Case summaries for November 22-27, 2024

Appellate | Attorneys | Civil | Consumer | Constitutional | Criminal | Evidence | Orders of Protection | Post-Conviction | Probate | Real Estate | Schools 
 Workers' Compensation

Appellate

Judgment mooted appeal of decision 
Appellate courts did not decide moot controversies, including controversies abandoned by appellant “by continuing before the determination of the motion in a manner which is not consistent with the object of the motion.” Appellant abandoned the appeal of an administrative order when, pending judicial review of that order, appellant sought a judicial order for the same relief. The Court of Appeals dismissed the appeal. 
(Overview Summary) 
Timothy Wells, Appellant, vs. Department of Social Services Family Support Division, et al., Respondents 
Missouri Court of Appeals-Eastern District – ED112549

No appeal of legislative stay 
Pending a General Assembly session, statutes provided a stay of any action in which a member of the General Assembly was counsel. Such a stay order was not among the interlocutory orders specified by statute as subject to immediate appeal by the State in criminal actions. The Court of Appeals’ authority over modifications of a legislative stay order did not constitute authority to hear an appeal of the stay, and was unconstitutional, because the Constitution gave the Court of Appeals only appellate jurisdiction. And the order had expired anyway, so the matter was moot for lack of any possible effectual relief. 
(Overview Summary) 
State of Missouri vs. Craig Dalton Coward 
Missouri Court of Appeals-Western District – WD87017

Briefing deficiencies required dismissal 
Appellant briefs not compliant with rules put appellant courts in the position of ruling on inadequate briefing or advocating for appellant. The statement of facts had to be non-argumentative, the points relied on had to follow the prescribed format and include citations to authority, and the argument had to set forth the standard of review and refer to the record. Failure to comply with those rules made the appeal unreviewable. Rule allowed an award of attorney fees that the litigation’s 13-year history and meritless claims supported. The Court of Appeals dismissed the appeal and remanded the action to circuit court for a determination of attorney fees. 
(Overview Summary) 
Laronda Phox vs. Verlin Boes, Et al. 
Missouri Court of Appeals-Western District – WD86248

Attorneys

Arbitration denied 
On a motion compel arbitration, the first inquiry was whether arbitration was part of any contract, because arbitration was always and only a matter of contract. On that issue, the circuit court’s ruling was subject to de novo review. Decedent and decedent’s partner had a smaller law firm and formed a larger firm. The larger firm’s operating agreement included an arbitration clause. Signatories to the agreement included decedent but not decedent’s partner, smaller firm, estate, nor personal representative. “[Decedent] in his corporate capacity as general partner of [smaller firm], is a distinct entity from [partner] in his individual or corporate capacity as manager of [larger firm]. The respective legal identities are unrelated.” The operating agreement still functioned and was unrelated to a dispute over life insurance proceeds, so there were no grounds for asserting the arbitration agreement against non-signatories. The Court of Appeals affirmed the judgment denying the motion to compel arbitration. 
(Overview Summary) 
Diane Maune, as personal representative of the estate of Neil J. Maune, Respondent, v. Marcus Raichle, Jr. and The Maune Raichle Law Firm, Appellants. 
Missouri Court of Appeals-Eastern District – ED112669

Civil

Summary judgment motion was not sufficient 
On a motion for summary judgment, the moving party could prevail by establishing facts that entitled the moving party to a favorable ruling, if the entitling facts went without genuine dispute. When the movant failed to establish such facts, respondent did not have to raise any dispute as to the facts. On a petition for negligence, the plaintiff had the burden of proof so defendant could prevail by showing that, after enough time for discovery, plaintiff could produce no evidence in support of causation. Defendant’s motion recited plaintiff’s allegations and cited one interrogatory response. The motion did not show that plaintiff could not produce evidence of causation and did not even require a response from plaintiff. The circuit court erred in granting the motion, so the Court of Appeals reversed the judgment, and remanded the action. 
(Overview Summary) 
Stacy A. Albright, Appellant, v. Union Electric Company, Respondent. 
Missouri Court of Appeals-Eastern District – ED112829

