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Case summaries for Nov. 24 - Nov. 30, 2023


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.

Appellate | Attorneys | Civil | Construction | Criminal | DWI | Employment | Post-Conviction


Certification for appeal reversed 
The parties filed claims and counterclaims disputing the application of restrictive covenants to new construction. Judgment ruled on plaintiff’s claim, but not on the defendants’ counterclaims, even implicitly. Appellate courts sua sponte review their own jurisdiction over an appeal. Rules of appellate procedure allow an appeal from a judgment when final, meaning resolving all claims as to all parties. Rules also allow an appeal of a judgment that is less than final if certified. Certification is possible only for a judgment that resolves a judicial unit, either as to all claims for or against one party, or as to one claim factually unrelated to other claims. Neither applied to the judgment, because the same operative facts constitute the source of the claims and counterclaims, and because prayers for relief under both the claims and counterclaims remain unresolved. Appeal dismissed.  
Topping Estates, Carey Mullen, Eric Danker, and Carter Oldfield, Appellants, vs. The Spalitto Living Trust, Peter J. Spalitto, and Susan V. Spalitto, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111623


Lawyer barred from representing wholly owned plaintiff  
Rule bars attorneys from advocating at a trial in which the attorney is likely to be a necessary witness. Plaintiff limited liability company had one member, an attorney, so that attorney was the only person with first-hand knowledge of facts relevant to the company’s action to quiet title and for injunction. “Any hardship worked on [the company] was a result of [the company]’s own shortcomings in retaining counsel and preparing for trial, thus the trial court did not abuse its discretion in holding that the exception [to the rule did not apply to the attorney’s] motion to be admitted as attorney of record for [the company] on the morning of the trial.” Failure to comply with the rule governing a motion for continuance supports denial of the motion. The company showed no prejudice from the withdrawal of the company’s retained counsel in imperfect compliance with local rules.  
Kenneth P. Aston, Jr., and Lori A. Aston, as Trustees for the Kala Trust, Respondents, v. DBK Trust, LLC, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111562


Motion for extension of time discussed 
On a motion for an extension of time to file, no writing is required, only notice to the respondent and an opportunity to be heard. The elements include excusable neglect—a “mishap”—for untimely filing, which included movant’s miscalculation of the filing’s due date. The circuit court did not abuse its discretion in granting the motion for an extension of time to file a response to appellant’s motion for summary judgment. The Merchandising Practices Act creates an action for purchasers of services who suffer a loss due to a seller’s unlawful practices. But respondent seller’s cancellation of appellant buyer’s hotel reservation did not constitute any unlawful practice, because the seller disclosed that possibility in the terms and conditions with his confirmation, which the buyer accepted. That conclusion supports the judgment so, though the circuit court employed a different reasoning, the Court of Appeals affirms.  
Kurtis C. Watkins, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111367

Answer prevents default judgment, setting aside, and appeal 
Rule on default judgment applies only if defendant has “failed to plead or otherwise defend [,]” but defendants pleaded and otherwise defended, so no default existed on which to enter judgment. Absent a default, there could be a judgment on the merits, but no default judgment. Absent a default judgment, there could be no setting aside the default judgment under any rule. A ruling setting aside the “default judgment” was therefore merely an interlocutory order, setting aside a judgment on the merits, and no final judgment issued subject to appeal. Dismissed for lack of jurisdiction.  
Midwest Clearance Centers, LLC, Appellant, vs. St. Louis Retail Outlet, LLC, and Namdar Realty Group, LLC, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111193

Collateral attack fails 
A judgment is subject to appeal as final when the judgment disposes of all claims as to all parties. The absence of “the record holder of a deed of trust on the [property as] an indispensable (but unnamed) party” is irrelevant to jurisdiction, authority, or finality. One defendant had no standing to claim lack of personal jurisdiction over another defendant, even when they claim an interest by the entirety, at least where the interest is a mere convenience and not a right at law. Rule requires substitution for a deceased party only if death has not extinguished the claim. Death extinguished plaintiff’s claim to quiet title against a deceased defendant, because that defendant’s possession ceased on the defendant’s death, and the defendant was correctly omitted as a defendant in the judgment. The judgment made final an interlocutory order denying the deceased defendant’s claim to a life estate, arguing that an earlier judgment against that claim was void. That argument constituted an affirmative defense. An affirmative defense not raised in an answer need not be addressed in plaintiffs’ motion for summary judgment, and the record does not include any answer, so the Court of Appeals must affirm on that ground alone. And that affirmative defense constituted a collateral attack on the earlier judgment, which is possible only for a party with standing, which included only one appellant, a judgment debtor under the earlier judgment. Appellant judgment debtor failed to show that the earlier judgment was void on the face of the record for lack of subject matter jurisdiction, personal jurisdiction, or due process.  
Albu Farms, LLC vs. Hilda M. Pride, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85494


