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Case summaries for Dec. 9 - Dec. 15, 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 | Appellate | Business | Civil | Construction | Criminal | Criminality | Employment | Family | Juvenile | Post-Conviction | Tax


Notice of Decision to Counsel Starts Time for Appeal  
Impeachment of a city mayor before the city board of aldermen was a contested case. Statutes allow review of a contested case decision in circuit court by petition filed within 30 days from the date of delivery of notice of the decision—not the decision itself. Email to the mayor’s counsel constituted delivery to the mayor. Timely filing is a condition of circuit court’s authority. Late filing vests no authority. Without authority to decide the petition, the circuit court could only exercise its inherent power to dismiss, and not decide the merits. The circuit court’s judgment on the merits of the mayor’s petition for review is reversed with directions to dismiss.  
Darryl L. Williams, Respondent, v. City of Kinloch, and The Board of Alderman of the City of Kinloch, Appellants.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110298


Briefing Deficiencies Require Dismissal  
Rules of appellate briefing give notice of the issues to the parties, and appellate courts, and maintain appellate courts’ neutrality. Conclusory allegations of perjury and bias do not, alone, further that goal. Failure to comply with rules governing appellant’s brief related to the standard of review, statement of facts, points relied on, certificate of compliance, and appendix, render a neutral review of the issues impossible. Respondent’s motion to dismiss granted.  
Joseph B. Hutcheson, Appellant, vs. State of Missouri, Department of Social Services, Family Support Division, et al., Respondents.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110539 


Defamation Depends on Context  
A defendant without the burden of proof prevails on summary judgment by negating an element of plaintiff’s claim. On a claim for defamation, a statement is defamatory per se if it diminishes plaintiff’s reputation for business-related conduct, if the statement is false. Falsity depends on the totality of the circumstances, including context, and the context of defendant’s statement referred to an investigation for fraud, which defendant was conducting, so defendant’s statement “viewed in its entirety” was true. In an action for tortious interference with a business expectancy, the elements include defendant’s unjustified action, and improper means, to damage a business expectancy. But defendant’s action was justified by the information it received and the facts that it discovered—including plaintiff subcontractor’s improper business conduct. And defendant’s means were business-related communications with defendant’s contractor that protected defendant’s economic interests. Also, defendant had the contractual right to veto any business that plaintiff was doing with defendant’s contractor, so plaintiff had no valid expectancy of business. Injurious falsehood is a separate action but requires plaintiff to show reckless disregard for the truth or falsity of a statement, but the statement was not false, and defendant was not reckless. Having correctly concluded that defendant negated an element of plaintiff’s claims, and that no basis for plaintiff’s punitive damages remained, circuit court did not err in granting summary judgment to defendant. The Court of Appeals need not determine whether defendant established the right to a favorable decision on defendant’s affirmative defenses.  
SEMO Services, Inc., et al., Appellant, vs. BNSF Railway Company, et al., Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110326 


Joinder of Parents, Appointment of GALs, Prohibited in Agape Case  
Prohibition remedies a circuit court order made without authority and joining a party unnecessary for a just adjudication. Statutes governing residential care facilities for children allow injunctive relief to close a facility on a showing of abuse or neglect, and return resident children to their parents, or to juvenile authorities. Parents and the juvenile officer are parties only if parents are unwilling or unable to resume physical custody of a child as shown in the circuit court’s written findings. No such findings exist so no parent or juvenile authority is an indispensable party. Case law regarding parental custody does not apply. Provisions for the appointment of a guardian ad litem for any child from another jurisdiction, placed in such facility by a legal authority, do not apply without showing that any such child is in the subject facility; so circuit court had no authority to appoint any guardian ad litem for any such child. Court of Appeals makes permanent its preliminary writ requiring circuit court to vacate its order.  
STATE OF MISSOURI ex rel. ERIC SCHMITT, Relator v. THE HONORABLE THOMAS PYLE, Cedar County Associate Circuit Judge, Respondent  
Missouri Court of Appeals, Southern District - SD37760 


Calculation of Damages by Total Cost Method Rejected  
Under Kansas law, the elements of a claim for breach of contract include damages, which plaintiff must prove to a reasonable certainty. Reasonable certainty does not include the total cost method—the difference between claimant’s bid and claimant’s costs—because that method assumes that claimant’s bid was reasonable, and that defendant alone caused every loss, and is thus “prone to” awarding a windfall. In an action to enforce a mechanic’s lien, plaintiff must present a just and true account, but appellant offered no documentation to show whether hours were worked on the original contract or on change orders, and claimed hours unknown to and unapproved by defendant. In contrast, no evidence is needed to support a judgment for a defendant who had no burden of proof. Under Kansas law, the parties’ agreement supports an award of attorney fees and the parties’ agreement mandated such an award to the prevailing party, so the circuit court abused its discretion in denying that award. Remanded to calculate and order an award of attorney fees.  
Rand Construction Company vs. Caravan Ingredients, Inc., D/B/A Corbion F/K/A CJ Patterson Company  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84933 and WD84959 