Circuit court had jurisdiction over relief not pled 
On motions to modify child custody, the prevailing party received an award for unreimbursed medical expenses. Constitutional provisions vested circuit courts with plenary jurisdiction and the absence of a prayer for certain relief did not alter the circuit court’s subject matter jurisdiction to award that relief. Appellant argued that ordering reimbursement of medical expenses in the absence of a prayer for such relief deprived the circuit court of subject matter jurisdiction, so the circuit court’s ruling deprived appellant of due process. But to preserve any constitutional issue, a party must raise it as early as possible, but appellant did not show compliance with that requirement because appellant did not include a transcript in the record on appeal. A party must also include the constitutional issue in a post-trial motion and appellant failed to do so. 
(Overview Summary) 
In Re the Matter of: L.K.B., a Minor, By Next Friend Matthew Timothy Bethel and Matthew Timothy Bethel vs. Kelsey Nicole Salmon 
Missouri Court of Appeals-Western District – WD87070

Consumer

Class action OK
The Uniform Commercial Code provisions governing secured transactions specified the content of pre-sale and post-sale notices and provided liability for lenders’ failures to comply. Debtors in consumer-goods transactions seeking such statutory damages from defendant had standing to bring a class action. But appellant and class members debtors did not show any violations because: letterhead authenticated the notices, dealer-only auctions constituted private sales; no time certain of the sale was necessary and days-from-this notice was sufficient; and the description of possible deficiencies and an over-estimate of repossession costs by less than one percent, did not discourage debtors from pursuing remedies. The circuit court erred in granting partial summary judgment for appellant on lenders’ deficiency claim and for appellant and class members on a counterclaim for damages. The Court of Appeals reversed the judgment and remanded for further proceedings. 
(Overview Summary) 
Americredit Financial Services, Inc., D/B/A GM Financial, Appellant-Cross Respondent, vs. Nicole M. Bell, Respondent/Cross Appellant. 
Missouri Court of Appeals-Eastern District – EDD112095 Consolidated with: ED112097, ED112098, ED112167, ED112187, and ED112188

Constitutional

No appropriation needed 
A constitutional provision allowed the Highway and Transportation Commission access to the State Road Fund “without appropriation” for two specified priorities, and for other purposes “in the sole discretion of” the commission. Those purposes included the salaries of commission employees. “[T]he entire State Road Fund stands appropriated without legislative action.” 
(Overview Summary) 
Missouri Highways and Transportation Commission vs. Kenneth Zellers, Commissioner of Administration 
Missouri Court of Appeals-Western District – WD86843

Criminal

Right to be present, right to testify, lost 
Plain error review required appellant to plead an open and obvious error, and to proof a manifest injustice or miscarriage of justice. Only defendant could choose whether to testify but could forfeit that right through behavior disruptive to the trial. A defendant “cannot claim the benefit of constitutional rights while at the same time engaging in disruptive conduct that makes it exceedingly difficult to carry on a trial.” The record showed behavior conduct made it impossible to conduct an orderly trial, supported removal of defendant from the courtroom, and waiver without a record. No plain error occurred so the Court of Appeals affirmed the conviction. 
(Overview Summary) 
State of Missouri, Respondent, v. Javontea Jones, Appellant. 
Missouri Court of Appeals-Eastern District – ED112161

Relief granted in circuit court, none left on appeal 
Rule allowed circuit court to detain defendant without bond if trial occurred within a time certain. For failure to meet that deadline, the remedy was a remedial writ, but defendant filed a motion to dismiss, and the circuit court did not err in denying that motion. A venire person knew who defendant was from the venire person’s time as a dispatcher, often sending responses to an address associated with defendant. Defendant received the requested relief, which was dismissal of that venireperson, and did not show that the rest of the venire was tainted, so no plain error occurred when the circuit court did not sua sponte declare a mistrial. 
(Overview Summary) 
State of Missouri, Respondent, vs. Arthur Noel Lewis, Jr., Appellant. 
Missouri Court of Appeals-Eastern District – ED111997

