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Case summaries for Nov. 10 - Nov. 16, 2023


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.

Appellate | Civil | Family | Juvenile | Local Government | Post-Conviction | Utilities


No appeal from orders on default and enforcement of settlement 
Appeal is generally available only from a final judgment. An independent action to set aside a default applies by rule to interlocutory orders and final judgments, requires a pleading that alleges facts in support of a good cause and a meritorious defense, and is subject to appeal only on issuance of a final judgment. An order granting a motion to enforce settlement is interlocutory, because the motion is collateral to the underlying action, and no final judgment exists until the circuit court finds that the parties have mutually released all claims and disposes of the action by dismissal. The parties’ dismissals were not subject to appeal, one because it left counterclaims pending, and the other because it was voluntary. As to the conduct of the parties and their counsel, “No one’s virtue star shone bright in this case. But mercifully, we need not reach the merits.” Appeal dismissed for lack of jurisdiction.  
Charles Roberts, Appellant, vs. The Reserve at Heritage, LLC, Jeffrey Feldman, and Craig Berger, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111313


JNOV for inconsistent verdicts discussed  
Verdicts for one defendant and against another defendant were consistent when neither claim was premised on the other. Any claim of inconsistent verdicts is due before the circuit court discharges the jury and the circuit court has no authority to grant relief on inconsistent verdicts sua sponte. Defendants filed their motion for judgment notwithstanding the verdict after jury discharge, and included no claim of inconsistent verdicts, so the circuit court erred in granting defendants’ motion for judgment notwithstanding the verdict based on inconsistent verdicts. Statute allows an award of costs to a partially prevailing defendant but focuses on the principal issue, and defendants prevailed on the principal issue, so the circuit court’s denial of costs against defendants did not constitute an abuse of discretion. But when the plaintiffs prevailed under a contract providing costs and attorney fees, the circuit court had no discretion to award attorney fees to the prevailing plaintiff. Remanded to determine the amount of the attorney fee and costs award.  
Missouri Court of Appeals, Southern District - SD37431


Setting aside judgment requires evidence 
In an action for dissolution of marriage, the parties reached a settlement that the circuit court incorporated into its judgment, including property division. Property division cannot be amended or modified but may be re-determined according to statutory procedure if the circuit court vacates that portion of its judgment. Rule allows relief from a judgment upon motion alleging enumerated grounds with evidentiary support for the motion’s allegations: verification, affidavit, or sworn testimony at a hearing. Respondent movant’s evidentiary support showed that movant sought enforcement of provision in the judgment, and that the parties disagreed as to meaning of that provision, but it described none of the grounds enumerated in the rule. Nonetheless, the circuit court vacated the judgment and issued an amended judgment. “[B]ecause the record before the [circuit] court failed to establish a basis for vacating the [judgment] under [the cited rule], we are constrained to reverse the trial court’s amended judgment.”  
Cherylene R. Combs vs. Gary Combs 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85653


Intent to arouse or gratify not shown 
When a juvenile is subject to allegations that would constitute a criminal offense for an adult, the standard of proof is beyond a reasonable doubt. The elements of third degree child molestation include the intention of arousing sexual desire, gratifying sexual desire, or intention of terrorizing the victim. An intention to terrorize the victim was not alleged, and evidence supporting intention of arousing or gratifying sexual desire for an adult might not support that intent for a juvenile. Circumstances surrounding the allegation did not show sexual arousal or gratification. Collateral incidents established juvenile’s sexual knowledge but had no demonstrated connection to the allegations. Adjudication reversed and juvenile ordered discharged.  
In the Interest of: C.B.K., Appellant, vs. Juvenile Officer, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111270

Local Government

Must re-create discarded records under Sunshine Law  
Sunshine Law statutes provide that a public governmental body’s records are open to the public. Statutes require law enforcement officers to create records regarding motor vehicle stops. The scope of a request for those records determines the public governmental body’s duty to produce those records so the public governmental body need not produce information that is not in those records, even if the information is related to those records. The Sunshine Law does not require a public governmental body to generate a new record for a requester. But respondent city contracted with the Regional Justice Information Services Commission (“REJIS”) to generate a report compiled from records of motor vehicle stops. It discarded those reports, but REJIS retained the reports. Therefore, the Sunshine Law required the re-production of the reports.  
Phillip Weeks, Appellant, vs. St. Louis County, Mo., City of Webster Groves, Mo., Defendants/Respondents, City of University City, Mo., and Regional Justice Information Services Commission (REJIS), Defendants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111496


Plea not coerced 
The pleadings and the record, including judicial admissions of the State spoken and written, establish that movant filed the initial motion and the amended motion timely. The possibility of a death sentence, and counsel’s advice of that possibility, do not per se constitute coercion. Whether counsel coerced movant into pleading guilty to second degree murder, to avoid the death penalty for second degree murder, was a question of fact that the circuit court determined by the credibility of witnesses. The circuit court was entitled to credit movant’s testimony at the plea hearing over movant’s later statements. The circuit court did not err in denying relief.   
Rashod L. James vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85347

Challenges to conduct a Faretta hearing not cognizable 
Movant waived counsel in the underlying criminal action, so the circuit court conducted a Faretta hearing to determine whether the waiver of counsel was knowing, voluntary, and intelligent. Upon conviction, movant sought post-conviction relief because the circuit court’s Faretta hearing did not include information on possible defense. But Faretta deficiencies are subject to direct appeal, which movant knew about but did not act upon, not post-conviction procedure. Judgment denying relief affirmed.  
JAMES ROBERT CARAWAY, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD37816

No prejudice shown 
Movant claimed prejudice from substandard performance of trial counsel. That standard is “difficult to meet” when the alleged failure is calling a witness for impeachment, especially where such evidence would have been cumulative and established no viable defense. Evidence of defendant’s disabilities was not relevant to the defense theory of accidental discharge after “a day-long binge of alcohol, marijuana, and methamphetamine [.]” That evidence of defendant’s disabilities would have made any difference at sentencing, movant did not show. Denial of relief affirmed.  
ROBERT A. VALLEY, Appellant vs. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals, Southern District - SD37653

No prejudice when plea deal gets less than maximum sentences 
A movant who has pleaded guilty can only support a claim of ineffective counsel by showing that, but for plea counsel’s deficient advice, movant “would not have pleaded guilty and would have gone to trial.” In return for the State dismissing three counts, movant pleaded guilty to three other counts. For each count to which movant pleaded guilty, movant received a sentence of ten years, all to run consecutively. Movant alleged that plea counsel advised that probation was possible but a disappointed hope for probation does not show deficient performance of counsel. Movant also alleged that plea counsel failed to advise of the possibility of consecutive sentences. But movant understood that, after trial, he could have received 30 years just on the counts to which he pleaded guilty. Movant “ultimately received less than the statutory maximum for each offense to which [movant] pled guilty” and so could show no prejudice. 
AARON M. BURNETT, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD37473


Water district retains territory 
Appellant developer’s land lay within city limits, and within the territory of respondent water district, which contracted with the city to provide water service to that land. Developer had no standing to challenge that contract. Missouri statutes authorized the creation of the district and vested the district with exclusive rights to provide water service within district territory. Federal statutes authorized lending to the district and protect the district from encroachment on its service. “Service” means “pipes in the ground” from which the district can deliver water within a reasonable time, once requested, as shown by existing lines’ capacity and proximity. Federal protection supersedes developer’s action for detachment under Missouri statutes. The circuit court did not err in denying the developer’s claim for detachment.  
B&G Land Development, LLC vs. Jackson County Public Water Supply District #17 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85866