Case summaries for Nov. 17 - Nov. 23, 2023

ADR | Civil | Criminal | Evidence | Family | Juvenile | Personal Injury | Post-Conviction | Workers' Compensation

ADR

No compelling arbitration after non-compliance with arbitrator’s rules  
Appellant defendant filed a motion to compel arbitration in circuit court. Appellant had the burden of proof on that motion, the circuit court was free to disbelieve appellant’s evidence, and respondent plaintiffs had no burden. The circuit court issued a ruling that denied appellant’s motion to compel arbitration. That ruling included no written findings of fact, so the circuit court is presumed to have made credibility determinations and found facts that are consistent with its ruling. Those determinations and findings receive deference on appeal, and an appellate court must affirm the ruling on any reasonable theory supported by the pleadings and proof. The pleadings and proof include a decision by the parties’ chosen arbitrator. The decision declined arbitration with appellants and all respondents, and released their disputes to circuit court, for appellant’s failure to comply with the arbitrator’s rules. That decision supports the circuit court’s ruling. No challenge to the arbitrator’s decision, or to the circuit court’s reliance on that decision, is preserved for appellate review. But, even if such challenges were preserved, they are unsupported by the record. And if the incomplete record showed what appellant alleges, the circuit court was free to disbelieve appellant’s evidence. The Court of Appeals does not “review contested factual issues on a record devoid of transcripts and other documentation to support [appellant]’s assertions.” Denial of appellant’s motion to compel arbitration affirmed.  
Jamie Brizendine, et al., Respondents, vs. TitleMax of Missouri, Inc., Appellant. - (Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110633

Mary Birmingham, et al., Respondents, vs. TitleMax of Missouri, Inc., Appellant. - (Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110632

Kimberly Abram, et al., Respondents, vs. TitleMax of Missouri, Inc., Appellant. - (Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110631

Jeanette Beckermann, et al., Respondents, vs. TitleMax of Missouri, Inc., Appellant. - (Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110630

Cortney Anderson, et al., Respondents, vs. TitleMax of Missouri, Inc., Appellant. - (Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110629

Marketha Baker, et al., Respondents, vs. TitleMax of Missouri, Inc., Appellant. - (Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110628

Judith Brown, et al., Respondents, vs. TitleMax of Missouri, Inc., Appellant. - (Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110627

Kiaela Bracy, et al., Respondents, vs. TitleMax of Missouri, Inc., Appellant. - (Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110626

Cynthia Arteaga, et al., Respondents, vs. TitleMax of Missouri, Inc., Appellant. - (Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110625

Dea Bollin, et al., Respondents, vs. TitleMax of Missouri, Inc., Appellant.- (Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110624

Civil

Summary judgment record restricts summary judgment  
Buyer bought a motor vehicle from seller and used the vehicle in buyer’s business. Seller filed an action against buyer on several theories for providing only a salvage title to the vehicle without disclosing the vehicle’s history. Circuit court granted seller’s motion for summary judgment. Summary judgment can only stand on the evidence in the summary judgment record, which must include any document cited as support in the statement of undisputed facts, response, or reply. The seller’s reply on buyer’s claim of fraud cited evidence outside the summary judgment record to negate the element of misrepresentation as to the vehicle’s collision history. Without that extra-record evidence, a genuine dispute of fact remained as to buyer’s knowledge of the vehicle’s collision history. Statutes impose on seller a warranty of good title, meaning a title free from lien or challenge, which was the salvage title, so the circuit court did not err in entering summary judgment for the seller on buyer’s claim for breach of warranty of title. Executing the assignment of title and using the vehicle as intended negated buyer’s claim for breach of contract.    
Top Priority Transit, LLC, Appellant, vs. Cape Auto Pool, Inc., Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111307

Criminal

Stolen property’s value shown  
Defendant’s possession of stolen property without explanation, or with an explanation that a fact‑finder rejects, supports an inference that the defendant stole the property. The presence of other persons when authorities arrested defendant does not bar defendant’s conviction. A finding of fact on stolen property’s value required no more support than the owner’s testimony as to replacement value.   
State of Missouri vs. Matthew Ryan Rouner  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85397

