Case summaries for Nov. 6 - Nov. 12

ADR | Appellate | Attorneys | Criminal | DWI | Evidence | Family | Insurance | Post-Conviction

ADR

No Mandamus Against Referral to Arbitration
When a contract has an arbitration agreement, all disputed matters under the contract are presumptively subject to determination in arbitration, except a dispute as to whether a matter is subject to arbitration, which is presumptively subject to determination in circuit court. To show that a dispute as to whether a matter is subject to arbitration is presumptively subject to determination in arbitration requires clear and unmistakable evidence. Clear and unmistakable evidence appeared in a contract’s arbitration agreement, which incorporated by reference the rules of a professional association, which expressly provided that an arbiter shall determine the scope of the arbitrator’s own authority, including the “arbitrability of any claim [.]” An order granting arbitration is subject to review by writ of mandamus, not direct appeal. A challenge specific to that incorporation is necessary, in addition to any challenge against the contract as a whole or the arbitration agreement in particular, for relief from that provision.
STATE OF MISSOURI EX REL. SETH SCHERMERHORN, Relator v. THE HONORABLE MICHAEL CORDONNIER, Respondent
Missouri Court of Appeals, Southern District - SD36747

Appellate

Disregard of Rules Results in Dismissal
“The mere inclusion of documents in an appendix to [appellant’s] brief does not make them part of the record on appeal.” The record on appeal is the basis for the statement of facts, which must include references to the record on appeal, as must the argument. The argument must develop a point relied on by showing the significance of the facts under the applicable law. An appellate court must give its “role as neutral arbiter” precedence over “a party’s sense of justice . . . when their case is not decided upon the merits.” Dismissed.
Homer and Doretha Sharp vs. All-N-One Plumbing
(Overview Summary)
Missouri Court of Appeals, Western District - WD83368

Attorneys

Malpractice Action Accrued When Injury Known, Not When Damages Certain
Statute of limitations for negligence is five years, starting when a reasonable person knows that an injury has occurred, even if the amount of damages is unknown or additional damages are accruing. “[W]here the client [knows] of a potential legal malpractice claim, and has sustained present damages [,]” the time starts running, and “an uncertain future event (such as the conclusion of collateral litigation)” does not change that. So when clients became aware that malpractice in estate planning had injured them, that understanding started the time running, not the conclusion of later related litigation.
D. Lynn Duvall and Connie S. Duvall vs. Joseph J. Yungwirth
(Overview Summary)
Missouri Court of Appeals, Western District - WD83645

Criminal

Name Stays on SORA When Off Where Offense Happened
The 2018 amendments to the Missouri Sex Offender Registration Act classify the consequences of an offense based on age and severity. Registration in another State is grounds for registration in Missouri, and removal from registration in the State where the offense occurred is grounds for removal in Missouri, except for the most severe offenses. The most severe adult offenses result in registration for life, without regard to removal in the State where the offense occurred. Appellant committed a tier III offense as an adult in Illinois, and Illinois removed appellant from an Illinois registry, but those facts do not support removal from Missouri’s registry. Therefore, the circuit court did not err in dismissing appellant’s petition.
James Hixson, Appellant, v. Missouri State Highway Patrol and St. Louis County Chief of Police Jon M. Belmar, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108289

DWI

Fresh Pursuit Statute Irrelevant
On driver’s appeal from revocation of license for refusal of a chemical test, the elements of the Director’s claim for revocation include that driver refused a test, which includes a legitimate demand for a test. Whether the officer demanding the test was within his territorial jurisdiction may be relevant in a criminal action, but not in a civil action, so the Director need not show compliance with fresh pursuit law. Evidence showing that intoxication occurred while driving, not after, included driver’s inaccurate account to officer.
Johnny B. Stanton vs. Director of Revenue
(Overview Summary)
Missouri Court of Appeals, Western District - WD83551

Evidence

Foundation for Expert Testimony Same for Each Party
“The rules of evidence are applicable to all parties in a civil action regardless of the parties' burden of proof on a given issue.” Statute setting forth the foundation for expert testimony includes a reliable application of expertise to facts, which means a reasonable degree of medical certainty in medical malpractice cases, and any opinion less certain is irrelevant.  That standard is an element of any party’s proffer of expert evidence. Defendant’s verdict reversed and remanded for new trial.
Nicholas Linton, by and through his Mother and Next Friend, Arica Linton vs. Amy S. Carter, D.O. and Ferns, Matile, Perryman & Moore, et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD82637

Family

Form 14’s Paying/Receiving Designations Discussed
Form 14 requires circuit court to designate each parents as paying or receiving, which can “dramatically” alter the result, by $700 per month in this case. And no law provides guidance when parenting time is equal. Statutes and rules set forth the analysis for determining which parent must pay child support and appellant’s proposed presumption, that the parent with higher income pays, is not law. Appellant did not show that the circuit court’s designation was against the weight of the evidence. An allegation of error on Form 14 does not preserve any error, and does not show reversible error, unless appellant shows the corrected result.  
Lindsey M. Schuman vs. Joshua C. Schuman
(Overview Summary)
Missouri Court of Appeals, Western District - WD83305

Insurance

ERISA Allows Subrogation
United States ERISA statutes require an employer to draft a Plan Document, including specified information, which employer did by incorporating required information into a Summary Plan Description by reference. ERISA statutes allow equitable relief, which includes subrogation as provided under Plan’s provisions, Missouri’s ban on subrogation in personal injury cases notwithstanding. Appellant did not show that subrogation would inure to employer’s benefit or lead to a breach of plan’s fiduciary duty to beneficiaries. Failure to produce documents did not, alone, show bad faith supporting an award of attorney fees, especially in the litigation of a difficult issue.
Mary Pierce vs. Mo-Kan Sheet Metal Workers Welfare Fund
(Overview Summary)
Missouri Court of Appeals, Western District - WD83234 and WD83259

Post-Conviction

No Off-the-Record Extensions Allowed
Record does not show that the circuit court extended the time for filing an amended motion off the record, an off-the-record extension is ineffective anyway, and only an explicit extension is effective. Late filing of amended motion raises a presumption of abandonment requiring a circuit court inquiry. Remanded for inquiry.
Derron A. White vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83247

Meritless Challenges Not Needed
Prosecutor’s comment in closing argument about defendant’s failure to testify was brief, partly inaudible, and not prejudicial when DNA evidence and victim’s testimony favored conviction, and jury was instructed on the right to silence; so trial counsel’s failure to object could not have prejudiced movant.  Confrontation Clause bars entry of a report without an opportunity to cross-examine the report’s author, but allows an expert to testify to their own conclusions based on the report, so appellate counsel was not ineffective for basing the choice of points on appeal consistently with that law.
Derick T. Davis vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83193