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Case summaries for Nov. 20 - Nov. 24


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.

Administrative | ADR | Civil | Construction | Criminal | Employment | Insurance | Personal Injury | Post-Conviction | Tax | Workers' Compensation


Inverse Condemnation Is Separate Remedy from Judicial Review of Contested Case
County’s new zoning ordinance, requiring a pre-decision hearing, applied to pending applications for conditional use permits without violating the Missouri Constitution’s ban on retrospective legislation. The application procedure was a contested case, but the property owner filed for judicial review of a non-contested case, failing to secure the circuit court’s authority to review the decision on the application, so the circuit court did not err in dismissing the petition for judicial review. But that was not the property owner’s exclusive remedy, because the Missouri Constitution allows a claim for inverse condemnation, which seeks “wholly separate” relief. A “takings claim assumes that the denial ... will remain in place” but argues that the property owner “should be justly compensated for this deprivation.” The circuit court abused its discretion in denying leave to amend the petition to state a claim for inverse condemnation. Reversed to grant leave to amend.
Metro Fill Development LLC, Appellant, vs. St. Charles County, Missouri, and Joe Kronin, Mike Elam, Dave Hammond, Terry Hollander, Mike Klinghammer, John White, and Joe Brazil, in their official capacities, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108533


Arbiter’s Ruling Collaterally Estops Arbitration
No matter is subject to arbitration without an agreement to arbitrate. An arbitration provision was part of the parties’ contract, validly delegating to an arbitrator any dispute as to whether any matter was subject to arbitration. In earlier litigation on the contract, on appellant’s motion to compel arbitration, an arbitrator ruled the arbitration provision unconscionably made all other matter subject to arbitration and was therefore null as to the contract dispute. That ruling constituted a substantive and final determination on the merits of an action separate from the earlier litigation, not an interlocutory order in the earlier litigation, so the ruling was binding on appellant, respondent’s voluntary dismissal of the earlier litigation notwithstanding. “[A]n arbitration award may constitute a judgment on the merits for purposes of collateral estoppel.” The ruling collaterally estopped appellant’s motion to compel arbitration in later litigation.
Steven Pinkerton vs. Technical Education Services, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83594


Must Grant Motion for Transfer When No Response Filed
Rule provides that, when the circuit court receives no response to a motion for transfer, “the court shall order transfer to one of the counties specified in the motion.” Local rule designating which division convenes a hearing on a motion does not require a hearing on relator’s motion and, even if it did, could not alter Supreme Court rules. Rule bars arguments not briefed.
State ex rel. Vacation Management Solutions, LLC, Relator, vs. The Honorable Joan L. Moriarty, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98323

Preservation Not Necessary for Review of Summary Judgment
Rule on summary judgment allows judgment only for the moving party so, while the non-movant party may prevail on the motion, that cannot support summary judgment for the non-moving party. The non-moving party cannot prevail on the merits of the action by summary judgment without its own motion for summary judgment. That is because denying summary judgment leaves the issues for decision by trial, which is why an order denying summary judgment is an interlocutory order, not subject to appeal except in conjunction with the grant of an inextricably intertwined order granting summary judgment. Because an appellate court reviews summary judgment de novo, appellant need not preserve any error as appellant ordinarily must for review on the record.
Joyce Elaine Bozarth vs. Edgar Foshe Bozarth, Sr.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83493 and WD83650

Standing Waived
Rule provides that a defense based on plaintiff’s standing is waived unless specifically denied with particularity. Because standing is the grounds of appellant’s only points relied on, Court of Appeals affirms the judgment. 
Missouri Court of Appeals, Southern District - SD36607


Recovery on Contract and Quantum Meruit
On one set of facts, a party may plead inconsistent theories: theories for which establishing one negates another. Evidence supporting any theory supports submitting that theory for judgment, including conflicting evidence for inconsistent theories. The parties disputed whether they had a contract, so respondent submitted theories of contract and quantum meruit. The evidence supported a finding that appellant made an oral contract with respondent, separate from respondent’s subcontract with appellant’s general contract, for respondent to finish the general contractor’s work. “Affirming the breach of contract claim alone supports affirming the judgment.” Because the facts for one theory negate the other, only one of those theories can support a judgment; but the judgment expressly found the same damages under either theory, merged the awards, and awarded only one recovery. Statutes allow awards of interest and attorney fees on a construction contract, even without a writing.
Twehous Excavating, Inc. vs. Jefferson City Retirement, LLC
(Overview Summary)
Missouri Court of Appeals, Western District - WD83547


