Case summaries for Dec. 3 - Dec. 9, 2021

Appellate | Civil | Family | Real Estate

Appellate

Faulty Points Relied On
A motion in limine, alone, does not preserve error. Denial of summary judgment is not subject to appeal. The prejudice that appellant must show on appeal is that a circuit court ruling was outcome determinative, so rulings on cumulative evidence are never prejudicial. Rules governing appellate briefing require allegations of fact, with references to the record, describing the circuit court ruling challenged and how appellant preserved error. A point relied on must announce the same theory as in circuit court, and the argument in support of a point relied on cannot expand beyond the point relied on. A point relied on that challenges a ruling on a discovery motion must include respondent’s response to the motion. A point relied on challenging an evidentiary ruling is insufficient when it omits a description of the evidence at issue. A point relied on that challenges the exclusion of evidence never offered “presents nothing to review.” A point relied on that challenges more than one ruling, or offers more than one legal basis, is multifarious; and the rules bar multifarious points because each theory requires its own analysis. Appellant’s allegations of spoliation have no support in any evidence, so the circuit court did not err in denying an adverse inference. Appellant’s offers of proof on previous accidents discussed the site of the wreck, but not the manner of its occurrence, and so did not show previous accidents of a similar nature. Appellant did not show that railroad track owner’s internal policies had the force of federal law. Appellant did not show that the record supported an instruction on the timely sounding of a horn.
AMBER HALE, f/k/a AMBER KOESTER, Appellant vs. BURLINGTON NORTHERN & SANTA FE RAILWAY COMPANY, Respondent
Missouri Court of Appeals, Southern District - SD36912

Civil

No Discovery of Attorney Work Product
A statute provides that medical records are discoverable by the State Board of Registration for the Healing Arts in litigation before the Administrative Hearing Commission without regard to any privilege. That statute is within HIPAA, prevails over the physician’s duty of confidentiality, and constitutes a specific exception to the statute generally requiring the Board to have patient consent or a subpoena. Interrogatories may discover the identities of persons with knowledge of the facts, and even a witness list eventually, but the “subject and substance of [such person’s] knowledge” is attorney work product. On a writ of prohibition, when circuit court granted a preliminary writ but denied a permanent writ, the circuit court’s judgment is subject to appeal.
State of Missouri ex rel. John L. Putnam, M.D. vs. State Board of Registration for The Healing Arts and The Administrative Hearing Commission
(Overview Summary)
Missouri Court of Appeals, Western District - WD84394

Family

Compliance with Plan Discussed
“[T]ermination of parental rights is tantamount to a civil death penalty” and requires that the evidence instantly tilts the scales in favor of a basis for termination as described in the statutes. Grounds for termination include unfitness, which abuse will show, but that does not include inadequate transportation or difficulty in supervising children. Grounds for termination also include failure to rectify the conditions that brought her family within the circuit court’s authority, which appellant can avoid through compliance with a social service plan, and that “progress need not be full or substantial.” The record shows that the State ended service to appellant and her children, not appellant, so the State did not show failure to rectify. A judgment in the State’s favor must recite that the evidence showing a basis for termination is clear, cogent, and convincing.
In the Interest of: D.L.P, T.H., W.C.H., A.G.H., and R.S.M.H.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109493

Real Estate

Judgment of Unlawful Detainer Affirmed
Unlawful detainer statute does not address title, only immediate possession as against unlawful occupants, foreclosed mortgagees, and holdover employees or tenants. Respondent established that appellants were tenants, by proving that respondent let appellants occupy property in exchange for appellants’ services, even without a written lease. Statute deemed that tenancy month to month, subject to termination on one month’s notice, which respondent established by showing delivery through counsel. Appellants raised no genuine dispute as to those or any other material facts, so the circuit court did not err in granting summary judgment to respondent. Time for adverse possession does not apply to a landlord-tenant relationship because the tenancy is not adverse to the landlord.
Joe D. Brown, in his Capacity as Successor Trustee of the George E. Heard Revocable Trust, Dated February 24, 2000 vs. Douglas Lee Barnes and Kyle Barnes
(Overview Summary)
Missouri Court of Appeals, Western District - WD84279