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Case summaries for Nov. 13 - Nov. 19


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 | Criminal | Employment | Employment Security | Family |
Miscellaneous Actions | Orders of Protection | Real Estate


Prevailing Party May Have Costs Awarded
Statute and rule allow a prevailing party to recover their costs, but the circuit court denied the prevailing party all their costs, so the Court of Appeals reverses and remands to determine an award of costs. Appellant waived improper contacts between respondent and jurors when appellant delayed raising that matter until six days after the jury’s verdict.  
James P. Kahn, Appellant, vs. Triston Blackwell, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108947

Res Judicata Bars Relief from Later Enforcement of Earlier Order
On a motion to dismiss, circuit court must allow plaintiff to file an amended petition when justice requires, which requires that the proposed amended petition must state a claim on which the circuit court can grant relief. To state a claim for an injunction requires allegations that support injunctive relief—no adequate remedy at law from an, at least threatened, irreparable harm—and that harm must constitute some claim on which the law grants relief. “An injunction is a remedy, not a cause of action; thus, an injunction must be based on a recognized and pleaded legal theory.” Res judicata may appear in a motion to dismiss, though it is an affirmative defense, and may require consideration of matters outside the pleadings. In actions under respondeat superior, an earlier judgment for employee bars a later claim against the employer, “and vice versa.” Naming a  different capacity of defendant does not evade the bar. The claims barred include any theory of relief that plaintiff raised, or could have raised, in an earlier action alleging the same events. That includes later events based on earlier events: “the allegations in this case were merely evidentiary details relating to the [defendant]’s enforcement of its decision to restrict [plaintiff] from campus that did not constitute new ultimate facts [, so t]he claims in this case are not new for res judicata purposes.” University of Missouri has sovereign immunity, its counsel is immune to suit by an adverse party, and the legitimate basis for University’s contract actions negated plaintiff’s claims for abuse of process. Plaintiff’s amended petitions did not cure the defects cited in defendant’s motion to dismiss, so circuit court did not abuse its discretion in denying plaintiff’s motion to file that amended petition. United States Constitution’s Seventh Amendment protects the right to a jury trial as it existed when the Bill of Rights became effective, in federal court for claims on which a district court can grant relief, which does not include administrative actions and claims barred by res judicata.
Galen Suppes vs. The Curators of the University of Missouri, et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83509


Life Without Parole Affirmed for 18-Year-Old
The State had the burden of proof, without regard to whether defense disputed murder victim’s identity, and photograph of murder victim and testimony of widow were more probative on that matter than prejudicial to defendant, so circuit court did not err in admitting that evidence. Appellant showed no prejudice from cumulative evidence of appellant’s animus against police, of whom murder victim was a member. A challenge to a statute on constitutional grounds already determined by the Missouri Supreme Court is merely colorable and is not within the Missouri Supreme Court’s exclusive jurisdiction, as is the case with appellant’s arguments, so the Court of Appeals merely applies the Missouri Supreme Court’s holding: life without parole is a constitutional sentence for a person convicted of murder in the first degree when over the age of 18 years.
State of Missouri, Respondent, vs. Trenton Forster, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107837

Amount and Packaging Imply Trafficking
On a charge of attempted trafficking in a controlled substance, evidence that defendant took a substantial step toward delivering of methamphetamine included possessing 856 “hits” “broken down into four separate smaller bags [, which] supports the inference that a controlled substance is packaged for distribution.”
STATE OF MISSOURI, Respondent vs. RODRIGO J. DIAZ, Appellant
Missouri Court of Appeals, Southern District - SD36276


Award of Costs Reversed
Missouri Human Rights Act bars discrimination in employment based on age but, after a reasonable time for discovery, plaintiff could offer only speculation on: disparate treatment based on age, age as a contributing factor to any harassment, any effect on plaintiff’s employment, and whether employer knew that children on plaintiff’s school bus route were harassing plaintiff. Therefore, circuit court did not err in granting the defendant employer’s motion for summary judgment. Under the law then in effect, circuit court could award costs against plaintiff only on a showing that plaintiff’s case was “without foundation.”
Vanessa Ickenroth, Appellant, vs. Parkway School District C-2, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108820

