Case summaries for Nov. 15-21, 2024

Appellate | Business | Civil | Criminal | DWI | Evidence | Family | Juvenile | Post-conviction | Workers' compensation

Appellate 

Order nunc pro tunc was subject to appeal 
Circuit courts had continuing authority over their records and could correct them at any time including after judgment. The circuit court issued an order nunc pro tunc to correct a clerical error in its judgment as to a description of real property. Statute allowed an appeal from special orders after judgment, meaning an order that attacked or aided in the enforcement of the judgment, and that did not alter the merits of timing of an appeal. That described the order nunc pro tunc, so it was subject to appeal, though such an appeal did not reach the merits of the judgment. 
(Overview summary) 
Magellanic Seven, LLC, Respondent, vs. Wentzville Church of God, Appellant. 
Missouri Court of Appeals-Eastern District – ED112660

Referring to the statement of facts not okay 
Rules of appellate briefing protected the neutrality of the appellate courts and failure to comply was grounds for dismissal. Multifarious points relied on preserved nothing for appeal, and points not developed were abandoned. Failure to recite how the appellant preserved a matter for review and set forth the standard for review further weakened the brief. References to the statement of facts were no substitute for references to the record. Altogether, the Missouri Court of Appeals could not review the matters challenged without structuring arguments for the appellants, which would make the Court of Appeals an advocate, which it will not do. The Court of Appeals dismissed the appeal. 
(Overview summary) 
Carolyn Northup, Respondent, vs. Bradley J. Bakula, Personal Representative of the Estate of Byrle Northup, Appellant. 
Missouri Court of Appeals-Eastern District – ED111942

Business

Personal guaranty enforced 
A personal guaranty was a contract, the enforcement of which required proof of all the elements of a contract. The elements of a contract included acceptance of an offer, but the personal guaranty contract documents waived notices including notice of acceptance. The elements of a contract also included consideration, which need not have been a direct benefit to the personal guarantor, and which the personal guaranty contract documents established without rebuttal. The personal guarantor was not party to loan agreements, but the personal guaranty contract documents’ plain language “explicitly and unambiguously” incorporated the loan documents, which included not only a loan agreement but also a contemporaneous irrevocable letter of credit. A material alteration of the loan agreement could have discharged the guarantor, and the parties to the loan agreement extended the payment deadline, but the guaranty agreement contemplated such events so the extension did not alter the guarantor’s obligation. “As such, the repayment extension was not a material alteration of the [loan] Agreement because the additional interest payments at the same rate were authorized by its terms. This, coupled with the continuing guaranty and notice waiver provisions in the Personal Guaranty, shows there was no material alteration of the Personal Guaranty without [personal guarantor]’s consent.” The personal guaranty contract documents also provided liability for attorney fees incurred in enforcement of the loan, including in circuit court and on appeal. The Missouri Court of Appeals remanded the judgment to the circuit court for a determination of attorney fees on appeal. 
(Overview summary) 
Denny Labantschnig, Respondent, vs. Royal Gate, Inc., et al., Appellants. 
Missouri Court of Appeals-Eastern District – ED112169

Civil

No good cause for default shown 
The elements of an action to set aside a default judgment included good cause for defaulting, which could include anything — "inadvertence, incompetence, unskillfulness or failure to take precautions” — up to recklessness. Recklessness characterized the defendant’s inaction because the defendant did not show that being incarcerated prevented him from filing an answer, or any other action until 11 months after the default judgment was issued. The Missouri Court of Appeals affirmed the judgment that denying the motion to set aside the default judgment. 
(Overview summary) 
Sharon Cain and Ronald Cain vs. Timothy S. Ellis 
Missouri Court of Appeals-Western District – WD86884