No self-defense for burglary 
An instruction is due on any matter supported by substantial evidence. On a challenge to a jury instruction, appellate courts reviewed the evidence favorably to the instruction as submitted, and only the State offered an instruction on self-defense. Self-defense is unavailable when the defendant was “attempting to commit, committing, or escaping after the commission of a forcible felony.” The self-defense instruction denied the defense if defendant was committing a burglary when shooting at victims. That instruction had support in evidence that defendant pursued victims into a residence to which victims had closed the door. Burglary definitions of “entering unlawfully” and “remaining unlawfully” were permissive and not mandatory so omitting them was not error. The circuit court did not err in refusing to strike a witness’s testimony for “his initial refusal to answer” when that refusal “was cured by the trial court’s actions so as to enable effective cross-examination.” The Court of Appeals affirmed the conviction. 
(Overview Summary) 
State of Missouri, Respondent vs. Robert Brefford, Appellant. 
Missouri Court of Appeals-Eastern District – ED111688

Expert endorsed late was OK
Grounds for severance of a charge included bias over that charge resulting in particularized prejudice, which child victims did not show, at least where the evidence of defendant’s murder spree was relatively straightforward. Signs allowing courtroom ingress and egress only during breaks did not violate defendant’s right to a public trial. The circuit court did not err in denying exclusion of a late-endorsed video expert’s testimony, when defendant had the expert’s report for over three years and the circuit court found no bad faith. The circuit court did not err in admitting a photograph showing defendant’s appearance when arrested because it showed that defendant matched descriptions of the perpetrator and had facial cuts, as from glass shattered at the crime scenes. A photograph showing contraband at one of the crime scenes was admissible because the State did not offer it as propensity evidence, and it provided a complete and coherent picture of the events. No plain error occurred when the circuit court submitted an instruction that varied from the charges, to correct the name of a child victim, as to which the defense stated that it had no objection. The elements of endangering the welfare of a child in the first degree included acting knowingly, which the State supported with evidence that defendant knew that children lived in the small house into which he entered while firing his pistol and continued to fire on entering. 
(Overview Summary) 
State of Missouri vs. Issac Jermale Fisher 
Missouri Court of Appeals-Western District – WD85974

Evidence

Best evidence rule applied barred screenshots and testimony 
When the erroneous admission of evidence was reversible when the jury would reasonably likely have acquitted without it. On a charge of stealing by deceit, allegedly switching price tags, no evidence showed defendant switching price tags on cables. The circuit court allowed two screen shots from a surveillance video, some showing defendant around the store and some showing an unidentifiable person, identified as defendant by defendant’s employee. The defendant disputed that identification, so the Best Evidence Rule required that the video’s disputed content be shown in full unless unavailable. The State did not show unavailability because the video was accessible from the victim’s Missouri store and the State did not show that it even tried to get the video. Admitting the screenshots and accompanying narrative testimony was error. The only evidence that a cable was missing was a document for which the State provided no authenticating witness, just an employee who read the reports, and did not testify to any familiarity as to the preparation of such reports. The only other evidence was that the employee heard that a cable was missing from inventory and a clerk checked defendant’s purchase out. The Court of Appeals reversed the conviction and remanded for new trial. 
(Overview Summary) 
State of Missouri, Respondent, v. Demarco King, Appellant. 
Missouri Court of Appeals-Eastern District – ED112260

No expert testimony on credibility 
Statutes provided that otherwise properly founded expert testimony was admissible on any matter helpful to the jury, but only up to the boundary of the jury’s province, which was determining credibility. Under that standard, the defense’s expert could testify to the effects of coercive interrogation but not as to the accuracy of a confession obtained through such means, so the circuit court did not err in excluding such testimony. The Court of Appeals affirmed the conviction. 
(Overview Summary) 
State of Missouri, Respondent v. Edward H. Mosely, Appellant. 
Missouri Court of Appeals-Eastern District – ED111999