Employment Security

Absenteeism Not Willful
Statutes disqualify a claimant for misconduct connected with work, which includes violations of employer’s absenteeism policy. The employer has the burden of proving that claimant knew of the policy, but that burden does not include showing a willful violation.  “[U]nlike other aspects of the current “misconduct” definition, [the current statute] requires only that the [claimant] have knowledge of the attendance policy [that the claimant] has violated.”
Mary Reliford vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD83154


Neglect Shown
Terminating parental rights requires clear, cogent, and convincing evidence of a statutory ground for termination and a preponderance of evidence that termination is in the children’s best interest. Evidence of neglect included appellant’s inability to provide care on multiple levels, due to ongoing impairment from multiple mental illnesses, “with no reasonable likelihood of reversal [.]” Evidence of the children’s best interest included the absence of an emotional bond to appellant, failure to voluntarily contribute financially, incomplete progress in parenting skills, and prioritizing companionship over care of children.
In the Interest of: J.G.W.
Missouri Court of Appeals, Eastern District - ED108803

Third-Party Custody Reversed
Circuit court has discretion to sanction a party’s discovery violations, but abuses that discretion when the sanction destroys that party’s case without a showing of “contumacious and deliberate disregard for authority of the [circuit] court [,]” especially when “the imposition of a lesser sanction ... would have been fully curative [.]” The Court of Appeals reviews an appeal on the merits, despite appellant’s briefing deficiencies, when a child’s best interest is at issue and the court can understand appellant’s arguments. Reversed and remanded.
E.K.H.-G., Respondent, vs. R.C., III, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108578

Miscellaneous Actions

Time for Replevin of Seized Property Explained
The statute of limitations is an affirmative defense granted on the face of a petition only if the petition “clearly and without exception ... irrefutably establishes the defense.” The statute of limitations on replevin generally is five years, but for an action against law enforcement officers for official acts specifically is three years, so the latter applies. That time starts when the wrongful retention of property is ascertainable, which is upon declaration that the retained property is of no evidentiary value, which the petition did not show. Therefore, the circuit court erred in dismissing plaintiff’s replevin action as untimely. To appear at a hearing on a motion, an incarcerated person may petition for a writ of habeas corpus ad testificandum, which issues on “substantial and irreparable prejudice for failure to attend [,]” meaning “strict proof of the materiality of the testimony and the necessity of the attendance of the inmate as a witness, balanced against the State’s interest in economy, convenience, and security.“
Dennis L. Laramore, Appellant, vs. Zachary Jacobsen, et al, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108855

Orders of Protection

Appellant’s Briefing Deficiencies Require Dismissal
The rules for appeal of a criminal judgment incorporate the rules for appeal of a civil judgment with additional provisions for the legal file. Appellant’s legal file did not conform to those rules. Appellant’s brief violated rules governing  jurisdictional statement, statement of facts and points relied on. Review of the appeal would require guessing at appellant’s arguments, which an appellate court will not do. Dismissed.
St. Louis County, Respondent, vs. Janet Shanklin, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108623

Real Estate

No Claims Stated in Petition on Foreclosure
A claim for unjust enrichment does not require proof of bad conduct, but it is a theory of implied contract, so the existence of a written contract negates that claim. “Every contract contains an implied duty of good faith and fair dealing but there can be no breach when the contract expressly permits the actions being challenged, and the defendant acts under the express terms of the contract.” The petition argued that defendants breached an implied duty of good faith and fair dealing, but did not allege any breach of any contract provision, so it did not state a claim. Petition also argued that defendants committed conspiracy and breach of fiduciary duty. “[T]rustees of a deed of trust owe a fiduciary duty to debtors to ‘exercise sound discretion and to conduct the sale in the manner [, including timing, that] would render the sale most beneficial to the debtor at the best possible price.” But any agreement on such a sale is subject to the Credit Agreement Statute, which eliminates unwritten evidence of any modification to such an agreement, and any discussion regarding the execution of foreclosure provisions. A foreclosure price is not unfair unless it shocks the conscience, which 52% of market value does not. Petition making allegations outside those confines did not state any claim for relief.
Park Ridge Associates, et al., Appellant, vs. U.M.B. Bank, et al., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108740