Case summaries for Dec. 6-12, 2024

Administrative | Attorneys | Criminal | Family | Insurance | Personal injury | Post-conviction | Real estate

Administrative

No collateral attacks on agency decisions 
An agency’s denial of any relief sought in an earlier action constituted prejudice that allowed an appeal of that administrative decision, and failure to appeal the decision rendered any challenge a forbidden collateral attack. Statutes allowed a licensing agency to impose additional discipline by later action after hearing. The hearing requirement made the action a contested case. Judicial review of a contested case was on the record made in the contested case under a standard prescribed by constitutional provisions. The evidence supported a finding that the licensee had violated probationary provisions and supported additional discipline. Whether other provisions in a decision, not cited in support of discipline, were lawful was irrelevant because such provisions did not cause any prejudice. The Missouri Court of Appeals affirmed the agency’s decision. 
(Overview summary) 
Kenya Walzer vs. Missouri Board of Nursing 
Missouri Court of Appeals-Western District – WD87131

Attorneys 

Year suspension for pay-per-lead and cover-up 
The respondent paid an unregistered referral service and lied about it to investigators from the Office of the Chief Disciplinary Counsel. That conduct violated rules governing the use of referral services, the supervision of non-lawyer assistants, false statements in a disciplinary matter, professional misconduct, and prejudicing the administration of justice. Those violations supported disbarment but mitigating factors supported a reduction of discipline, so the Supreme Court of Missouri ordered suspension from the practice of law with no leave to apply for re-admission for one year. 
(Overview summary) 
In re: Todd N. Agron, Respondent. 
Supreme Court of Missouri - SC100543

Criminal

Opening statement cured 
“[T]he primary purpose of an opening statement is to inform the judge and jury of the general nature of the case, so they may appreciate the significance of the evidence as it is presented[.]” The state’s opening statement did not recite the county in which the charged offenses occurred, but the defendant alleged no prejudice, and the state cured the deficiency with an embellished opening statement. Whether the state recited that the charged offenses occurred in Missouri, the defense did not make part of its objection, and so waived any error. The Missouri Court of Appeals affirmed the conviction. 
STATE OF MISSOURI, Plaintiff-Respondent v. DAVID MARTIN EUGENE HOOD, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38326

Family

Grandparent lacked standing to seek visitation 
In an action for guardianship, one statutory subsection set forth factors for ruling, but the circuit court applied factors for ruling on custody. The Missouri Court of Appeals remanded the action to apply the correct factors to claims for co-guardianship and co-conservatorship. The circuit court also awarded visitation to a grandparent. Grandparents had standing to move for visitation only as the statutes provided: when denied reasonable visitation for a prescribed period, with one of several other specified facts. The movant did not show either element. The Court of Appeals reversed the judgment as to granting visitation. 
(Overview summary) 
In the Matter of: G.H., 
Missouri Court of Appeals-Eastern District – ED112324

Insurance

Limits of liability language provided gap coverage 
Only a reasonable alternative construction of a policy’s plain language resulted in ambiguity. For underinsured motorist coverage in plaintiff insured’s automobile policy, the Declarations’ “Per Person” limit and the endorsement’s “Each Person” limit referred to the same amount, a blank space in the endorsement notwithstanding. The endorsement plainly stated that payments that the insured received from other sources reduced the benefit from the underinsured liability limit. That coverage complied with the statutory minimums. The circuit court erred in entering summary judgment for the plaintiff insured, so the Missouri Court of Appeals reversed and remanded, with directions to enter summary judgment for the defendant insurer. 
(Overview summary) 
Linda McCarty vs. Shelter Mutual Insurance Company 
Missouri Court of Appeals-Western District – WD87167

Personal injury

Equine liability act applied 
The statutes that constituted the Equine Liability Act codified common law assumption of the risk doctrines and immunized equine activity sponsors and professionals from any equine activity participant’s suit based on “the inherent risks of the activity[.]” The action was within that description, because the defendant nonprofit organization boarded horses, the activity in which the plaintiff volunteer was participating when injured. A document offered to show that the defendant enhanced a risk was unauthenticated hearsay, inadmissible on summary judgment, and was not probative. The circuit court did not err in granting summary judgment to the defendant equine facility and the Missouri Court of Appeals affirmed the judgment. 
(Overview summary) 
Cristina Raybourn vs. Changing Leads Equine Rescue; Woodson Hill Equestrian Center, LLC 
Missouri Court of Appeals-Western District – WD86708