Interpretation of insurance policy stated a claim 
On a motion to dismiss for failure to state a claim, all inferences favored the plaintiff. The plaintiff alleged all elements of a claim for breach of contract including that: an automobile policies’ coverage specifically included sales tax and other amounts due on the purchase of a replacement vehicle, whether the plaintiff paid them yet or not, and that the defendant insurer had failed to pay those amounts. Those amounts were not covered, the defendant insurer argued, unless the plaintiff paid them; so, the defendant argued, the plaintiff stated no claim. The circuit court granted the defendant’s motion to dismiss, but that ruling was erroneous, because interpretation of the policy was not subject to decision on a motion to dismiss. “Whether [the plaintiff’s] construction is actually correct is a matter for summary judgment, judgment on the pleadings, or trial – when the court decides the merits of adequately pleaded cases.” The Supreme Court of Missouri reversed the judgment of dismissal and remanded the action for further proceedings. 
(Overview summary) 
Yolanda Bell, Appellant, vs. Shelter General Insurance Company, Respondent. 
Supreme Court of Missouri - SC10046

Criminal

Habeas was no shortcut pending appeal 
In an action for declaratory judgment in one circuit court, the petitioner sought a declaration that he was entitled to jail time credit for a period the movant spent in federal confinement. That circuit court entered judgment against the petitioner. That judgment precluded re-litigation of the issues and claims it decided even while the judgment was on appeal. The petitioner sought the same relief on the same facts in another circuit court by petition for a writ habeas corpus. The petition did not challenge the jurisdiction or authority of the circuit court that issued the judgment. Nevertheless, the other circuit court issued its preliminary writ and accompanying orders, which exceeded its authority, so the Missouri Court of Appeals made absolute its writ of prohibition. The Court of Appeals barred the other circuit court from doing anything in the habeas corpus action other than denying the petition, vacating the preliminary writ, and vacating the accompanying orders. 
(Overview summary) 
State of Missouri Ex Rel. Andrew Bailey vs. Hon. Drew F. Davis, Circuit Judge of Dekalb County 
Missouri Court of Appeals-Western District – WD87449

Purpose shown 
Statutes allowed juvenile division to dispose of juvenile on a conclusion that juvenile committed conduct that, if done by an adult, would be a criminal offense. On charges of felony of statutory sodomy in the first degree, the elements included gratification of sexual desire. Whether the state did not attempt to prove certain facts was irrelevant to whether the juvenile division’s findings had support in substantial evidence. Substantial evidence supported the juvenile division’s findings as to the requisite purpose. 
(Overview summary) 
In The Interest of Z.G. vs. Juvenile Officer 
Missouri Court of Appeals-Western District – WD86400

Knowledge of fentanyl shown 
The elements of attempted trafficking of a controlled substance included possession, of which the elements included intent to deliver, which the state could support with evidence of possession. Possession’s elements included control over the contraband, which the state showed with evidence that the defendant’s belongings were near the contraband, and even in the same bag; the defendant admitted buying some of the contraband though denied knowing that it was contraband. The Missouri Court of Appeals affirmed the conviction. 
(Overview summary) 
State of Missouri vs. Samuel Lee Hines 
Missouri Court of Appeals-Western District – WD86284

No plain error in lack of sua sponte intervention 
The defendant failed to show plain error in the absence of circuit court intervention sua sponte in two instances because the defendant did not show any resulting manifest injustice or miscarriage of justice. As to evidence of uncharged offenses, it was a small part of the evidence not emphasized by the state. As to the state’s closing argument, suggesting future danger from the defendant, the reference was isolated and brief. 
(Overview summary) 
State of Missouri vs. Dustin Charles Love 
Missouri Court of Appeals-Western District – WD86282

Reasonable suspicion supported stop 
No plain error occurred when the state offered evidence of contraband in defendant’s possession. Nothing required the circuit court to exclude that evidence sua sponte when it resulted from a traffic stop of the defendant prompted by the defendant’s vehicle, which matched the description of a vehicle used in a nearby offense, according to dispatch and responding officers. Those circumstances constituted reasonable cause for the stop. The offense involved shots into a residence, so the detaining officer had cause to conduct a protective search. 
(Overview summary) 
State of Missouri, Plaintiff/Respondent, vs. Isaiah M. Lane, Defendant/Appellant. 
Missouri Court of Appeals-Eastern District – ED112266

