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Case summaries for Nov. 19 - Nov. 23, 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.

Civil | Construction | Criminal | Employment | Evidence | Family | Local Government | Post-Conviction | Real Estate | Workers' Compensation


Actual Knowledge of Damages Started Time for Filing
Statute of limitations for negligence is five years, starting when a reasonable person could ascertain that damage occurred, which happened no later than when appellant made an insurance claim for the damages. Appellant filed the action in circuit court more than five years after that date, so the filing was too late, and circuit court did not err in dismissing the action for failure to state a claim.
Sharon Watson, as Trustee of the George T. and Mary E. Watson Trust dated November 18, 1997, Appellant, v. Menard, Inc. d/b/a Menards, and City of Richmond Heights, Missouri, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109525


Summary Judgment Affirmed Against Prevailing Wage Action
On a motion for summary judgment, the circuit court determines whether movant has established material facts, and whether a genuine dispute exists, precluding jury trial. Statutes provide that a prevailing wage shall apply to the construction of public works by a public entity or anyone else on a public entity’s behalf. Public funding is not solely determinative while supervision of construction, and ultimate control of the completed construction, by a private entity negate a characterization of the construction as public works.
Alvin Brockington, Individually and On Behalf of All Similarly-Situated vs. New Horizons Enterprises, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD83838


Joinder of Trials for Offenses Against Separate Victims Okay
Offenses charged together are tried together, unless severed for substantial prejudice on defendant’s motion, which appellant did not file. The offenses’ similar character is sufficient to support an exercise of discretion against severance. A challenge to multiple convictions on the evidence of multiple witnesses is multifarious but an appellate court may review such a point anyway. The Missouri Supreme Court abolished the Corroboration Rule and the Destructive Contradictions Doctrine; no appellate court will otherwise re-weigh the evidence at trial, and inconsistencies in the State’s evidence are for the jury to assess.  
State of Missouri vs. James Patrick Dodd, Jr.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83687

Custodial and Non-Custodial Portions of Investigation Distinguished
“Under the Fourth Amendment, a police officer who lacks probable cause but whose observations lead the officer reasonably to suspect a particular person [criminal activity], may detain the person briefly to investigate the circumstances that provoke suspicion.” That investigation may prolong an otherwise routine traffic stop without constituting a custodial interrogation necessitating Miranda warnings. Circuit court erred in suppressing statements made during that investigation. Those statements supported a further search for contraband, which was therefore also not subject to suppression. But after the conclusion of the traffic stop, and release of defendant, the circumstances of the resumed interrogation were custodial, so Miranda warnings were necessary for further questioning.
State of Missouri, Appellant, vs. Caden N. Ybarra, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109736


Disability Benefits Calculated
Rule requires that a motion for summary judgment shall include a statement of uncontroverted material facts, and that the record on summary judgment alone determines the motion, so matters not raised in the motion are not tried by consent. Statutes creating pension system for police officers include a benefit for job-related disability, with a set-off for any workers’ compensation award, but not less than a minimum award. The offset does not include attorney fees for the workers’ compensation action. Awarding the minimum was not error. Claimant did not show that life expectancies were arbitrary and capricious. Claimant did not show that interest applied to the award.
Heather M. Bass vs. Police Retirement System of Kansas City, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82700 and WD82704


Foundation for Expert Testimony Satisfied for Each Alternative Explanation
“The rules of evidence are applicable to all parties in a civil action regardless of the parties' burden of proof on a given issue.” Statute setting forth the foundation for expert testimony includes a reliable application of expertise to facts, which means a reasonable degree of medical certainty in medical malpractice cases, and that standard is an element of any party’s proffer of expert evidence. Defendant’s expert met that standard for each alternative explanation for the source of plaintiff’s injury and, since defendant did not have a burden of proof, defendant’s expert did not have to pick one alternative explanation over the others. And the challenged ruling entered only cumulative evidence into the record, so no prejudice resulted, even if the ruling was erroneous. Defendant’s verdict affirmed.
Nicholas Linton, by and through his mother and next friend, Arica Linton, Appellant, vs. Amy S. Carter, D.O., and Ferns, Matile, Perryman & Moore, et al., Respondents.
(Overview Summary)
Supreme Court of Missouri - SC98888


No Error in Adjustment to Custody for Relocation
The statutes’ standard for a parent’s relocation includes good faith, and the child’s best interests, but does not require findings of fact on the child’s best interest. Circuit court’s adjustment to child’s residential designation for educational and mailing purposes, and to the parenting time schedule, is not a modification to custody because the parties still have joint legal and physical custody. Those adjustments stood on the evidence and arguments of the parties and did not constitute error.
MCKENZIE R. ALLEN, Petitioner/Respondent vs. BAILEY L. SEELY, Respondent/Appellant
Missouri Court of Appeals, Southern District - SD36891