Orders of Protection

More than horseplay shown 
Statutes allowed a parent to seek an order protection based on battery of child by defendant. Plaintiff cited bruises on child, and defendant alleged that the bruises were the accidental result of play, but the overwhelming weight of the evidence supported plaintiff. That evidence included defendant’s initial denial, changed to testimony that the marks were the result of biting and sucking on child’s skin, described by a third-party witness and shown by photographs, which had happened five to ten times in the past. By contrast, defendant’s inconsistent and self-serving testimony that defendant intended no harm had “minimal probative value.” The Court of Appeals reversed the circuit court’s judgment that denied a full order of protection. 
(Overview Summary) 
J.A.W., Appellant, vs. V.W., Respondent. 
Missouri Court of Appeals-Eastern District – ED112273

Post-Conviction

Different strategies were OK for different charges 
The elements of ineffective assistance of counsel included substandard performance, which a sound strategy negated. On multiple charges, it was a sound strategy to concede guilt on lesser offenses and deny guilt on a charge of first-degree murder, because that strategy enhanced credibility. And a conviction did not negate the soundness of a strategy, especially when movant acquiesced in that strategy. “An ineffective assistance inquiry is not concerned with ‘the distorting effects of hindsight’ but rather the reasonableness of trial counsel’s decision at the time it was made.” 
(Overview Summary) 
Brad Lindsey vs. State of Missouri 
Missouri Court of Appeals-Western District – WD86653

Rule in effect governed time to file 
Any rule generally applied to any proceeding pending as of the rules effective date, and the rule governing the time for filing did not provide otherwise, so movant’s filing according to that rule was timely. The motion charged that trial counsel was ineffective for failing to object that convictions for armed robbery and unlawful use of a weapon constituted double jeopardy. The circuit court found that such objection would have lacked merit, which negated movant’s theory of counsel’s ineffective assistance. On appeal, movant did not challenge that ruling, so movant showed neither error nor prejudice. 
(Overview Summary) 
Christopher A. Scott vs. State of Missouri 
Missouri Court of Appeals-Western District – WD86373

Choices were strategic, counsel’s testimony to the contrary notwithstanding 
A claim for ineffective assistance of counsel required movant to show that counsel’s substandard performance prejudiced movant. As to whether trial counsel should have objected to a witness’s testimony about videos, the Court of Appeals could rule only on one video included in the record. On three charges of possessing contraband in jail, the jury instructions tracked the charges and described the items possessed as various types of items usable as weapons, to which trial counsel made no objection. The jury’s rejection of lesser included offense instructions for two charges, describing the items as personal property, showed that the characterizations made no difference, so trial counsel’s practice caused no prejudice. As for the third charge, trial counsel’s choice to address the evidence in closing rather than object caused no prejudice, and the circuit court was not required to believe trial counsel’s testimony that there was no strategic reason for offering no lesser included offense instruction. 
(Overview Summary) 
Miguel Torres vs. State of Missouri 
Missouri Court of Appeals-Western District – WD86258

Probate

Tortious interference with an inheritance expectancy explained 
A claim for civil conspiracy is a theory of joint and several liability and required more than one defendant. A judgment dismissing a claim for failure to join necessary and indispensable parties was erroneous without an analysis of how the parties not joined were necessary and indispensable. The elements of tortious interference with an inheritance expectancy included the absence of an adequate remedy under probate law. Remedies under probate law directed against a trustee, removal or damages for breach of trust, were adequate as to the assets of one trust, but not another where the settlor-trustee was still living. As to the latter, plaintiff trust beneficiaries had standing to make claims on their own behalf against third parties. Plaintiffs timely filed their claims within five years of the settlor’s death because settlor’s death gave rise to the plaintiffs’ property interest. The circuit court erred in dismissing that claim. Rule treated a premature notice of appeal as filed when judgment became final. A dismissal without prejudice constituted a final judgment when the dismissal concluded that the action belonged in probate division and terminated the action in plaintiffs’ chosen forum of circuit court and an amended petition would have been futile. An error in specifying the judgment appealed did not thwart the Court of Appeals’ jurisdiction. The Court of Appeals remanded the action to circuit court for further proceedings including a determination as to whether a judgment of the probate division collaterally estopped the circuit court action. 
(Overview Summary) 
Forrest K. Backer, Jr., Et al. vs. David A. Backer, Et al. 
Missouri Court of Appeals-Western District – WD86908 (Consolidated with WD87068)