Deliberation shown 
The elements of murder in the first degree included deliberation, which the state showed through evidence that the defendant planned the killing, forcefully stabbed the victim through the breastbone to sever major arteries, concealed the murder weapon, and attempted suicide afterwards. The defendant proffered an instruction on voluntary manslaughter. Voluntary manslaughter’s elements included a sudden passion from adequate cause, meaning that the victim incited the defendant, which did not have support in the defendant’s testimony merely that the defendant and the victim had an altercation. The circuit court did not err in refusing an instruction on voluntary manslaughter. Evidence of the defendant’s knife skills was cumulative and, therefore, its admission harmless. 
(Overview summary) 
State of Missouri, Respondent, v. Michael P. Oshia, Appellant. 
Missouri Court of Appeals-Eastern District – ED112235

Procedure for objection to mistrial discussed 
Double jeopardy generally barred retrial after mistrial without the defendant’s consent, except when manifestly necessary, if the defense has an opportunity to argue an objection outside the hearing of the jury. The circuit court did not abuse its discretion in declaring a mistrial based on a jury deadlocked after five-and-a-half hours of deliberation. In denying a Batson challenge, the circuit court did not err in finding that the state’s support for peremptory strikes were race-neutral. The circuit court did not err in allowing evidence of identification from a photo line-up in which police had to depart slightly from their protocols, in that the officer conducting the identification knew that the suspect was among the photos; and in which the photos were reasonably similar. The circuit court did not err in excluding evidence of a prior act of violence by the defendant’s murder victim because such evidence was “relevant for only a very limited purpose, when the defendant has injected the issue of self-defense[,]” which was not at issue. The Missouri Court of Appeals affirmed the conviction. 
(Overview summary) 
State of Missouri, Respondent, v. Isaiah Gholson, Appellant. 
Missouri Court of Appeals-Eastern District – ED111875

Disclosure of jail time okay 
A venire person stated that the defendant had been in jail, but the venireperson did not mention that the jail time was for some unrelated offense, so no prejudice resulted. And the venire person’s statement did not compel the defendant to testify, to explain his jail time, especially after the circuit court’s colloquy about the rights that the defendant gave up by testifying. The circuit court did not err in denying a mistrial and the Missouri Court of Appeals affirmed the conviction. 
(Overview summary) 
State of Missouri, Respondent, vs. Douglas Berkey, Appellant. 
Missouri Court of Appeals-Eastern District – ED111821

DWI

Arrest did not require physical restraint 
In an action to set aside the director of revenue’s suspension or revocation of a driver’s license, the director of revenue had to show that, on probable cause to believe that the driver had a blood alcohol concentration greater than a certain percentage, the driver was arrested. Arrest meant “actual restraint of the person of the defendant, or by [her] submission to the custody of the officer, under authority of a warrant or otherwise.” Actual restraint of the driver’s person included restraint by physical injury when further restraint by the officer was impractical or unnecessary. The appellant driver was immobilized and lying down in an ambulance after a serious accident when the arresting officer announced the arrest. In holding that no arrest occurred for lack of further restraint, the circuit court misapplied the law. The Missouri Court of Appeals reversed the judgment and entered judgment for the director. 
(Overview summary) 
Amelia Briane Van Vickle vs. Director of Revenue 
Missouri Court of Appeals-Western District – WD87196

Evidence

Invitation and acquiescence waived plain error 
The defendant waived plain error review of evidence that the defendant asked of witness and did not object to. The defendant waived other arguments asserted on appeal but not developed. 
(Overview summary) 
State of Missouri, Respondent vs. Cortez Caves, Appellant. 
Missouri Court of Appeals-Eastern District – ED112204

