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Case summaries for Dec. 1 - Dec. 7, 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.

ADR | Appellate | Criminal | Evidence | Juvenile | Post-Conviction | Real Estate | Workers' Compensation


Arbitration compelled        
Employer and employee entered into an arbitration agreement. When employer fired employee, employee filed an action in circuit court for sex discrimination and retaliatory discharge for reporting sexual harassment, and employer filed a motion to compel arbitration. The circuit court made no findings of fact, so no deference is due on appeal. “[Employee] must challenge the delegation provision separately from the arbitration agreement itself [,] directly and specifically [, and] ‘standing alone’ from the rest of the arbitration agreement.” Mutual promises to arbitrate are sufficient consideration. The parties’ arbitration agreement included a delegation provision that assigned any dispute to an arbitrator, including the existence and validity of the agreement, and the scope of the arbitrator’s subject matter authority. That delegation provision “‘is simply an additional, antecedent agreement’ [that employer] asks the court to enforce.” Circuit court’s order denying the motion to compel reversed.         
Liana Valle, Respondent, vs. The Shack Restaurant Group, LLC d/b/a The Shack, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111609


No judgment, no appeal        
On respondent’s motion to modify, the circuit court ruled favorably and issued its judgment. That judgment was the subject of the court’s sua sponte amendment, set forth in a docket entry, but that amendment occurred past the time limit of the circuit court’s authority. The circuit court later issued a ruling memorializing the amendment, but did not denominate that ruling as a judgment, so that ruling is not subject to appeal.         
ROSE MARIE LEMMO, Petitioner-Respondent v. TIMOTHY LLOYD NOBLES, Respondent-Appellant 
Missouri Court of Appeals, Southern District - SD37972


Corpus delicti rule satisfied        
Character evidence is evidence of a general trait and does not include specific incidents, so evidence that defendant was undergoing a dissolution of marriage was not subject to exclusion as character evidence, and defendant showed no prejudice. The corpus delicti rule bars “defendant’s out-of-court confession or ‘extrajudicial admissions’” from evidence absent evidence from another source corroborating the admission. The elements of sodomy include victim’s incapacity, which “abundant” independent sources corroborated. Sufficient evidence supported a conviction.         
State of Missouri, Respondent, v. Cecil Burrow, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110967

Conviction affirmed for resisting a lawful stop        
The elements of class A misdemeanor resisting a lawful stop by fleeing include a purpose of preventing a law enforcement officer from effecting a stop. A reasonable juror could infer such a purpose from defendant’s conduct, both in and out of defendant’s vehicle, after the officer activated lights and siren. That conduct included accelerating his vehicle away, break-checking the officer, reversing toward the officer, fleeing on foot, and physically struggling with the officer.       
STATE OF MISSOURI, Plaintiff-Respondent v. MICHAEL JACOB SMITH, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37886

Nonsupport conviction affirmed        
On a charge of misdemeanor nonsupport, defendant’s biological parentage of a child is not at issue, only the defendant’s “knowledge of the legal obligation to provide support in an adequate amount for the child.” Whether good cause for nonsupport exists is not an element of the offense, it is an affirmative defense, so the State has no burden on it. Indigency for purposes of appointed counsel does not show inability to pay support.           
STATE OF MISSOURI, Respondent v. SEBASTIAN A. RUST, Appellant 
Missouri Court of Appeals, Southern District - SD37560


Point relied on must specify objection        
A challenge to the admission of evidence on judicial notice must fail when the circuit court did not take judicial notice. At trial, appellant raised several objections to evidence of his drug tests. On appeal, appellant failed to specify which objection the circuit court should have sustained, rendering his point multifarious. And appellant’s testimony that all his drug tests were positive rendered cumulative, and therefore harmless, any other evidence of that fact. When a judgment stands on more than one theory, and appellant fails to challenge all theories, an appellate court must affirm the judgment on any unchallenged theory.         
Missouri Court of Appeals, Southern District - SD38058


No change in placement, no appeal        
Circuit court committed a child to the Children’s Division, which placed the child with a non‑relative foster family through a case management contractor. Pursuant to a statute requiring a review of a child’s best interests at least annually, and denying family members’ motions for custody, the circuit court ordered placement to remain as it was, naming the foster family instead of the Children’s Division. Statute governing juvenile procedure “provides that ‘an appeal shall be allowed to the . . . [p]arent . . . from any order changing or modifying the placement of a child.’” But the order made no change in placement or modification in the provisions of placement. The purpose of naming the foster family was to maintain the status quo and deny any change or modification. No statute allows an interlocutory appeal of that order so the Court of Appeals dismisses the appeal.         
In Re: J.A.F., Juvenile; Juvenile Officer and Department of Social Services, Children's Division vs. J.J.J.F. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85942


Claims barred after direct appeal        
When claiming ineffective assistance of counsel, movant must show a sub-standard performance by counsel, and a reasonable probability that such lapse changed the result. As to trial counsel’s decision to make no objection to the State’s redirect examination, movant did not rebut the presumption that trial counsel’s decision was reasonable and effective and did not show any prejudice.  As to trial counsel’s decision to make no objection to the State’s closing argument, direct appeal under plain error review found no manifest injustice or miscarriage of justice, foreclosing review under post-conviction relief. As to the length of movant’s sentence, issues subject to direct appeal are not cognizable under post-conviction relief, even if not directly appealed. Each of those theories appeared in the first amended motion and the second amended motion. The second amended motion was the subject of the circuit court’s judgment, but that was error: the first amended motion was timely, so no abandonment occurred, making the second amended motion untimely, depriving the circuit court of authority to rule on the second amended motion. Ordinarily, an appellate court would remand the judgment for a ruling on the first amended motion’s claims. But those rulings already happened: the circuit court ruled on the second amended motion, and the second amended motion included all claims in the first amended motion. No further circuit court proceedings are necessary. The Court of Appeals can render the judgment that the circuit court should have. The second amended motion also pleaded two additional claims but, since the circuit court had no authority to rule on them, the appeal is dismissed as to those claims.         
JEFFREY D. JENDRO, Appellant v. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals, Southern District - SD37537

Real Estate

Insufficient notice thwarts association’s fine         
Plaintiff lot owners’ association filed a petition to enforce a lien as provided in restrictive covenants, which authorized a fine for violation of the covenants. Rule required defendant to allege any new facts supporting an affirmative defense like sufficiency of the notice.  But sufficiency of the notice was already alleged in plaintiff’s petition, so it was not a new fact. Defendants raised sufficiency of notice in their response to plaintiff’s motion for summary judgment so no after-trial motion was necessary to preserve it. Rule requires an appellate court to enter the judgment to which defendants are entitled, so the Court of Appeals enters summary judgment for defendants.        
Mallard Pointe Lot Owners Association, Inc., Respondent, v. Thomas Flynn & Wilma Hart-Flynn, Appellants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111564

Workers’ Compensation

Death beneficiaries limited        
Statute provided a death benefit for specified survivors: spouse, children, and incapacitated spouse and children; specifies a benefit for some; and leaves for determination the benefit in “all other cases.” “[A]ll other cases” are those for whom the benefit is unspecified and does not create a further category of beneficiaries. Appellant divorced decedent before decedent’s fatal injury, and so was not a spouse, and so was not a death beneficiary.
Missouri Court of Appeals, Southern District - SD37966