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Case summaries for Nov. 12 - Nov. 18, 2021


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.

Business | Contract | Family | JuvenilePersonal Injury | Post-Conviction | Real Estate


Franchisor’s Payments to Franchisee Okay
Motor Vehicle Franchise Practices Act requires automobile franchisors to reimburse franchisees for warranty parts fairly. No violation of that provision occurred, the Administrative Hearing Commission concluded, because respondent franchisor’s payment conformed to the Act’s two-factor definition, analyzed in the following order. The first factor is “the prevailing amount charged for similar parts by other same line-make franchisees in the market [,]” for which the record shows no “most frequent or common” amount, so using an average of amounts in evidence was not error. The second factor is the payment minimum possible: “the amount the [franchisee reasonably] charges retail customers for non-warranty parts [,]” and “reasonable” is not simply what the market will bear, but considers what other franchisees choose to charge. Court of Appeals affirms the Commission’s decision.
Ed Napleton St. Louis Imports, Inc., d/b/a Ed Napleton Honda vs. American Honda Motor Co., Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD84360


Outbound Forum Selection Clause Discussed
Non-signatory defendants cannot enforce the contracts’ forum selection clause, so the forum selection clause was not grounds for dismissing the fraudulent inducement claims against the non-signatory defendants. But fraudulent inducement claims against signatories will require construction of the contracts’ terms, which supports dismissal of those claims from circuit court in favor of—and without prejudice to re-filing the claims in—the contractually selected forum, like the contractual claims against signatory defendants. Appellants did not show that the outbound forum selection clause is unfair or unreasonable.
Thieret Family, LLC., et al., Appellants, vs. Delta Plains Services, LLC, and Justin A. Brown, Adam Horton and Mike Still, Defendants/Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109440


Property Only Partly Owned by the Entirety Was Not Marital
Appellant showed no prejudice from any miscalculation of child support. Appellant did not show preservation of error in the award of the tax dependency exemption. Appellant did not show that judgment’s reference to child’s injury caused by appellant, and to appellant’s alcohol problem, showed that the judgment’s restrictions on parenting time were to punish appellant. Appellant’s weight-of-the-evidence did not acknowledge evidence favoring the ruling challenged. Documentation supported the circuit court’s characterization and valuation of farming assets. Appellant did not show use of tax refund spent on court-ordered temporary child support was not marital property subject to distribution. Circuit court did not err when it incorporated the parties’ informal agreement on division of marital property and debt. Evidence of benefit to respondent and absence of property equally valuable supported an order to sell the marital home and farmland. Appellant did not show that appellant’s share of marital property was so inadequate as to require maintenance. Judgment may increase visitation on the occurrence of a future event, if the event is definite, like child’s fifth birthday. Circuit court erred in ordering distribution of proceeds from trailers, in which other persons also owned an ownership interest, between parties only. Circuit court erred in omitting and considering the distribution of credit card debt incurred after separation but before dissolution. Remanded to modify the judgment and re-consider distribution of marital assets and debts accordingly.
Michael James Reichard vs. Kari Leigh Reichard
(Overview Summary)
Missouri Court of Appeals, Western District - WD84256 and WD84273

Adoption Judgment Used Some Custody Standards
When considering the child’s best interests under competing petitions for adoption by former guardians, circuit court sought to maintain children’s relationship with each party, and so made awards of custody. In so doing, circuit court applied the factors for determining the best interest of a child under the adoption statutes, and was not required to use the custody statutes, though it was free to borrow from the latter. Objecting to the omission of one factor did not preserve an objection to using the remaining factors, and appellant must show how they presented their challenge in circuit court, even after a bench trial. An argument that does not develop the point relied on is not readily understandable, and the Court of Appeals cannot review it, because it would require the Court of Appeals to act like appellant’s advocate.
In Re: S.H.P. and A.L.P., A.S., L.M., vs. N.B., C.P.
(Overview Summary)
Missouri Court of Appeals, Western District - WD84181

Service by Publication Sufficient
“Insofar as such a proceeding affects status only, the action [for dissolution of marriage] is in rem or quasi-in-rem and requires only that the res be before the court upon proper notice” to the parties. Notice to a party by publication is sufficient only when that party voluntarily appears, which appellant did by motion to dismiss, which challenges service by publication but not personal jurisdiction. And what appellant really sought was more time to make an appearance.
Susan Ball vs. Robert K. Ball, II
(Overview Summary)
Missouri Court of Appeals, Western District - WD83640


