Case summaries for Nov. 11 - Nov. 17, 2022

Administrative | Criminal |  Family | Insurance | Personal Injury | Post-Conviction

Administrative

Sunshine Law Violations Net Attorney Fee Award of $200k+ 
Statutes, allowing an award of “all costs and reasonable attorney fees” for knowing violations of open records laws, include amounts required to pursue such an award. A reasonable amount does not depend on how many counts a plaintiff wins, because all work may relate to all counts. The rules of professional conduct provide guidance in determining a reasonable amount and the circuit court’s award did not constitute an abuse of discretion. “[T]he core facts and legal theories of [plaintiff]’s claims were intertwined and this finding by the [circuit] court does not ‘shock [our] sense of justice,’ especially in light of the trial court’s consideration of the ‘character of services rendered in duration, zeal, and ability and the value of them according to custom, place, and circumstance.” The Court of Appeals modifies the circuit court’s judgment to restrict liability to the entity that knowingly committed the violations. 
Integra Healthcare, Inc., d/b/a Integrity Home Care, et al. vs. Missouri State Board of Mediation, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84919       

Criminal

Probation Revocation Was Timely 
Movant for post-conviction relief challenged circuit court’s authority to revoke probation. Circuit court’s authority to revoke probation ends when probationary term ends, and probationer can shorten that term with earned compliance credits, but also the circuit court can extend its authority to revoke probation for a reasonable time to resolve pending matters. Circuit court does so by making, within the probationary term, “some affirmative manifestation of an intent to conduct a revocation hearing” and “every reasonable effort … to notify the probationer and to conduct the hearing [.]” Affirmative manifestations of intent include orders suspending probation and issuing capias warrants, and the State’s filings of a violation report or motion to revoke were unnecessary to perfect the circuit court’s affirmative manifestations of intent, so the timing of those filings was irrelevant. Service of warrant constitutes a reasonable effort at notice. Circuit court resolved the matters by revoking probation within a reasonable time considering absconder, incarcerations, and continuances. Circuit court did not err in denying post-conviction relief. 
LAMAR JOHNSON, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD37417         

Family

Attorney Fees Authorized but Denied in Grandparent Visitation 
The more specific statute on attorney fee awards in grandparent visitation applies over the more general statute. The applicable statute gives the circuit court discretion to award attorney fees to the prevailing party and expressly considers the parties’ ability to pay. That factor and others supports the circuit court’s denial of attorney fees and shows no abuse of discretion. 
C.T., Respondent, v. J.L.L., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110039   

Too Late to Vacate Decision 
In an action to suspend a driver’s license for failure to pay child support, specific statutes apply, in lieu of statutes to determine an arrearage and authorize collection. The latter inapplicable statutes provide for vacatur, but the former applicable statutes do not, the only remedy for an order of suspension being judicial review. Nevertheless, the Family Support Division relied on the inapplicable statutes to vacate a decision issued 11 months before, which decision had favored the appellant. Appellant filed a petition for judicial review of the vacatur, but the circuit court dismissed that petition. That dismissal, though styled without prejudice, was final and subject to appeal because no re-filing could cure the grounds for dismissal. The circuit court’s dismissal was error, because the statutes provide that appellant had no time limit to challenge a void decision, which described the order of vacatur. Remanded for circuit court to deny the motion to dismiss the petition for judicial review and hold the Family Support Division’s order of vacatur void ab initio. 
Charles S. Covert, Appellant, vs. Director, Missouri Department of Social Services, Family Support Division, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109952  

Insurance

UIM and UM Same in Policy, Not in Statute 
Because driver’s automobile policy unambiguously reduced liability coverage for household member passenger, below passenger’s loss, driver was an underinsured motorist. An underinsured motorist was, under driver’s automobile policy, a type of uninsured driver. All uninsured driver coverages must stack on any given loss notwithstanding any policy’s provisions. Therefore, notwithstanding driver’s policy’s provisions, passenger sought stacking of driver’s underinsured coverage like uninsured coverage. But uninsured coverage stacking is required by Missouri courts, notwithstanding policy provisions, only because carrying uninsured motorist coverage is required by Missouri statute. Statutes did not require driver to carry underinsured motorist coverage, so courts will not require stacking of underinsured motorist coverage, when policy provides otherwise. 
Betty Mendelson, Appellant, vs. Lisa McLaughlin as the Personal Representative of the Estate of Paul Mendelson, Defendant, and Bankers Standard Insurance Company, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED110315 