Juvenile Sentenced to Life Without Parole Gets Parole Hearing, Not Resentencing
An action for declaratory judgment can address a statute’s constitutionality. When circuit court imposed sentence on appellant, statute allowed death or life without parole, but appellant was juvenile when she committed her offense. That made the statute’s choices unconstitutional, absent consideration of factors related to juvenile status, so new statutes assigned that consideration to parole board. Parole board’s authority does not violate separation of powers, nor constitute a bill of attainder, because the board is not determining punishment. The constitutionality of appellant’s specific sentence is subject to challenge by habeas corpus
James Hicklin, a/k/a Jessica Hicklin, Appellant, vs. Eric Schmitt, et al., Respondents.
(Overview Summary)
Supreme Court of Missouri - SC97692


Termination Over Threat Upheld
A pre-termination hearing constituted a check for probable cause to terminate appellant, notice of the allegations against appellant was sufficient, and notice need not describe the evidence against appellant. City’s civil service rule forbids threats of violence in the workplace, and that prohibition “protect[s] individuals from the fear of violence and from the disruption that fear engenders, [and] from the possibility that the threatened violence will occur [,]” so the United States Constitution’s First Amendment does not protect such speech. Regulation’s definition of violence was not vague, did not discriminate between spoken and written words, and was not overbroad as a workplace standard. Posing [a workplace shooting scenario] as a hypothetical does not make it less threatening.”
Melvin Diggs, Appellant, vs. City of St. Louis, et al, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108521


Owned-By Vehicle Exclusion Shown
Automobile insurance policy’s uninsured motorist provision limited coverage for vehicles owned by specified persons. Title is prima facie proof of ownership, subject to rebuttal, which appellant did not accomplish.
Missouri Court of Appeals, Southern District - SD36655

Personal Injury

Summary Judgment Record Under Railroad Statutes Discussed
Rule on summary judgment provides that a record made as that rule provides is the sole basis for ruling on the motion in circuit court and on appeal. Plaintiff suffered no prejudice from exclusion of expert opinions to which defendant admitted, or that applied to pre-empted claims. Federal statutes pre-empt claims for liability related to railroad crossings, speed, careful lookout, and locomotive horn that comply with federal standards, which defendant established beyond genuine dispute, except as to horn’s decibel level. Suggestions in support of the motion, without citation to the summary judgment record, do not establish the horn’s decibel level; on that claim, and a related claim for punitive damages, the circuit court erred in granting summary judgment for defendant railroad.
Judith Ann Campbell, As Guardian and Conservator of Krista Molly Barnhart vs. Union Pacific Railroad Company; Richard Louis Alsbury and William Lamar Woodward
(Overview Summary)
Missouri Court of Appeals, Western District - WD83328


Mailbox Rule Inapplicable
Circuit court erred in applying amended rule, adding a mailbox provision, to a motion that was due before that amendment’s effective date. Judgment on the untimely motion vacated and remanded for dismissal.
Norris E. Payne, Jr. vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83228


Estimated Assessment Okay
Sales tax statutes require retailers to keep adequate records. Statutes allow the Director of Revenue to assess additions to tax when a seller keeps records of sales negligently. In an action before the Administrative Hearing Commission, statutes do not require the Director of Revenue to prove anything unless the retailer produces such records that raise a reasonable dispute as to an assessment of tax, which standard appellant did not meet. Appellant failed to keep certificates of exemption in lieu of sales tax for tax-exempt sales as required by statute, did not offer evidence of tax-exempt status into evidence, and did not ask the Commission to take official notice of any document. Appellant did not carry its burden of proving that it had any sales for the assessment period other than as estimated. The record supports the sales tax liability as found by the Administrative Hearing Commission. Statutes impose a penalty for failing to maintain adequate records, and requires the Director to set forth with peculiarity the grounds for a penalty only on request. The evidence shows no reasonable attempt to maintain adequate records, and reliance on an accountant to prepare returns from appellant’s records does not cure the inadequacy of those records, so the evidence supports a conclusion that appellant is liable for a penalty.
SEBA, LLC, Appellant, vs. Director of Revenue, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98601

Workers' Compensation

Failure to Prosecute Affirmed
On an injury that happened in 1997, claimant failed to maintain contact with counsel or the Labor and Industrial Relations Commission. Once an administrative law judge dismisses a claim, a motion to set aside must at least allege facts supporting the motion, and no hearing on the motion is necessary otherwise. The same is true of an application for review to the Labor and Industrial Relations Commission.
John Hager, Appellant, vs. Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108950