Faretta hearing okay  
A violation of the right to counsel is always subject to review at least for plain error, Missouri courts presume against the waiver of counsel, and the State has the burden of proving that a waiver occurred knowingly, voluntarily, intelligently, and according to statute. The statute requires no written waiver when defendant has stand-by counsel. The circuit court conducted a thorough and penetrating Faretta inquiry necessary to determine the ultimate fairness of the procedure notwithstanding defendant’s “hodgepodge of conspiratorial rhetoric and obfuscating gibberish” responses. No plain error occurred. Defendant also failed to show that any plain error occurred in the failure to issue subpoenas not shown ever to have been requested.   
STATE OF MISSOURI, Respondent v. MARCUS L. LAVENDER, Appellant  
Missouri Court of Appeals, Southern District - SD37200

No multiple acts issue  
Regardless of whether defendant preserved his claim of error, an appellate court can address the merits when the claim fails. The right to a unanimous verdict is under threat when the State charges defendant with multiple distinguishable acts in a single count. When the acts are multiple but not distinguishable, merely the same course of conduct repeated over time, no such danger exists. Testimony on one such incident does not distinguish that incident. Clerical errors in the judgment require remand for correction nunc pro tunc.   
State of Missouri, Respondent, v. Joshua P. Hankins, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111096

Evidence

Prior bad acts evidence okay  
Business records of 13 prior instances of the same sexual misconduct by defendant were admissible for showing defendant’s intent to affront victim or cause emotional distress or alarm. The evidence was logically relevant, so its prejudice did not outweigh its probative value, and the State did not unduly emphasize that evidence.   
State of Missouri, Respondent, vs. Latori Greer, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111273

Family

No visitation for grandmother  
Statute allows circuit court to grant custody or visitation of a child to a third party who is not a parent, but only under specified conditions, beginning with a presumption against the third party. Third party petitioner grandmother can rebut that presumption by showing that third party custody or visitation is in the child’s best interest, but only after showing that either: “(1) ‘each parent is unfit, unsuitable, or unable to be a custodian,’ or (2) ‘the welfare of the child requires [third party custody or visitation].’” The latter theory was the basis of third party petitioner grandmother’s petition, to which parents filed no answer. The failure to file an answer can constitute a judicial admission, but only if an opposing party seeks enforcement of the duty to file an answer, which grandmother did not do. Grandmother obtained an interlocutory order of default against mother, but not against father, and so waived all consequences of father’s failure to file an answer. No evidence showed that the child’s welfare required grandmother’s custody or visitation. The judgment included no findings of fact, which raises a presumption that the circuit court found the facts in accordance with its conclusions of law, but the conclusions of law addressed only the child’s best interest and did not address the child’s welfare. Therefore, grandmother did not rebut the presumption against her, and the Court of Appeals reverses the judgment.     
Elaine Payne vs. Lindsey R. Nilsson and Joshua D. Platz  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD86003

Extraordinary expenses explained  
Statute allows modification of custody on evidence of a substantial change in circumstances and the child’s best interest, and those two factors are not interchangeable, so authority on one does not support an argument as to the other. Statute requires a parenting plan and child support order to provide for both ordinary and extraordinary expenses of child rearing, which must not be redundant, and must have support in the record. The statute specifically mentions private school and related expenses but the record had no evidence showing any need for a private school or the costs of a motor vehicle, so the Court of Appeals reverses those awards. On a motion for contempt based on respondent’s failure to pay orthodontic expenses of respondent’s child, evidence that such conduct was contumacious and willful included the circuit court’s order, notice of those expenses, and paying for the orthodontic expenses of a step-child; so the order of contempt is affirmed.   
Kristy Rhea Woolery vs. Harry Dean Woolery  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85896