Underinsured Coverage Limited to Gap Coverage 
After a third party rear-ended driver, driver’s passenger collected on the third party’s automobile policy, and sought to collect on driver’s underinsured automobile coverage. The coverage for an underinsured automobile was limited to any gap between the third party’s coverage and the driver’s policy’s limit. The driver’s policy limit was the same amount that the third party’s coverage already paid, so the driver’s underinsured automobile coverage did not apply. Provisions in the declarations page did not govern, and so did not create an ambiguity, nor did the provisions on limitations of liability. “The policy could hardly have been clearer that it provided no coverage in circumstances like [passenger]’s.” Statutes require that any underinsured automobile coverage provide a described amount but do not require that all automobile policies pay underinsured automobile coverage. 
Glenda Kirkendoll vs. Auto-Owners Insurance Company 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD85388 

Personal Injury

Comparative Fault and Damages Cap Applied 
At a supervised visit to the Children’s Division, plaintiff sat in a rocking chair that collapsed, injuring plaintiff. Statute sets forth the conditions on which the State has waived sovereign immunity from an action for damages based on a dangerous condition of property. Those conditions include proof that the property “without intervention by third parties, posed a physical threat to plaintiff.” Plaintiff satisfied that condition by showing that the rocking chair was demonstrably defective weeks before the injury. Evidence supported a finding that the Division’s disposal of the rocking chair constituted spoliation of evidence and the accompanying adverse inference. An objection raised in a motions in limine and a post-trial motion does not preserve the objection, when not raised at trial, and an objection not raised at trial is not subject to plain error review. In calculating damages, circuit court correctly reduced plaintiff’s damages by plaintiff’s comparative fault, and then reduced that amount by the statutory cap on the State’s liability per person per event. “[W]hen a jury finds a plaintiff contributed to [plaintiff’s] damages, the [circuit] court should compute the plaintiff's recovery by reducing the plaintiff's damage award in the proportion of the plaintiff's share of negligence. If that amount is still greater than the allowable recovery in [the governing statute], as it was here, the plaintiff's recovery must be further reduced to comply with that statute.” 
KENNETH D. GILMORE, Respondent v. MISSOURI DEPARTMENT OF SOCIAL SERVICES, CHILDREN'S DIVISION, Appellant 
Missouri Court of Appeals, Southern District – SD37344                                           

Post-Conviction

Appellate Counsel’s Strategy Was Sound 
In the determination of whether a strategic decision was sound, hindsight is not relevant. The record refuted movant’s allegations of failure to investigate a witness, and that witness would have had credibility problems, so trial counsel’s decision not to call that witness showed neither sub-standard performance nor prejudice. Appellate counsel’s decision not to raise an argument on appeal for the first time does not show ineffective assistance. Even if the argument were preserved, the record did not support it, and appellate counsel’s testimony showed a strategic decision soundly made. 
Dashuan M. Wooten, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110150                   

Escape Rule Applied 
The escape rule supports dismissal of a claim for relief on facts arising before a claimant absconds from justice. Movant pleaded guilty but failed to appear for sentencing and remained at large for three years, then claimed post-conviction relief based on ineffective assistance of plea counsel. The circuit court denied relief on the motion, movant appealed, and the Court of Appeals dismisses under the escape rule. 
Michael Lamar Robinson, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110094

Relief Already Granted 
Rule cited in the motion provides relief that includes correcting a judgment, which circuit court did under another rule, while denying other relief without making any findings and conclusions. Without findings and conclusions, movant cannot show error on appeal. An appeal based on the absence of findings and conclusions is unpreserved because it did not appear in a motion to amend the judgment. 
JAMAAL J. WALLS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD37227 and SD37228