FELA approved instruction okay 
The defendant preserved its objection to an instruction by objecting during the instruction conference and including the instruction in a motion for new trial, and no motion for directed verdict was necessary. The submitted verdict director proffered alternative causations in the disjunctive for the plaintiff’s fall from a locomotive: large armholes on a safety vest snagged on a handrail along a narrow exit. Supporting evidence was necessary for each alternative and each alternative had support in the same evidence. The approved instruction was presumptively correct and listed “reasonably safe conditions for work” like the submitted instruction, and so did not constitute a roving commission. The circuit court did not err in refusing a proffered withdrawal instruction for the locomotive’s design defects because the plaintiff offered no such evidence. 
(Overview summary) 
Douglas Overfield, Respondent, v. BNSF Railway Company, Appellant. 
Missouri Court of Appeals-Eastern District – ED112272

Post-conviction

No prejudice alleged 
On a claim of ineffective assistance of counsel, the elements included substandard performance and resulting prejudice. Prejudice on a guilty plea meant that, but for the plea counsel’s substandard practice, the movant would not have entered a guilty plea. No such allegation appeared in the amended motion. “[M]ovant’s claim does not fail because his amended motion omitted particular words; it fails because he did not include any words indicating that his decision to plead guilty would have been different had counsel investigated the self-defense witnesses.” The circuit court did not err in dismissing the action without an evidentiary hearing. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary) 
Raymond F. Garcia, Appellant, vs. State of Missouri, Respondent. 
Missouri Court of Appeals-Eastern District – ED112359

Credibility determined outcome 
The movant claimed that the plea counsel promised the movant a diversion program for a guilty plea. But, at the plea hearing, the movant said that the movant received no promises, knew the possible sentences, and knew that the sentence was in the circuit court’s discretion. And the circuit court was entitled to believe the plea counsel’s testimony that the plea counsel made no such promise to the movant. 
(Overview summary) 
Marlo R. James, Appellant, vs. State of Missouri, Respondent. 
Missouri Court of Appeals-Eastern District – ED111919

Real estate

Ejectment explained 
The burden of proof included the burden of production and the burden of persuasion. The burden of production required evidence that satisfied each element, if the finder of fact believed that evidence. Getting the finder of fact to believe it was the burden of persuasion. In an action for ejectment, the plaintiff had the burden of proof. The elements were that the defendant was in possession of property to which the plaintiff had a right to possession. Title was not, alone, conclusive proof of the superior right to possession. The record showed that the defendant had possession of the property but was named only as a beneficiary on a beneficiary deed, which listed the plaintiff as owner. But the record also showed that the defendant signed the purchase money promissory note for the property and made the payments on the note, and that the parties intended that the defendant appear on a general warranty deed. “These facts might entitle Defendant to have the deed reformed.” The circuit court’s conclusion that the plaintiff had not carried the burden of proving a superior right of possession was not a misapplication of the law. Whether the weight of the evidence was against the judgment for the defendant, the Missouri Court of Appeals did not decide because the plaintiff’s analysis was faulty. 
DEBRA WAX, Plaintiff-Appellant v. SARAH VICKERS, Defendant-Respondent 
Missouri Court of Appeals-Southern District – SD38370

Single-family dwelling restriction not waived 
The totality of the circumstances, including the language of the transfer document and the parties’ conduct after the transfer, showed that the developer and its successor intended to assign the developer’s rights to the successor. Restrictive covenants limited development to single family residences and to show waiver, proof was necessary of an intent to abandon the restrictions’ plan. No such intent appeared in successors’ inchoate plan for a non-conforming use, building a utility building on one lot, allowing hunting on lots, a successor’s re-branding and commercial events, or slow pace of development. And, even if those events were probative of intent to abandon the plan, the restrictions negated any waiver by providing that “’[f]ailure or forbearance to enforce any covenant or restriction shall not be deemed a waiver of the right to do so thereafter’, ‘[n]or shall the failure to enforce a covenant or agreement herein act as a waiver or prohibit the enforcement of same in the future.’” A purchaser of lots relied on the plat showing a lake as common ground, so promissory estoppel barred a later-formed homeowner’s association from transferring the lake from common status. “[W]hen lot owners were ‘sold on the promise’ of certain common ground based on a subdivision plat, it is contrary to public policy to permit a developer to unilaterally alter the character of that common ground, even if the developer retains such authority through covenants.” No abuse of discretion occurred in the circuit court’s award of partial attorney fees. 
(Overview summary) 
Millstone Property Owners Association, Respondent/Cross-Appellant, vs. Nithyananda Dhyanapeetam of St. Louis, Appellant/Cross-Respondent, Fogarty Farms, Respondent/Cross-Appellant. 
Supreme Court of Missouri - SC100574