Case summaries for Nov. 18 - Nov. 22, 2022

Appellate | Attorneys | Civil | Construction | Criminal | Employment | Evidence | Family | Juvenile | Personal Injury | Post-Conviction | Probate | Workers' Compensation

Appellate

No Appeal from Partial Summary Judgment 
Defendant’s motion for, and circuit court’s grant of, summary judgment addressed only one of two claims and parties. Such a ruling is not a final judgment, is not subject to appeal, and the order carried no certification for appeal. Dismissed. 
Audrey Baker vs. Curators of the University of Missouri, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85406 

Deficient Briefing Requires Dismissal 
A point relied on must identify the ruling challenged and a theory to support the challenge; challenging the tribunal’s conceptual perspective is no substitute, and multiple theories make a multifarious point. Appellant must also describe how appellant preserved the point before the tribunal. On appeal from the Labor and Industrial Relations Commission, an appellate court may examine evidence contrary to the Commission’s ruling, but appellant’s argument must address the evidence supporting the challenged ruling, too. Argument must give notice of appellant’s claim and refer to the record. Failure to show error in denial of temporary total disability benefits bars reversal for failure to award additional temporary total disability benefits. 
Kathryn Crowley vs. Clarcor/General Electric and Treasurer of the State of Missouri, Custodian of the Second Injury Fund 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD85177

Attorneys

Lawyer Disbarred 
Respondent misrepresented fees, advanced money to clients, mismanaged a client trust account, and commingled funds. Respondent misappropriated funds by paying off clients’ liens, but at a reduced amount undisclosed to clients, and keeping the difference. When a lawyer harms client for the lawyer’s benefit, disbarment is the presumed remedy. Mitigating factors proffered are unrelated to the offenses and corrective actions are too little and too late. Aggravating factors include previous discipline, obstructions and deceptions during the disciplinary process, and probably irremediable misappropriations. Supreme Court disbars respondent. 
In re: Lorenzo Antoine Hester, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99550 

Civil

Opposition to Summary Judgment Ineffective 
Appellant paid earnest money toward purchase of respondent’s property, and did not pay the balance as required, but filed a finance statement to encumber the property. In an action to quiet title, respondent filed a motion for summary judgment. Rule on summary judgment governs the establishment of facts and the raising of a genuine dispute of facts. Respondent filed a motion for summary judgment in accordance with that rule, appellant did not, and circuit court ruled in respondent’s favor. Ruling on motion for summary judgment and denominated as an “order” was subject to appeal because it disposed of all issues as to all parties. Neither at trial, nor on appeal, did appellant challenge the circuit court’s application of law to the facts that respondent established beyond genuine dispute. Therefore, the Court of Appeals affirms the judgment. 
Kathryn J. McKay vs. Gary Michael Peloza 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84794            

Construction

Judgment Not Final 
One project resulted in multiple claims among multiple parties: general contractor sued property owner LLC, architect, lender, and others; property owner sued general contractor; and subcontractors and other persons intervened or were subject to motions for joinder. Judgment resolved property owner’s claims against general contractor and the circuit court certified the judgment for appeal. Rule allows certification of a judgment resolving less than all claims as to all parties only if the judgment “(a) disposes of all claims by or against at least one party, or (b) it disposes of one or more claims that are sufficiently distinct from the claims that remain pending in the circuit court.” Pending claims entangled with the judgment, including property owner claims against the general contractor, take the judgment out of that description. Dismissed. 
Complete Construction, LLC vs. Frog Eyes, LLC, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84051

Criminal

Wax Is Not Marijuana 
Defendant’s description of the contents of defendant’s automobile, and laboratory analysis, supported a finding that the substance was THC. The chain of custody supported entering the THC into evidence. The State charged defendant under the statute outlawing “possession of any controlled substance ... or any synthetic cannabinoid” with an exception for thirty-five grams or less of marijuana. That exception did not apply to defendant because defendant possessed THC in wax form, not marijuana. The statutes treat those substances differently because they are different. Weight is not an element of THC possession. Whether the THC came from industrial hemp was not part of the State’s burden of pleading or proof.  
State of Missouri vs. Cole G. Fox 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84800

Employment

Summary Judgment Against Prevailing Wage Action Reversed 
Statutes provide that a prevailing wage is due anyone working “by or on behalf of any public body engaged in the construction” of public works or anyone else. On a motion for summary judgment, the record includes evidence that the plaintiff worked on a publicly funded project for public improvement, at least partly directed by a public entity. That evidence and reasonable inferences favor the non-movant plaintiff worker, precluding summary judgment for the movant, though not requiring judgment for defendant employer. Summary judgment for employer reversed and remanded for further proceedings.   
Alvin Brockington, Individually and On Behalf of All Similarly-Situated, Appellant, vs. New Horizons Enterprises, LLC, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99512  

Evidence

No Issue Preserved 
A motion in limine, even if granted, is insufficient to preserve an objection to evidence. The objection must be specific so “lack of foundation” is not, alone, a sufficient objection. Defendant must raise any constitutional objection at the first opportunity, but did not raise any Fourth Amendment issue in circuit court, and does not seek plain error review. Affirmed. 
Kyle G. Petersen, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99522

Family

Guardians ad Litem Have Different Duties 
In any judicial proceeding involving an abused or neglected child, statute requires the appointment of a guardian ad litem for any parent adjudicated incompetent. Appellant did not protest the appointment of appellant’s guardian ad litem and thus waived review of that appointment. Appellant’s guardian ad litem in the juvenile action did not replace appellant’s guardian ad litem from a probate action because the latter had no authority in the juvenile action. Appellant announced no theory under which an appellate court can review the circuit court’s order directing participation in services against federal statutes addressing the rights of disabled persons. 
In the Interest of: S.M.W., Juvenile Officer, vs. S.E.W. 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD85122