Modification of Foreign Judgment Discussed
Any civil matter is subject to circuit court jurisdiction, and any elements of any claim is a matter of circuit court authority to order relief, the absence of which a defense subject to waiver. That includes certification of another State’s judgment in an action to modify custody. When appellant does not reference the record showing the preservation in circuit court of an issue challenged in an appellate court, the appellate court dismisses that challenge. Circuit court may award final decision making to one parent when parents disagree about a legal issue. Appellate courts have warned circuit courts against the rubber-stamping of proposed orders, but circuit court’s partial adoption of respondent’s language did not transgress against that directive. Speculation about tax consequences does not support reversal. Appellant did not show that the timing of respondent’s motion for new trial affected appellant’s untimely motion for new trial.
Kimberly L. Ball, Appellant, vs. Michael R. Ball, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109532

Local Government

County Clerk May Do Tax Bills for City But Doesn’t Have To
Statute requiring county clerk to bill taxes for political subdivisions that must certify their tax rates to the county clerk, but cities must only notify the county clerk of their tax rate ceiling and proposed rates, so city had no right to county clerk’s tax billing services. Those services may be the subject of a contract between the county clerk and the city, but such a contract had expired, and the current contract did not include the county clerk as a party.
Cooper County Clerk Sarah Herman, et al. vs. Cooper County Commission, et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD84351

Fire District’s Authority Unconstitutional
Constitution grants to a home rule charter city all power that the General Assembly could give to a home rule charter city, which includes fire protection in fire district territory annexed into the city, as a city ordinance provided. Therefore, a statute giving that authority to the fire district was unconstitutional, as was the fire district ordinance passed under the statute. Declaratory judgment on fire district’s petition reversed and remanded for dismissal.
Boone County Fire Protection District vs. City of Columbia, Missouri and County of Boone, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD84228


No Reason for Investigation Shown
Motion charged that plea counsel was ineffective for failure to investigate movant’s mental condition, but circuit court found that plea counsel had no reason to investigate movant’s mental condition, and Court of Appeals defers to those findings of fact.
CORY D. JONES, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36913

Extension Granted Too Late
The due date for filing the amended motion was subject to an earlier rule and a later rule, depending on sentencing date, not the date when movant filed the initial motion. The time for filing an amended motion had already expired when circuit court granted an extension of time to file, so the extension was unauthorized, and the amended motion was late. Whether that late filing resulted from abandonment must be the subject of an independent circuit court inquiry, for which the Court of Appeals remands the motion, and the circuit court must make findings of fact and conclusions of law on the inquiry and the merits.  
Cedric Dewayne Mack vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD84140

Appellant’s Briefing Errors Require Dismissal
Appellant’s point relied on, about the requirement of an evidentiary hearing, does not find development in appellant’s argument. Post-conviction relief cannot address matters for direct appeal, like the standard required at a hearing to determine competency for trial. The vagueness of the appeal requires dismissal.
Darrell I. Bolden, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109552

Real Estate

No Fraud or MMPA Violations Shown in Special Assessments
When challenging a ruling, appellant must identify the ruling and include all parts of the record relevant to that ruling, but appellant failed to identify the challenged ruling, and such parts of the record on file contradict appellant’s arguments. Appellants did not show that the Missouri Merchandising Practices Act had any application to the special assessments issued by their homeowners’ association. Appellants did not show that homeowners association’s reading of its bylaws constituted fraud.  
Missouri Court of Appeals, Southern District - SD36800

Genuine Dispute Remains as to Disclosure
Plaintiff alleged non-disclosure in a sale of real estate, on which plaintiff offered multiple theories with differing elements, only some of which defendants addressed in their motion for summary judgment. Evidence of redirected water flow negated neither the falsity of defendants’ disclosure, denying drainage problems, nor sellers’ knowledge of that false disclosure. Those facts were material to buyers’ claims of negligent misrepresentation, and Missouri Merchandising Practices Act violations, and those remaining genuine disputes required denial of sellers’ summary judgment motion.  
Thomas Duncan and Lisa Duncan, Appellants, v. Savannah, LLC d/b/a Berkshire Hathaway Home Services, et. al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109582

Workers’ Compensation

Burden of Proof for Second Injury Fund Explained
On a claim to the Second Injury Fund, claimant has the burden of proving that claimant cannot return to any employment at all, and the Fund has no burden of proof, so denial of a claim is not subject to challenge for lack of substantial and competent evidence. Evidence that would support granting the claim is irrelevant because the Court of Appeals defers to factual finding of the Labor and Industrial Commission. Carrying the burden of production does not mean carrying the burden of persuasion.   
Missouri Court of Appeals, Southern District - SD37036