Mechanics liens gain priority over deed of trust on railway exchange building  
On a motion to re-open the record, it is an abuse of discretion to refuse, absent inconvenience to the court, or unfair advantage to a party, and material evidence substantially affecting the merits. Indemnity agreements and the deposit of purchase money in a pre-development fund showed that the lender knew that the money was for construction, which waived the priority of the lender’s deed of trust over mechanic’s liens. Pleadings on the liens resulted in judicial admissions as to the persons due notice of mechanic’s liens. Notice to an apparent agent was sufficient. Mechanic’s liens are valid only against projects on which the lienholder worked, which was less than all projects, so the Court of Appeals affirms the liens’ priority as to less than all projects and reverses as to the rest. Faulty legal description notwithstanding the description and street address of the project as invoiced were sufficient “to identify the premises covered by the lien” for “one familiar with the area [.]” Lienholder architects and engineers pleaded and proved that they were registered with the appropriate agency, as required to validate their lien, and self-authenticating documents admitted as further proof were merely cumulative. Substantial evidence, including the payment of invoices and other evidence, supported a finding that lienholders completed all services in a workmanlike manner. Substantial evidence, including unpaid invoices for contracted work and change orders, showed the amount of benefit conferred. Statute governing any contract for private design or construction work allows an award of attorney fees to the party prevailing in litigation over payment.  
Custom Construction Solutions, LLC, and Cannon Design, Inc., Plaintiffs/Respondents, v. B&P Construction, Inc., et al., Defendants, and HH St. Louis Railway L.P., and Gamma Real Estate Capital, LLC, Defendants/Appellants, and Geotechnology, Inc., Trustees Services, Inc., and Concrete Strategies, LLC, Defendants/Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111253


Multiple theories supported a warrantless search 
When a law enforcement officer’s experience and observations lead the officer to reasonably suspect criminal activity, the officer may conduct a warrantless stop to dispel those suspicions and may conduct a pat-down for weapons to protect the officer. And a plain feel disclosing contraband, like the distinctive texture of methamphetamine, requires no warrant for seizure.  Also, consent allows a warrantless search within the scope of consent. Further, a search incident to arrest requires no warrant to prevent possession of a weapon or destruction of evidence, within the arrestee’s reach. Any of those exceptions to a constitutional warrant requirement applied to defeat defendant’s motion to suppress evidence resulting from a search of defendant. Testimony about, and documentation of, a standard Gas Chromatograph-Mass Spectrometer test was sufficient to identify the evidence as methamphetamine.  
State of Missouri vs. Jason Scott Klein 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85767

Charge of greater offense allows conviction on lesser offense 
Even when unpreserved, sufficiency of the evidence is not subject to plain error review, only to review on the merits. Charging a greater offense gives the defendant notice of lesser included offenses. Statutes provide that charging a greater offense authorizes conviction on a lesser offense. On a motion for acquittal, the circuit court may submit a lesser included offense without entering acquittal on the greater offense. When the defendant made that motion before the circuit court instructed the jury, the ruling was subject to review without regard to the verdict director. The standard is whether, on all evidence favoring conviction, a reasonable juror could find defendant guilty. The defense waived any error, including plain error, in any instruction jointly drafted with the State. A point relied on was so non-compliant with the template prescribed by rule that it required re-writing to address, so the Court of Appeals dismissed it.   
STATE OF MISSOURI, Plaintiff-Respondent vs. ALAN D. HANELINE, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37401


No Miranda needed before reading implied consent 
As required by statute, a law enforcement officer read the implied consent statement to driver, before requesting a breath test, then gave driver a Miranda warning. No Miranda warning was necessary before reading the implied consent statement, because the driver could refuse without self-incrimination, and the result was not testimonial or even communicative. Circuit court’s order, granting driver’s motion to suppress, reversed. 
STATE OF MISSOURI, Plaintiff-Appellant vs. KRISTINA PROCTOR, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD37599


Contract bar rule explained 
Firefighters’ local filed a petition with the State Board of Mediation to certify a unit for fire captain employees, within the local, to bargain with employer city. That action was subject to review for “arbitrary and capricious” rulings because it constituted a contested case, even if no evidentiary hearing occurred before the Board dismissed the petition. The Board dismissed the petition under the contract bar rule. The contract bar rule prevents certification of a unit for employees already within an agreement with an employer. But the city’s agreement with the local expressly excluded fire captains. An agency that “completely fails to consider an important aspect or factor of the issue before it [has] acted arbitrarily and capriciously.” Reversed and remanded for further proceedings.  
Professional Fire Fighters of Eastern Missouri, International Association of Fire Fighters, Local 2665 vs. City of Richmond Heights 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD86174


No actual conflict of interest 
Before employment as a public defender, including when movant was charged, plea counsel worked for the circuit attorney’s office. Movant sought a change of plea counsel, which the circuit court denied. But even when characterized as circuit court error, ineffective assistance of counsel is not subject to direct appeal, only to post-conviction relief for ineffective counsel. Effective counsel includes counsel with no conflict of interest. No actual conflict of interest or appearance of impropriety reasonably appeared when the circuit attorney’s office did not involve counsel in, and counsel had no knowledge of, the case against movant.  
Charles Napper, Jr., Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111129

No prejudice shown from juror misconduct 
Movant’s evidence of juror misconduct, in obtaining and offering extraneous information during deliberations, showed no prejudice because the information was not material. Also, the information went only to greater charges that the jury rejected in favor of lesser charges, negating any influence on the deliberations. The circuit court did not err in ruling that no different outcome was reasonably likely if counsel had further investigated the misconduct.  
Jamel Yates, Appellant, v. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110862

Decision not to call witnesses okay 
On a claim of ineffective counsel, movant must show that substandard performance resulted in prejudice to movant. When movant alleges that trial counsel chose not to call witnesses but does not show that such witnesses would have testified, movant cannot show substandard. Trial counsel’s testimony showed a sound strategy against calling the witnesses. Movant did not show that the circuit court was wrong to rely on exhibits related to those witnesses’ availability or willingness to testify because movant did not include them in the record on appeal. When no such witness would have supported a viable defense, movant cannot show prejudice.  
Kyle Klosterman, Appellant, vs. Vacation Management Solutions, LLC, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111401