Juvenile

Timing of Disposition Order’s Finality Transferred 
Juvenile statutes provide that circuit court may issue a dispositional order that requires the payment restitution while deferring the amount of restitution for later determination after a hearing. The dispositional order of restitution and the order setting the amount due are each final and subject to appeal. Juvenile appealed his liability for disposition, from which his notice of appeal was late. Transferred.   
In the Interest of: P.D.E. vs. Juvenile Officer 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84899

Personal Injury

No Official Immunity Without Discretion 
In an action for wrongful death, plaintiff alleged that defendant State worker failed to report that child was exposed to controlled substances, resulting in child’s death. Defendant pleaded official immunity, which applies to discretionary acts in the line of duty. But defendant had “a departmentally mandated duty” under State policy to make the report on a specified form by a specified time. Therefore, defendant did not show that official immunity applied, and the circuit court erred in dismissing the action on that basis. The circuit court also erred in dismissing the action for lack of causation because the motion to dismiss did not plead that basis.  
CHRISTINA FORESTER, Appellant vs. CHRYSTAL MAY, Respondent  
Missouri Court of Appeals, Southern District - SD37325

Post-Conviction

Deadline for Amended Motion Never Started 
Movant filed an initial motion that appeared untimely, but late filing may be excused, and the facts constituting an excuse may appear for the first time in an amended motion. An amended motion, or a statement in lieu, is due within a time that starts with the appearance of counsel and the filing of a transcript. Neither occurred so the time never started to run. Circuit court’s dismissal of the motion for inaction was therefore error. 
Jason L. Eckes vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD85215

Probate

No Error Shown on Rescission of Deed 
In an action to rescind a deed for lack of capacity, respondent had to show clear and convincing evidence that the grantor lacked mental capacity to recognize “the nature of the transaction, the extent of [grantor’s] property and the ability to recognize the objects of [grantor’s] bounty.” Relevant evidence includes “the grantor’s condition before and after the execution.” Appellant’s point relied on challenged the finding of incapacity as against the weight of the evidence, which requires appellant to address the evidence supporting that finding, but appellant’s argument charges that no substantial evidence supported the judgment. Argument that does not follow the point relied on preserves nothing for review. Ex gratia, the record supports the challenged finding, which is not against the weight of the evidence.    
DARRELL WAYNE TURNER, Plaintiff-Respondent vs. LINDA JEAN JORDAN, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD37432

No-Contest Provision Applied 
Multiple instruments conveyed multiple interests in property to multiple parties, who sought direction in circuit court, as to the parties’ rights and duties. A party’s request for accounting did not violate a no-contest provision, but that request required a determination of that party’s status as a beneficiary first, so both the request and the ruling were premature. Two parties’ requests for a special fiduciary violated a trust’s no-contest provision, because neither alleged any bad faith, yet both sought to replace a sole trustee who was only trying to clarify the operations of the multiple instruments. 
In the Estate of: Marshall O. Buder, Sr., Deceased. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110349 

Workers’ Compensation

Election of Remedies Requires Reimbursement 
Workers’ compensation statutes substitute the Second Injury Fund for the uninsured employer. An uninsured employer is subject to an injured employee’s claim in circuit court, or under workers’ compensation, but not both. Both may proceed simultaneously but the first remedy elected bars any other remedy. Under workers’ compensation, a temporary and partial benefit award is not final, and so did not constitute an election of remedy. The election of remedies occurred when employee received payment under the final settlement, in employee’s circuit court action, to which claimant’s uninsured employer was a defendant. Employee later received partial payment on the temporary and partial award, so the Court of Appeals orders employee to reimburse the Fund, curing the “double redress.”   
Billy Hood, Appellant, vs. Michael Menech, Vandalia Area Historical Society and Missouri State Treasurer as Custodian of the Second Injury Fund, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110331 

Statutory Employee Has No Remedy Against Co-Worker 
In plaintiff’s action for damages against defendant corporation and defendant owner of corporation, alleging injuries caused by defendant owner, defendants filed a motion for summary judgment. That motion established that defendants contracted with plaintiff’s employer for work on defendant’s grounds, during which plaintiff sustained injuries. Those facts are insufficient to show that, as a matter of law, defendant corporation was the statutory employer of plaintiff, because they do not show that such work was regular, and defendants would otherwise hire employees for it. Having failed to show legal entitlement to statutory employer status, and the consequential exclusive remedy in workers’ compensation, defendants also failed to establish co-worker immunity for owner. Status as an employee, or owner, of corporation does not protect owner from his own liability for negligence. 
Donald Brooks vs. William J. Laurie and Crown Center Farms, Inc. 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD85031

Accident and Injury Distinguished 
On administrative review from the decision of an administrative law judge, the application for review determines the issues for the Labor and Industrial Relations Commission’s review. On judicial review of the Commission’s decision, a point relied on determines the rulings challenged. An argument not raised in those filings is not preserved for review. Statutes distinguish workplace injuries from accident from workplace injuries from occupational disease. Only the latter is subject to a statutory “last exposure rule.” But, because challenging a ruling on an accident does not preserve error on an occupational disease, it does not preserve error on the last exposure rule. The record does not show reversible error on whether an accident was the primary cause of appellant’s disability. Claimant is free to select claimant’s own medical care over employer’s choice, but employer need not pay for it, and the Commission did not err in ruling accordingly. 
ANIL MUELLER, Claimant-Appellant vs. PEOPLEASE CORPORATION, Employer-Respondent 
Missouri Court of Appeals, Southern District - SD37397