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Case summaries for Dec. 8 - Dec. 14, 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 | Civil | Corporations and Other Entities | Criminal | Employment | Mental Health | Personal Injury | Post-Conviction | Real Estate


Substantial litigation waived arbitration
While an arbitration agreement may generally provide that only the arbitrator decides the scope of the arbitrator’s authority, waiver of arbitration is presumptively reserved to the courts. The purpose of statutes governing arbitration is to protect private resolutions on the substance of their agreement, while waiver addresses "the court’s ability to manage the litigation before it [.]” To hold otherwise would invite the movant for arbitration to delay filing until after protracted litigation. Litigation for over a year—including discovery, motion practice, case management conferences, and a jury trial setting—were inconsistent with an intention to arbitrate. The Court of Appeals affirms the circuit court’s order denying arbitration.  
GFS, II, LLC vs. Janelle Carson
(Overview Summary)
Missouri Court of Appeals, Western District - WD86185


Issues unpreserved, plain error waived
In an action for removal from the sex offender registry, appellant was a named defendant, but did not participate beyond a letter setting forth its reliance on the prosecuting attorney’s office and its position on the law. Its position on the law was that the facts made plaintiff liable for lifetime registration. But appellant’s letter did not apply any law to any facts alleged and appellant filed no motion to amend the judgment. On those facts, appellant did not preserve the issue for appeal and waived plain error review. 
Rhonda McCleery vs. Nodaway County Sheriff's Department; Missouri State Highway Patrol
(Overview Summary)
Missouri Court of Appeals, Western District - WD85665


Fraudulently procured judgment remedied
Plaintiff’s voluntary dismissal instantly makes the dismissed claim as though never filed, the circuit court loses all authority over the action, any further orders are null, and no judgment can prejudice the respondent party, so the respondent cannot appeal. Subject matter is plenary in circuit courts. Personal jurisdiction is waived unless raised before seeking affirmative relief. Jurisdictional competency is an obsolete concept repudiated long ago by Missouri’s courts. In any action in which judgment was procured by fraud, rule allows a motion to set aside within a year, but also allows a separate action in equity to collaterally attack the fraudulently procured judgment. Challenges raised in the arguments section but not in a point relied on are unpreserved.  
Amanda Everett vs. Valerie Vance and Beverley Vance
(Overview Summary)
Missouri Court of Appeals, Western District - WD85514

Plausible interpretation states a claim
On a motion to dismiss for failure to state a claim, all inferences favor plaintiff. Plaintiff insured alleged that an automobile policies’ coverage specifically included sales tax and other amounts due on the purchase of a replacement vehicle, and that defendant insurer had failed to pay those amounts. Those amounts were not covered, defendant argued, unless plaintiff paid them so, defendant argued, plaintiff stated no claim. The circuit court granted defendant’s motion to dismiss. That ruling was error because plaintiff’s interpretation of the policy—that the amounts were covered whether plaintiff paid them or not —was plausible. “The appropriate interpretation is a question of law for the circuit court to resolve in further proceedings but not on a motion to dismiss.” 
Yolanda Bell vs. Shelter General Insurance Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD85804

Corporations and Other Entities

Joint venture entails liabilities
A joint venture is a partnership limited to a specified project with mutual agencies and liabilities. The parties’ joint venture agreement showed the respective contributions of the venturers to the restoration of real property, including a loan evidenced by a promissory note, and a deed of trust as security on the promissory note. In an action to prevent foreclosure, “direct reference and/or necessary implication” linked the loan, the promissory note, and the deed of trust. Those documents satisfied the statute of frauds. Appellant was therefore liable on the promissory note without having signed the promissory note. A temporary restraining order maintained the status quo, and did not resolve the merits, and so did not constitute law of the case. 
National Historic Soul Jazz Blues Walker Foundation vs. ALTCAP, A Missouri Not for Profit Corporation, et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD86024


Traffic stop unlawfully extended, evidence excluded
Appellate review of circuit court’s ruling on a motion to suppress addresses the record from both the suppression hearing and at trial. Consistently with the United States Constitution’s Fourth Amendment, a traffic violation justifies a traffic stop, which may include a request for a driver’s license, a request for the driver to sit in the patrol car, and an inquiry as to the driver’s destination and purpose. A traffic stop also supports a canine sniff. The detention lawfully lasts until a citation is written and may last longer only if the officer develops a reasonable and articulable suspicion of further unlawful activity. Neither an outstanding warrant, nor nervous demeanor, nor refusal of consent to search show unlawful activity. There was no attempt to conceal or destroy evidence, and officers specifically discussed a delay in writing a citation to extend the detention for the arrival of a canine officer. Officers illegally searched and seized resulting evidence, which the law seeks to deter, so that evidence is subject to exclusion. Exclusion robs the State of any way to prove guilt, so the defendant is discharged. 
State of Missouri vs. Chad J. Thomas
(Overview Summary)
Missouri Court of Appeals, Western District - WD85625

Second felony murder charge okay
The State charged felony murder based on an underlying charge of hindering prosecution. The circuit court dismissed the charge of hindering prosecution, which negated a charge of felony murder, and the Court of Appeals affirmed that dismissal. The State then filed another charge of felony murder based on another underlying charge: unlawful possession of a firearm. Those later charges were not collaterally stopped by the earlier affirmed dismissal because the Court of Appeals did not address felony murder. Double jeopardy does not apply because the underlying offenses have different elements. The elements of felony murder include proximate causation between the underlying offense and a death, which depends on foreseeability. A reasonable fact-finder could find that defendant’s aid to an accomplice, evading capture while unlawfully carrying a firearm, could result in a shoot-out. The accomplice’s exit from defendant’s car and an officer’s pursuit of the accomplice were not intervening acts. 
STATE OF MISSOURI, Plaintiff-Respondent v. JOSHUA J. BROWN, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37348