Real Estate

No circuit court review of board of equalization decision 
Statutes entrusted a “complex system of property taxation” to the State Tax Commission. The process included a physical inspection of certain properties, an appeal from the assessor to a Board of Equalization, an appeal from the board to the commission with certain exemptions that included the board’s authority, which were subject to judicial review in circuit court by writ of certiorari. That latter course was how property owner proceeded. The circuit court issued a preliminary writ but then quashed it, making the judgment subject to appeal; on the merits when the judgment was on the merits, and for abuse of discretion when not on the merits. The circuit court did not abuse its discretion in quashing the writ for lack of authority because the owner’s challenge to the board’s decision was factual — that no physical inspection supported the board’s decision — so the administrative remedy at the commission remained unexhausted. That challenge did not describe a challenge to the board’s authority. The Court of Appeals affirmed the judgment. 
(Overview Summary) 
Sweetgum Properties, LLC, Appellant, vs. St. Louis County Board of Equalization, Cheryl A. Kunzler, James F. Horne, and Robert S. Koch, Respondents 
Missouri Court of Appeals-Eastern District – ED112750

Schools

Sovereign immunity and official immunity applied to student’s injury 
A motion to dismiss for failure to state a claim challenged the sufficiency of the petition’s allegations to the elements of any theory on which the law allows recovery. The law allowed recovery against the State and its political subdivisions only as provided by the statute that governs sovereign immunity. Sovereign immunity was not an affirmative defense so a petition for relief against a school district had to allege one of the statute’s exceptions allowing suit against the State. One such exception was a suit over dangerous conditions of State property. State property was in a dangerous condition if it was defective or improperly placed. The petition alleged that plaintiff struck her head on a metal pole used as a barrier. “That a metallic barrier arm was hard enough to knock out and concuss a small child whose head makes contact with it does not make the property defective” and “[p]lacement of a barrier arm in a position to block passage is a function, not a defect, of property of this type.” School district employees were entitled to official immunity while acting within the scope of their official authority and within their discretion. Discretion included the time and manner of performing a duty. The petition alleged no statute or policy eliminating discretion. The circuit court did not err in granting the defendants’ motion to dismiss for failure to state a claim. 
A.S. and K.S., individually and as next friends of minor J.S., Appellants vs. WILLARD PUBLIC SCHOOLS, MATT TEETER, AMANDA HAMBEY, MISSY LUCAS, and DOES #1-20, Respondents 
Missouri Court of Appeals-Southern District – SD38222

Workers’ Compensation

Enhanced benefits applied 
Recognizing that multiple injuries disabled workers together more than separately, the statutes enhanced disability ratings and provided Second Injury Fund benefits to a claimant with permanent total disability and at least one qualifying pre-existing disability. The qualifications were 50 weeks of permanent partial disability as a direct result of a compensable injury. Qualifying injuries as earlier adjudicated, including causation and enhanced disability, applied to later claims for later injuries. Any disability percentage assigned in a separate settlement with employer was irrelevant. The Court of Appeals reversed the Labor and Industrial Relations Commission’s denial, and remanded for an award, of Second Injury Fund benefits. 
(Overview Summary) 
Patrick Ryan, Appellant, vs. State of Missouri, Second Injury Fund, Respondent. 
Missouri Court of Appeals-Eastern District – ED112149