Case summaries for Dec. 4 - Dec. 10

Appellate | Construction | Criminal | DWI | Insurance | Personal Injury | Post-Conviction | Probate | Real Estate | Schools
 

Appellate

Deficiencies in Appellant’s Brief Require Dismissal
“[T]he most serious deficiencies in [appellant]’s brief” include the following. The points relied on depart from the template prescribed by rule and are multifarious. The statement of facts includes argument matters irrelevant to appellant’s points. The argument conflates distinct standards of review and fails to offer prejudice requiring reversal. Appeal dismissed.
In Re the Marriage of KAREN BLANCHARD and LESTER BLANCHARD KAREN BLANCHARD, Petitioner-Appellant vs. LESTER BLANCHARD, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36521

Motion to Dismiss as Moot Granted
In an action for unlawful detainer, defendant appellant moots the appeal by voluntarily vacating the contested premises, before issuance of an execution warrant, without posting a supersedeas bond. Those events constitute acquiescence with the circuit court’s judgment, and have occurred, according to the record in circuit court and the parties’ representations on appeal. Therefore, the Court of Appeals concludes that the appeal is moot and grants respondents’ motion to dismiss.
WEST PLAINS REGIONAL ANIMAL SHELTER, Plaintiff-Respondent vs. WILLARD SCHNURBUSCH, Defendant-Appellant and CAROL SCHNURBUSCH, Defendant
Missouri Court of Appeals, Southern District - SD36781

Construction

Mechanics' Lien, No; Quantum Meruit Maybe
In an action to enforce a mechanic’s lien, statute provides that the elements include “a just and true account of the demand due . . . after all just credits [,]” and just credits included a credit for work not performed. Therefore, on a motion for summary judgment, showing an omitted credit for work not performed negated an element of the claim for enforcement of a mechanics’ lien. Summary judgment against subcontractor appellant’s mechanics' lien claim affirmed. But “the mechanics’ lien statute is not an exclusive remedy; a plaintiff may pursue both a mechanics’ lien and a quantum meruit remedy.” On appellant’s quantum meruit claim, circuit court relied on arguments applicable to a contract, for which the supporting facts are irrelevant to quantum meruit. Respondent contractor failed to negate the element of inequity because respondent failed to show, even by inference, full payment to its general contractor.
Almat Builders and Remodeling, Inc., Appellant, v. Midwest Lodging, LLC, and Montgomery Bank, N.A., and Shrinay Construction, LLC, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108784

Criminal

Conviction for Resisting a Stop Affirmed
The elements of resisting a stop by fleeing include that defendant “knows or reasonably should know that a law enforcement officer is . . . attempting to lawfully . . . stop [a] vehicle,” but do not include defendant’s knowledge of the reason for the stop. Instructions required include defendant’s knowledge of the reason for the stop, but that increased the State’s burden, not defendant’s, so no prejudice occurred.
STATE OF MISSOURI, Plaintiff-Respondent v. KURTIS EDWARD AUSTIN, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36469

State’s Appeal of Inconsistent Verdicts Barred
Statute bars the State from appealing a final verdict where the appeal would result in double jeopardy, which includes a second prosecution for the same offense after either acquittal or conviction. Both would result from retrial of a final judgment on inconsistent verdicts of guilty and not guilty. Appeal dismissed.    
State of Missouri vs. Dorsey Jacob Basnight
(Overview Summary)
Missouri Court of Appeals, Western District - WD83394

No Prejudice from Inadmissible Evidence in Bench Trial
Prior consistent statements beyond the scope of impeachment were inadmissible. But the purpose of those rules is to protect jurors from “matters [that] might tend to confuse them or mislead them from a consideration of the real question in issue” so, in a bench trial, appellant must show that the judgment relies on inadmissible evidence. Appellant did not make that showing when other, admissible, evidence supported the conviction.
State of Missouri vs. Arthur Norman
(Overview Summary)
Missouri Court of Appeals, Western District - WD83350

Evidence of Victim on Methamphetamine Excluded
Appellant did not show any prejudice from the exclusion of evidence that victim was intoxicated on methamphetamine, because the circuit court admitted evidence of victim’s violence, and why the victim was violent was irrelevant. Appellant did not show plain error in the denial of an instruction which stated that he tried to withdraw from the victim because self-defense instruction was sufficient. Appellant did not show plain error in the omission of a cross reference from the verdict director for first-degree assault to the instruction for self-defense, as required by approved instructions, because both parties’ arguments established that link.
STATE OF MISSOURI, Plaintiff-Respondent vs. BRADLEY DOUGLAS COOK, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36543

DWI

Probable Cause Shown
Case law describing probable cause to stop a driver for an alcohol-related offense has no analytical value when challenging probable cause to arrest driver already stopped. Totality of the circumstances constituting probable cause to arrest driver included smell of intoxicants, bloodshot eyes, admission of drinking and leaving the scene of an accident, contradictory descriptions of the accident’s location, uncertain balance, and slurred speech. Argument that relies on evidence and inferences contrary to the judgment, and ignoring evidence supporting the judgment appealed, has no analytical value in an appellate court. Remanded to correct clerical error, from finding of guilt on plea of guilty to finding of guilt after trial, nunc pro tunc.
STATE OF MISSOURI, Respondent vs. GREGORY HENSLEY, Appellant
Missouri Court of Appeals, Southern District - SD36489