Family

Joint custody reversed 
In an action for paternity, the statutes favored joint custody, in which the parents confer with one another and make decisions together. When the circuit court found that “To date, neither parent has demonstrated a willingness to communicate with the other parent or to involve the other parent in the child’s life[,]” and found the parents unable “to co-parent without disputes and the complaints from both parents regarding the behavior of the other parent during exchanges and in the child’s presence at doctor appointments[,]” awarding joint custody was an abuse of discretion. Evidence supporting a change to the child’s surname included evidence that the child already had two middle names, so a hyphenated surname would be cumbersome, and the parties’ earlier agreement that the child would bear the father’s surname. Objections to notice of the name change and Form 14 calculations, not made in circuit court, are unavailable on appeal. Evidence that the special-needs child was “well-adjusted and thriving” in the child’s current scholl supported assigning the father’s address to the child over the mother’s, especially when the mother wanted to move to North Carolina. 
(Overview summary) 
Ron Elliott Irving, Individually, and I.D.A.A., Minor Child, by Next Friend, Ron Elliott Irving vs. Jenny Anne Angstrom 
Missouri Court of Appeals-Western District – WD86648

Termination of parental rights affirmed 
Statutes allowed termination of parental rights on facts described by statute and the children’s best interests. The statutory grounds included failure to rectify the conditions that brought the children into circuit court, which the state showed with evidence that the parent had a chemical dependency that she refused to treat, and that disabled the parent from parenting. Facts relevant to the children’s best interest included parent’s irregular visits, spending on chemicals instead of children, failure to follow a plan of correction, children’s distress during visits with the parent, and parent/child role reversal. The Missouri Court of Appeals affirmed the judgment terminating parental rights. 
(Overview summary) 
In the Interest of A.D.G. and B-J.J. 
Missouri Court of Appeals-Eastern District – ED112626

Juvenile

Transfer okay 
Statutes allowed juvenile division, on consideration of non-exhaustive factors, to dismiss a petition and transfer a juvenile for prosecution in circuit court under criminal law. On appeal of such a ruling, the appellant juvenile showed no abuse of discretion in the circuit court’s consideration of the sentence for the offenses charged: armed criminal action and murder in the first degree. 
In the Interest of: A.S., WEBSTER COUNTY JUVENILE OFFICE, Petitioner-Respondent v. A.S., Respondent-Appellant 
Missouri Court of Appeals-Southern District – SD38354

Post-conviction

Affirmative misadvice not refuted 
The elements of a claim for ineffective assistance of counsel included substandard performance and resulting prejudice. Plea counsel need not have advised the movant about parole eligibility, but any advice had to be accurate. The plea hearing did not address parole eligibility, including a colloquy about promises of reduced time, nor did the record otherwise refute those allegations. The Missouri Court of Appeals reversed the judgment denying relief without a hearing and remanded the action to circuit court for an evidentiary hearing. 
(Overview summary) 
Joshua B. Baker, Appellant, vs. State of Missouri, Respondent. 
Missouri Court of Appeals-Eastern District – ED112357

Workers’ compensation

Pleading requirements discussed for application for review 
The Missouri Labor and Industrial Relations Commission made regulations prescribing the content of an application to the commission for review of an administrative law judge’s decision. The filing party had to state specifically how the ALJ decision was “not properly supported[;]” something more than “not supported by competent and substantial evidence[,]” and enough “to notify the commission and opposing parties of the” issues raised. The respondent’s allegations were sufficiently detailed for the appellant to file a responsive pleading, which demonstrated compliance with the regulations, so the commission did not err in denying a motion to dismiss. 
DANIEL EMERSON, Plaintiff-Appellant v. PRESTRESSED CASTING COMPANY, Defendant-Respondent and TREASURER OF MISSOURI, CUSTODIAN OF THE SECOND INJURY FUND, Respondent/Cross-Appellant
Missouri Court of Appeals-Southern District – SD38424, 38434