Contempt and commitment affirmed  
Of appellant’s four points relied on, three are not the subject of any notice of appeal, as shown by appellant’s eventual clarifications of vague notices of appeal. Appellant’s fourth point relied on is multifarious and omits the standard of review, but the Court of Appeals can understand appellant’s arguments, and one of them relates to an issue not already appealed; so the Court of Appeals denies respondent’s motions to dismiss the appeal and sanction appellant, and exercises its discretion in favor of review ex gratia.  Appealing an order of contempt, entered for failure to comply with a judgment, raises no challenge as to that judgment. That judgment stood on evidence that appellant’s assets were adequate to pay the underlying judgment, including assets to pay his own attorney’s fees in related and unrelated litigation, and an asset subject to liquidation in the entire amount due albeit with adverse tax consequences. The same record supports a warrant of commitment.   
Anna Emealia Brown vs. Richard Lotman Brown  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84878 and WD84987

Relief granted from ineffective counsel  
In an action to terminate parental rights, a statute gives a parent the right to assistance of counsel, meaning effective assistance of counsel. Counsel representing both parents acted under an actual concurrent conflict of interest because the parents’ interests diverged as to the allegations and relief possible, limiting counsel’s ability to advocate for either.   
In the Interest of: T.A.G. and Z.Z.G.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111463

Amended overnight requires amended credit  
Unadjudicated allegations of driving while intoxicated did not require the circuit court to re-open the record. On acceptance of respondent’s proposed Form 14, the circuit court awarded respondent an overnight credit of 34%, but then accepted in part the guardian ad litem’s exchange schedule that required an adjustment of the overnight credit to 28%, which the circuit court failed to make.  Remanded for recalculation.    
Matthew W. Hagen, Respondent, vs. Jamie L. Harris, Appellant.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110935

Juvenile

Judgment needs a record and findings    
Appellant admitted on the record that all allegations in the Juvenile Officer's petition were true, but the circuit court made no determination on whether those admissions were knowing and voluntary, nor whether those admissions had a factual basis. Nevertheless, the circuit court’s adjudication order exercised authority over appellant as a juvenile, and its dispositional order committed appellant to State custody. Those rulings constituted plain error because they violated constitutional provisions and the implementing rule of juvenile procedure. The Court of Appeals reverses the circuit court’s adjudicative and dispositional orders.   
In the Interest of A.J.L.G. vs. Juvenile Officer  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85961

Probation revoked  
The Court of Appeals prefers ruling on the merits to dismissing the appeal under the escape rule. Clear and convincing evidence is necessary to revoke a juvenile’s probation. Evidence supported the admission of drug test results, and challenges to the test’s conclusiveness went to the weight of the evidence. Evidence of other, unchallenged, violations also supported revocation.    
In the Interest of B.J.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111060

Personal Injury

MVFRL made borrower an insured  
The Motor Vehicle Financial Responsibility Law does not conflict with any automobile insurance policy, it supplements every automobile insurance policy, so that the Law’s requirements are “read into” every automobile liability insurance policy. Therefore, when defendant test-drove a motor vehicle dealer’s vehicle, the dealer’s policy “named” defendant an insured. An insured is entitled to “access to [insurer’s] claim file regarding this accident and [insurer’s] handling of the plaintiff’s claim including all settlement negotiations and decisions [.]” In an equitable garnishment action against insurer and defendant, defendant cross-claimed against insurer on theories that included bad faith refusal to settle and filed a motion to compel responses to discovery from insurer. The circuit court granted partial relief, resulting in partial and redacted responses. A writ of mandamus will issue to review a circuit court’s denial of discovery that is not protected as work product or by privilege. The Court of Appeals makes permanent its preliminary writ ordering insurer to deliver discovery responses to respondent circuit court judge with a privilege log for respondent’s in-camera review. For insurer/insured privilege, defendant is the insured and the dealer is not.   
State of Missouri, ex rel. Brittany Trexler, Relator, vs. The Honorable Scott A. Lipke, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111729

Post-Conviction

One lesser-included offense instruction is enough   
To pursue one reasonable trial strategy to the exclusion of others does not show that trial counsel was ineffective. Trial counsel is not ineffective for choosing not to pursue a “preposterous” defense. Trial counsel is not ineffective for choosing not to call an uncooperative witness. Movant cannot show that trial counsel was ineffective for choosing not to call a witness without alleging how that witness had evidence supporting a defense. When the circuit court gives instructions on a greater offense and one lesser-included offense, trial counsel does not offer another lesser-included offense instruction, and the jury finds defendant guilty on the greater offense, no prejudice results.    
Ralph Jones, Appellant, v. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111279