Correct instructions correct misstatement of law
Defendant’s objection partially preserved error. Counsel may not attack opposing counsel, but may attack opposing counsel’s arguments, and may make rebuttal arguments in retaliation. Because the law presumes jurors to have followed the law, correct instructions cancel out misstatements of the law, so no curative instruction was necessary. Raising one objection at trial and another on appeal preserves neither. Even if defendant’s proffered instruction constituted a lesser-included offense, the circuit court did not err in rejecting it for failure to conform to Missouri Approved Instructions, specifically omitting an essential element. Plain error requires a showing of decisive effect, which defendant did not show. 
State of Missouri vs. Caleb T. Bellamy
(Overview Summary)
Missouri Court of Appeals, Western District - WD85500


Disability discrimination award affirmed
The Missouri Human Rights Act bars discrimination based on disability, and bars retaliation against protected activities. Disability means a limitation despite which, with or without accommodation, an employee can do their job. As to plaintiff employee’s ability to do his job, evidence supporting a submissible case included favorable evaluations, extra hours on weekends, and a pay raise; and evidence that accommodations to improve employee’s performance, proposed but refused, were not unreasonable. As to a protected activity, such activities included complaining about, opposing, and reporting discrimination, all of which plaintiff evidenced. Judgment affirmed but remanded for an award of attorney fees. 
Eric Qualls vs. Missouri House of Representatives and Daniel Adam Crumbliss
(Overview Summary)
Missouri Court of Appeals, Western District - WD85799

Mental Health

Parole records okay in SVP trial
In an action to determine sexually violent predator status, respondent has the right to effective counsel, which is subject to resolution on direct appeal, if discernible from the record. Respondent did not show that trial counsel was ineffective for deciding not to object to one question of one witness, and the resulting cumulative evidence was not prejudicial. Statutes provide that parole records, information, and data are confidential except in proceedings to determine sexually violent predator status.
In the Matter of the Care and Treatment of Eric Helm a/k/a Eric T. Helm a/k/a Eric Thomas Helm vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD85477

Personal Injury

Mandamus compels state legal expense fund to pay 
Plaintiff procured an award from defendant, whose liability was subject to the State Legal Expense Fund, which appellants represent. The Fund is liable for awards of damages caused by State employees in connection with official duties, even if contrary to good practice, and even if criminal. Defendant failed to tender the plaintiff’s claim to the Fund promptly but cured that failure, by having plaintiff’s first default judgment set aside, negating prejudice to the appellants. Defendant’s guilty plea in a related criminal action did not constitute a failure to cooperate. An action for declaratory judgment was available to defendant, but that did not bar an action for the writ of mandamus, which also “was appropriate here, as there was nothing remaining for Appellants to do but satisfy the judgment from the [Fund].” The rule governing the writ provides for the issuance of a preliminary writ before ruling on a permanent writ and the circuit court issued only a permanent writ. But because the permanent writ issued after pleadings, notice and hearing, and briefing, no prejudice occurred, and the failure to issue a preliminary writ did not constitute reversible error. The circuit court amended its judgment as to attorney fees after its authority, including an extension for after-trial motions, expired. The Court of Appeals reverses the amended judgment as to attorney fees and issues judgment as the circuit court should have. 
Vernell Beach, by and through his Natural Mother and Legal Guardian, Yolanda Walton vs. Kenneth Zeller, Commissioner, Office of Administration State of Missouri and Andrew Bailey, Attorney General, State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD86029


Missing witness’s testimony not shown
Movant claimed that trial counsel was ineffective for failure to call a witness in support of movant’s alibi. But movant did not show that trial counsel could have located the witness, that the witness was willing to testify, and what the witness’s testimony would have been. The circuit court did not err in denying relief. 
Xavier Perkins, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111285

Real Estate

Missouri Abandoned Housing Act discussed
Rule on substitution of parties allows the circuit court to substitute a transferor of an interest with the transferee but does not require that substitution. Therefore, the action may proceed with all parties originally named notwithstanding transfers pending appeal, and the appeal is not moot. The Missouri Abandoned Housing Act allows certain persons to take possession of certain properties for rehabilitation. The Act also allows the owner of such property to regain possession at any time, except in home rule cities, where the owner must file a motion to regain possession before rehabilitation is complete. Rehabilitation was complete on appellant’s property when she filed her motion to regain possession of her property, which was in a home rule city, and when appellant acquired title. Title was necessary for standing. Standing cannot be waived. Rule on relation back applies to amended pleadings, not standing. 
Earlene Charles vs. Oak Park Neighborhood Association
(Overview Summary)
Missouri Court of Appeals, Western District - WD85571

Possession not hostile
When evidence is uncontested, there are no findings of fact to which an appellate court must defer, and the only issue is legal. On a counterclaim to quiet title by adverse possession, claimant must show that claimant’s possession of disputed land was hostile, meaning unequivocally antagonistic to all other claims, and not in accommodation of any other claim. The record negates that element because it shows that claimant sought and received permission to use the disputed land and shared possession with neighbors. Reversed and remanded to enter judgment against claimant. 
ROGER ASH, ET UX., Appellants vs. KEVIN BEAL, ET AL., Respondents
Missouri Court of Appeals, Southern District - SD37819