Insurance

Choice of Law Thwarts Summary Judgment
Automobile policy included a choice of law provision designating Kansas law, except events occurring outside Kansas, which includes insured’s cross-claim for bad faith refusal to settle. Absent a controlling contract provision, the choice of law is subject to the most significant relationship test. Under that test, the material facts include “when the injury occurred, and where [insured] resided at the time of the injury [,]” and those facts remain genuinely in dispute. Therefore, the circuit court erred in granting summary judgment.  
Allstate Fire and Casualty Insurance Company vs. Philip Stratman
(Overview Summary)
Missouri Court of Appeals, Western District - WD83564

Personal Injury

No Affidavit of Merit Needed
Statute requires that a petition for damages against a health care provider must include an expert’s affidavit, attesting to the merits of the action, but only when the petition alleges health care malpractice. Appellant’s petition alleged only that a “security guard ‘violently assaulted, battered, attacked and restrained’ [a]ppellant [.]” Therefore, appellant’s petition need not include the affidavit of merit, and circuit court erred in dismissing the petition for lack of that affidavit. Reversed and remanded for further proceedings.
GEORGE J. BUCKLES, Plaintiff-Appellant vs. THE SKAGGS COMMUNITY HEALTH ASSOCIATION D/B/A COX MEDICAL CENTER, BRANSON, and JOHN DOE and JOHN DOE CO., Defendants-Respondents
Missouri Court of Appeals, Southern District - SD36739

Post-Conviction

No Relief from Ineffective Assistance of Probation Revocation Counsel
Circuit court’s authority to revoke probation is subject to challenge by habeas corpus, not by post-conviction relief on a charge of ineffective assistance of counsel, even when the allegation is failure to investigate circuit court’s authority. When movant claims that movant’s guilty plea was the result of ineffective assistance of plea counsel, movant must show that movant would have proceeded to trial but for counsel’s ineffective assistance. Movant failed even to allege those facts and so was entitled to no hearing before denial of the motion.
Myron Phillips Williams, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108531

Probate

Interlocutory Appeal of Safe Harbor Ruling Discussed
Probate statutes allow a motion—a safe harbor motion—to determine whether a contemplated filing will trigger a no-contest clause, and provide for interlocutory appeal of a ruling on that motion. Appellant filed a safe harbor motion, but the order appealed did not rule on that motion, it ruled on reconsideration of a safe harbor claim in an earlier petition that appellant superseded with a later petition. Appeal dismissed.
Julie Ann Thomas, Appellant vs. Kurt E H'Doubler, Individually and as Trustee of the F.T. H'Doubler, Jr. Revocable Trust dated May 2, 2000, and the Francis T. H'Doubler Jr., Family Trust created thereunder, and as Co-Trustee of the F.T. H'Doubler, Jr. Irrevocable Trust dated May 1, 2000, and the Julie Ann Thomas Trust created thereunder, and as Trustee of the Joan L. H'Doubler Irrevocable Trust dated December 28, 1982, and the Trust for the benefit of Julie Thomas and the Credit Shelter Trust created thereunder, Sarah Ellen Meugge, Estate of Scott Wesley H'Doubler, Brian Meugge, individually and as next friend of Simon F. Muegge and Benjamin W. Muegge, Beth Mcgee, individually and as next friend of Rivers C. Mcgee and Emmett Mcgee, Todd H'Doubler, Sally H'Doubler, Laurie Thomas, Becky Thomas, Colleen T. Walton, individually and as Co-Guardian of the person of Marie H'Doubler and Co-Conservator of the Estate of Marie H'Doubler, Gary T. Walton, Sr., in his capacity as Co-Guardian of the person of Marie H'Doubler and Co-Conservator of the Estate of Marie H'Doubler, Rick Steven Denney, Respondents
Missouri Court of Appeals, Southern District - SD36494

Real Estate

Road Maintenance Statute Construed
Statute that governs an action to establish a maintenance plan for a private road is “challenging to read and interpret” because it uses “terms which are widely varying and undefined” in “a single sentence, containing over 130 words, with potentially five different clauses separated by commas, with additional conditions within those clauses [.]” The elements of an action to establish a maintenance plan for a private road include the absence of an existing plan, recorded or imposed by covenant, applicable to all landowners whom the road benefits. Such facts were described in the count that the circuit court dismissed, so the circuit court erred in dismissing that count for failing to state a claim. Respondent was the sole defendant remaining in that count so, when circuit court dismissed that count, no claims against respondent remained, making that dismissal eligible for certification to appeal. Certification was also appropriate.
David Maue, Appellant, vs. Fiedler Acres Subdivision, et al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108696

Schools

Anti-Vax Attendance Procedure Explained
For any child to attend charter school, statutes and regulations require either vaccinations or an exception, including a standard religious objection form on file, but children had neither. Lack of vaccination and a religious exception form does not constitute discipline for which the statutes require due process protections equivalent to a contested case including trial de novo. Constitutional objections raised in a petition for a temporary restraining order, but not in response to a motion to dismiss appellants’ petition, are unpreserved and Court of Appeals declines plain error review. Claims from an earlier-filed action, still pending in circuit court, are the same as points in the instant appeal from a later action; those points transgress the doctrine against splitting a claim, so the Court of Appeals dismisses those points. Court of Appeals also dismisses points for which necessary parties are absent. School did not err in barring children from school and circuit court did not err in dismissing appellants’ petition for review de novo.
G.B., J.B., and W.B., et al vs. Crossroads Academy-Central Street
(Overview Summary)
Missouri Court of Appeals, Western District - WD83756