Certification Counsel Ineffective
Juvenile did not show that counsel’s investigation was below standard, or deprived juvenile of a fair hearing, by showing that counsel failed to offer cumulative or immaterial evidence. A hearing to dismiss a petition in the juvenile division and certify a juvenile for a criminal action does not constitute a determination of the merits of the petition, and the statutes relax the law of evidence in a certification action, so objecting to hearsay is meritless. Under either possible standard, juvenile did not show that relief was due because of ineffective counsel. 
IN THE INTEREST OF P.J.T., SCOTT COUNTY JUVENILE OFFICER, Petitioner-Respondent v. P.J.T., Respondent-Appellant
Missouri Court of Appeals, Southern District - SD36997

Personal Injury

Damages Go to Judgment Creditor’s Estate and Attorneys
Law of the case, and compliance with mandate, govern review of circuit court’s judgment after remand with directions. Statutes provided for payment of medical damages, in a lump sum for immediate damages, and periodically for future damages; and, on judgment creditor’s death, to judgment creditor’s estate but limited to the amount of unpaid medical bills. That limitation does not apply to litigation expenses, so contingent attorney fees are due in an amount calculated on the entire award. Circuit court’s judgment after remand complied with Court of Appeals’ mandate.
Carol Lowe, Respondent, vs. Mercy Clinic East Communities, Bryan Menges, D.O., James D. Cassat, M.D., and Mercy Hospitals East Communities, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108826


Allegation on Misadvice Unrefuted
The record of movant’s plea hearing showed that no one told movant how much of his sentence he would have to serve, but was silent on parole eligibility, and so did not refute movant’s allegations of plea counsel’s misadvice on parole eligibility. Reversed for an evidentiary hearing on the motion.
Lawrence M. Phillips, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109546

Time to File Motion Not Shown
Movant must show that the initial motion was timely, which includes proof of when the time for filing started, and no evidence of that time is in the record from the evidentiary hearing. Therefore, the Court of Appeals vacates the judgment and remands for an evidentiary hearing on when the time for filing the initial motion started.
Jerry L. Huskey, Movant/Appellant, vs. State of Missouri, Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109277

Strategy on Witnesses Okay
A determination on direct appeal, that a challenged ruling did not constitute plain error, does not determine whether trial counsel was ineffective for failure to preserve that challenge. Appellant did not show any harm from not seeing a transcript of an interview with police. In the context of voir dire, venire person’s response of “I don’t think so” meant “No.” Appellant showed no prejudice from the answers of a venire person who did not sit on the jury. Stipulating to the complaining witness’s outcry testimony was sound strategy as a source of the complaining witness’s inconsistent statements. Trial counsel was not ineffective for not calling an alibi witness when no alibi was pleaded, and the witnesses’ testimony was cumulative in part, and inconsistent in part. Trial counsel was not ineffective for not calling an expert on allegations of sexual abuse in trial for divorce proceedings for trial in a criminal case. The strategy to cross-examine the State’s witness, rather than object, was reasonable. Appellant did not show that trial counsel’s strategy of impeaching the complaining witness more than trial counsel already thoroughly did, was unreasonable. No review is possible, in circuit court or an appellate court, for an argument that appears only in an amended motion not timely filed. The abandonment exception to the timely filing requirement, as to an amended motion, applies to appointed counsel and not to retained counsel. A theory of ineffective counsel raised for the first time in appellant’s brief, and not addressed in a point relied on, is not preserved.
Derry Beck II vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD84004

Real Estate

Appeal Dismissed for Noncompliance with Briefing Rules
Appellant’s brief departs so far from the rules that the Court of Appeals cannot know whether it even has authority to hear the appeal because “[i]t is unclear, whether [the] case was tried under” provisions that include trial de novo in circuit court. Appellant omitted the transcript and appendix, and appellant’s statement of facts and points relied on do not comply with rules of appellate practice, so the Court of Appeals cannot discern her arguments.
Theresa Marie Barbero, Appellant, vs. Wilhoit Properties, Inc., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109472

Lienholder’s Priority and Interests Explained
In an action with counterclaims for judicial foreclosure and quiet title, judgment was final, but erroneous in failing to address junior lienholder’s interest in surplus. Circuit court based its ruling as to appellant’s lien priority on a statute limiting the life of lien securing a revived judgment to three years, and appellant cites no authority to the contrary, so appellant has abandoned its challenge to the circuit court’s ruling.
DLJ Mortgage Capital, Inc., Respondent, vs. Creative Client Recovery, Inc., et al., Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109090