Credibility determinations thwart motion   
“Plea counsel’s failure to inform the movant of the relevant and viable defense to the charges filed against the movant may negate the knowing entry of a guilty plea.” But the circuit court found movant’s testimony not credible, so it did not find any basis for a viable defense by way of lesser included offense. Trial counsel’s testimony was enough to support the circuit court’s finding that movant had no viable defense.   
Johnny M. Thomas, Appellant, vs. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111245

“Wife beater” reference okay  
When the State’s witness said that evidence at the crime scene included a “wife beater tank top [,]” trial counsel made no objection, which was sound strategy because nothing yet placed movant at the scene and an objection would only have drawn attention to the testimony. Written waiver of jury trial and circuit court inquiry showed that movant made the waiver knowingly, voluntarily, and intelligently, not simply in reliance on counsel’s advice.   
Kavion L. Thomas, Appellant, vs. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111160

When plea, appellate, and post-conviction counsel all the same, no conflict  
Movant showed no conflict of interest in counsel’s representation at the guilty plea and direct appeal. The same counsel’s representation in post-conviction proceedings raises no issue because there is no right to post-conviction counsel. Such a claim is “categorically unreviewable.”  
Sokol Zuko, Appellant, vs. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110988

Workers' Compensation

USPS determination on postage does not control  
Statutes allow review of an administrative law judge’s decision before the Labor and Industrial Relations Commission upon an application filed timely, and the date of a filing received by mail included a United States Post Office endorsement on the envelope with sufficient postage. A postmark provided endorsement, but the United States Post Office determined that postage was insufficient and returned claimant’s applications to the office of claimant’s counsel. The resulting delay caused delivery to occur after the filing deadline. But the Commission concluded that the applications were timely filed by mail based on testimony about the workings of the office postal meter, the amount due, and the amount affixed. That testimony came from a witness without work experience with the United States Post Office, but that went to weight, and not admissibility; and the Commission was entitled to credit that evidence, and appellate courts will not reassess it. The Commission did not err in determining that it had authority to review, and grant claimant relief on, the applications.     
Maryann Gray, Respondent/Cross-Appellant, v. Hawthorn Children's Psychiatric Hospital/State of Missouri, Appellant/Cross-Respondent, and Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Cross-Respondent.  
(Overview Summary)  
Supreme Court of Missouri - SC99995

Objective symptoms of an injury shown   
Statutes define an accident to include an event “producing at the time objective symptoms of an injury [.]” That included the strain that claimant felt when pushing a heavy cart, which produced difficulty walking later that shift. Testimony of claimant and claimant’s physician supported findings that claimant incurred her disabling injury on the job, and that the need for future medical treatment is reasonably probable. The Labor and Industrial Relations Commission determined that evidence to be credible and an appellate court will not change that determination. Claimant’s attempts to continue work did not negate the Commission’s findings of permanent total disability.   
Jeannie E. Harper, Respondent, vs. Springfield Rehab and Health Care Center/NHC Health, Appellant, Premier Group Insurance Company Corvel Enterprise Company, Inc. (TPA), Appellant, and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.; Jeannie E. Harper, Respondent, vs. Springfield Rehab and Health Care Center/NHC Health, Appellant, Premier Group Insurance Company Corvel Enterprise Company, Inc. (TPA), Appellant, and Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.  
(Overview Summary)  
Supreme Court of Missouri - SC100006

Application for review insufficient  
Statutes allow an appeal from an administrative law judge to the Labor and Industrial Relations Commission by the filing of an application for review. An application for review must “state specifically any reason the findings and conclusions of the administrative law judge were not properly supported” under the Commission’s regulation, which claimant failed to do, so the Commission did not err in dismissing the application and not addressing the merits of the claim. The merits of the claim are also the subject of claimant’s appeal but the Court of Appeals cannot address a ruling not made.   
Naina Chuhan, Appellant, v. Ergosafe Products LLC, et al., Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED111512