omitted advice would have caused movant to demand a trial. On an allegation of failure to discuss instructions for lesser included offenses, the greater likelihood was conviction on the greater offense, and on many other offenses dismissed as part of the plea bargain. On an allegation of failure to object to argument outside the record, the record included the sentencing report containing the facts to which movant argues trial counsel should have objected, so such an objection would have been meritless. The circuit court’s determinations of no prejudice were not clear error.   
Edward D. Lusk, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109987