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Case summaries for Dec. 2 - Dec. 8, 2022


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 | Criminal | Employment Security | Evidence | Personal Injury | Post-Conviction | Probate | Real Estate


Dues Protected from Regulation 
Courts read any regulation according to that regulation’s plain language, and an agency’s interpretation of its regulation has no weight when contrary to the regulation’s plain language. Defendant State agency amended a regulation and ended payroll deductions for plaintiff employee organization. Plaintiff asked defendant to resume the deductions, which defendant denied in a non-contested case decision, citing the regulation. The regulation’s definitions included plaintiff as a union, or an association, or both; but the regulation denied the deductions for associations that organize and bargain collectively, a fundamental right under the Missouri Constitution. The amendment does not pass strict scrutiny because its coercive character is not narrowly tailored to further a compelling governmental interest. Defendant’s “pretextual” “rationale after the fact” and other “shifting reasons” for ending deductions to plaintiff showed that the regulation, and the defendant’s use of the regulation, were a “moving target” that did not support defendant’s decision. Circuit court did not err in ordering injunctive relief from the defendant’s decision. 
Missouri Corrections Officers Association, Inc., et al. vs. Missouri Office of Administration, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84917 


Litigation Exceeded Anti-Waiver Provision 
Failure to read a contract before signing is not a defense to the enforcement of that contract, and neither the record nor the circuit court’s findings of fact support an implication of fraud, so the circuit court erred in finding no assent to arbitration. Anti-waiver provision barred waiver based on “initially agreeing to litigate a claim in court [,]” but that provision is subject to the same limitations as any other contract provision, including waiver by conduct inconsistent with that provision. Initial filings do not constitute a waiver but 17 months of litigation, before seeking to compel arbitration, does. 
Bertha Lopez, et al., Respondents, vs. GMT Auto Sales, Inc., and Prestige Financial Services, Inc., Appellants. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED110059 


Iowa Judgment Supports Res Judicata 
The law of the state entering a judgment determines the judgment’s preclusive effect. Plaintiff voluntarily dismissed a later action in Iowa, which sought the same relief against the same defendant as an earlier action in Iowa, resulting in an adjudication on the merits under Iowa law. That adjudication bars plaintiff from bringing the underlying action in Missouri for the same relief against the same defendant under res judicata. The doctrine of abatement applies only in litigation within Missouri. Writ of prohibition, barring anything but dismissal in the underlying action, made permanent.     
State of Missouri, ex rel. K2W Precision, Inc., d/b/a Keizer Aluminum Wheels, Inc., Relator, vs. The Honorable Joseph A. Rathert, Judge of the Missouri Circuit Court, Twenty-Third Judicial Circuit (Jefferson County), Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED111117


Warrantless Search Okay 
Fourth Amendment requires no warrant to search suspect’s residence for a fleeing suspect or prevent destruction of evidence. Evidence found in plain view is admissible, as is evidence discovered after that, pursuant to a search warrant based on the evidence found in plain view.   
State of Missouri vs. Jose F. Hernandez 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84601

Employment Security

No Good Cause for Late Filing
Decisions of a deputy in the Division of Employment Security are subject to administrative review by an appeals tribunal but only by filing for review within a certain time. Claimant received two decisions from a deputy on two separate matters, over three months apart, each bearing notice of the deadline. Claimant filed for administrative review of the later decision out of time. By statute, claimant may file out of time for “good cause,” which regulation defines as in good faith and reasonable under all circumstances. The Labor and Industrial Relations Commission found that it was not reasonable for claimant to think that filing for administrative review on the earlier decision constituted a filing on the later decision. Given the timing, matters decided, and notices, that finding did not constitute an abuse of discretion. Affirmed.    
CATISHA HARDEN, Claimant-Appellant vs. DIVISION OF EMPLOYMENT SECURITY, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD37435


Logical and Legal Relevance Lacking 
When “the grounds for the objection become apparent only when the answer is given [,]” an objection after the answer is timely. An out-of-court statement offered to explain later police conduct, not for the truth of the matter stated, is not hearsay. Defendant offered evidence that parent’s daily beatings of victim ceased when victim’s reports of abuse by defendant started, but defendant offered no connection between those allegations and any motivation to fabricate victim’s reports, so the evidence was too attenuated for impeachment. The circuit court did not err in excluding that evidence for lack of logical relevance. Defendant offered evidence that parent used drugs too much to care for child victim, and racked up drug debt, but such evidence was of minimal probative value and was likely to merely confuse the jury. The circuit court did not err in excluding that evidence for lack of legal relevance. Under those rulings, defendant did not have evidence that parent coached victim to support such a theory on closing argument, and the State could argue that there was no motive for victim to fabricate reports of abuse by defendant. Plain error in closing argument requires a reasonable probability that, absent the challenged statement, the verdict would have been different. No such probability arose upon the State’s reference to and out-of-court statement. No error occurred, so no cumulative error occurred. 
State of Missouri, Respondent, vs. Timothy Perkins, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109896

Personal Injury

Affirmative Converse Instruction Improper 
An affirmative converse instruction hypothesizes facts that negate the claim but are not addressed in the verdict director. The verdict director submitted the ultimate fact of defendant’s negligence, and so was not subject to an affirmative converse instruction, and the affirmative converse instruction addressed evidentiary facts, not the ultimate fact of negligence. A finding in defendant’s favor on the evidentiary facts did not negate a finding on the ultimate fact, so that affirmative converse instruction was improper and prejudiced plaintiff. 
Marsha Zerpa, A Surviving Spouse of Nicholas Zerpa, Deceased vs. XPO Logistics Freight, Inc., and Timothy Lee Chambers 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84947

Emergency Is Not an Element of Official Immunity 
Official immunity protects any public official from any action that is based on the official’s exercise of discretion without malice. That includes how a peace officer conducts a vehicular pursuit. A pursuit may or may not constitute an emergency—discretion applies either way. On a motion for summary judgment, defendant established facts showing entitlement to a favorable judgment based on official immunity, and plaintiff raised no genuine dispute as to those facts. Supreme Court makes permanent its writ of prohibition, requiring circuit court to vacate its ruling against defendant, and to enter summary judgment for defendant. 
State ex rel. Mayela Barron, Relator, vs. The Honorable John D. Beger, Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99626                           


Impeachment of Witness Is a Strategic Decision 
On a claim that counsel was ineffective in failing to impeach a witness, movant rebuts the presumption of reasonable trial strategy only by showing “that the decision was not a matter of reasonable trial strategy and such action would have provided a viable defense or changed the outcome of the trial.” Trial counsel decided not to attempt impeachment of complaining witness during second trial, after impeachment was unsuccessful at the first trial, showing a soundly strategic decision. 
Corey Gray vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84965 

Charging Instrument Sufficient for Circuit Court’s Authority 
Rule allows movant to withdraw a plea of guilty, and to set aside a conviction and sentence, on a showing of manifest injustice. Manifest injustice, on a plea of guilty, depends on whether the plea was voluntary and intelligent. The sufficiency of a charging instrument does not determine circuit court’s jurisdiction but is necessary to satisfy due process. Movant did not show that any deficiency in charges had any effect on the decision to plead guilty. And the charges by uniform citation were sufficient. 
State of Missouri, Respondent, v. Christopher J. Potter, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED110299 

Record Refutes Allegations 
A motion based on ineffective assistance of trial counsel must allege facts that describe substandard performance and are unrefuted by the record. Movant alleged that trial counsel coerced movant into testifying, but the record showed that movant intended to testify without any pressure from trial counsel, so no hearing was necessary to deny relief. 
Keith Wright, Appellant, v. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED109755 

Plea Hearing Transcript Refutes Allegations 
Among the pleading requirements for a motion are allegations describing a basis for relief, not refuted by the record, and either timely filing or a court-made excuse for late filing. Movant filed late and alleged doing so on the misadvice of counsel. That allegation is refuted by the transcript of the plea hearing, at which the circuit judge informed movant of the deadline for filing, so the circuit court did not err in dismissing the motion without an evidentiary hearing. And, even if movant’s allegation were true, it would not support an exception for third-party interference, because movant did not allege that movant did all things reasonably possible to file in time. 
JUSTIN W. LAWRENCE, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD37251


Comity Supports Dismissal of Duplicative Action 
Comity is the discretionary deference of one state’s courts to another’s. When an action in Missouri circuit court addressed the same assets for the same relief as an action filed earlier in Florida, Missouri circuit court did not err in dismissing the Missouri action. 
In the Estate of: Arnaldo Soares Barros, Deceased vs. Maria Barros, Mark Alexander Barros, and Jennifer Ann de Barros 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85107

Real Estate

Reformation of Deed Affirmed 
In an action for reformation of a deed, events after the deed’s execution are relevant to show the existence of an agreement before execution of the deed. Owners’ disregard of the corporate form supported a conclusion that owners’ corporation was merely the owners’ alter ego, which the circuit court could disregard, and reform deed to conform it to a pre-existing agreement among owners, corporation, and lender. The lender had no duty to investigate “a distinct and specific representation [,]” which the owners made to induce the lender to accept the deed of trust, because equity will not punish the lender for the owners’ false statements. False statements made in earlier judicial proceedings supported judicial estoppel to prevent an inconsistent position.   
Deutsche Bank National Trust Company, as Indenture Trustee for American Home Mortgage Investment Trust 2006-3 vs. Guillermo Luna, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84820                          

Appeal of Rent and Possession Judgment Explained 
In an action for rent and possession, tried without jury in the associate division, the judgment is subject to review exclusively by trial de novo in circuit court. Defendant’s counterclaims did not remove the action from those provisions, because the compulsory counterclaim rule does not apply to an action for rent and possession, and because defendant contested the severance of its counterclaims. The Court of Appeals therefore has no jurisdiction. Remanded for an award of attorney fees for the appeal. 
Joemo Holdings, LLC vs. Unique Creations Salon, LLC, and Adam Meisinger and Tamara Meisinger 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85113