Taking Victim’s Phone Showed Felony Tampering with Evidence  
Appellant did not show that courtroom was inaccessible during voir dire. “The only two people who claim to have been excluded from the courtroom never tried to open the courtroom doors.” A venire person, who expressed confusion about why defendant would not testify if innocent, was rehabilitated with unequivocal promises to follow instructions and presume innocence unless the State proved guilt. When a witness referred to a career criminal squad, the defense waived an objection by not making it right away and, even if preserved, no error occurred in overruling the objection, because the State did not cite any prior criminal act. Acquittal on felony stealing did not bar an instruction on misdemeanor stealing. On a charge of felony tampering with physical evidence, a finding of guilt had support in evidence that appellant took victim’s phone, and that phone records showed victim’s phone would have yielded an abundance of information. Court of Appeals corrects the written sentence to reflect the sentence as spoken in open court, removing any reference to an aggravated sexual offense from appellant’s conviction.  
State of Missouri vs. Cedrick Oliver Russell  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84644             

Dismissal of Charges Enforces Plea Bargain and Sanctions Abuse  
In an earlier action, defendant agreed to plead guilty to a charge and serve time for it, and work with the State against other defendants for five years. Even if that agreement were ambiguous, the ambiguity would weigh against the State, because the defendant’s guilty plea must be knowing and intelligent. But the circuit court found the State bargained away all charges other than as specified, which is “a factual finding to which [appellate courts] defer.” That finding supported dismissal of the bargained-away charges with prejudice. Dismissal with prejudice to sanction an abuse of the judicial process, like the State’s re-filing of charges without showing that defendant had broken his agreement, had support in the courts’ inherent power. But dismissal with prejudice as a sanction effectively ends the plea bargain before its term. Therefore, the Court of Appeals orders the circuit court to modify its judgment to make the dismissal of charges based on the other occurrence without prejudice.  
State of Missouri vs. Semaj Harris  
(Overview Summary)  
Missouri Court of Appeals, Western District – WD84640 

JNOV of Acquittal Reversed  
“[I]t is not necessary for the officer to specifically say, ‘you are under arrest,’ when the circumstances indicate the officer is attempting an arrest.” Evidence supporting a jury’s finding, that peace officers were attempting an arrest, included defendant’s flight while officers checked for arrest warrants and officer’s repeated commands for defendant to stop. When a circuit judge issues a judgment of acquittal notwithstanding the verdict, reversal of that judgment does not constitute double jeopardy, because a jury did not acquit the defendant—the jury found defendant guilty. Court of Appeals remands to circuit court for vacatur of judgment, application of the jury’s verdict, and sentencing.    
STATE OF MISSOURI, Plaintiff-Appellant v. SAMUEL ALLEN MEADOR, Defendant-Respondent  
Missouri Court of Appeals, Southern District - SD37297             


Case on Rendering Judgment Versus Entering Judgment Transferred  
Circuit court did not plainly err in admitting expert testimony on delayed reporting by child victims of sexual abuse generally. Rule sets a deadline by which to file a motion for new trial, and allows an extension, but appellant’s amended motion for new trial was filed beyond the deadline even as extended, and so is a nullity. And, even if preserved, appellant’s amended motion for new trial sought relief based on newly discovered evidence, but only offered impeachment and left a determination of credibility for the jury. On the jury’s verdict of guilty, the circuit court pronounced and imposed sentence, but did not enter a written version of the judgment until much later. Statute and rules start the time for appeal of a criminal judgment when “final judgment is rendered” or with “rendition” of a final judgment. A final judgment is a judgment that disposes of all issues; in a criminal case, the imposition and pronouncement of sentence. Pronouncement of sentence must, by rule, occur in the defendant’s presence, so that judicial act by a circuit judge constitutes the event that starts the time for filing a notice of appeal. Rule and statute also require an entry of a written judgment into the record, but that is the circuit clerk’s ministerial act, which does not affect the judgment’s effect or the time for filing a notice of appeal. The absence of a written judgment does not affect an appellate court’s authority but is cause for dismissal. Dismissal of appellant’s appeal is not required because a document constituting a written final judgment, though drafted late, appears in the legal file. Transferred.  
State of Missouri vs. Jarrad Ryan Vandergrift  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD84462             


Racist Emblems Contributed to Hostile Work Environment  
Statutes require employer to issue a service letter to a departing employee within a certain time, and the evidence supported a finding that employer failed to do so, and an inference of bad intent supporting punitive damages. Under the Human Rights Act, a petition states a claim without employing the terms “harassment” and “hostile work environment,” if the petition’s allegations give the defendant notice of the claim.  The Act provided employer liability for damages to an employee. Amendments altered the standard for, and the amount of, liability. Liability depended on how much of a factor the employee’s race was in causing the injury: pre-amendment, contributing; post-amendment, motivating. Post-amendment statutes also capped damages. The applicable standard depends on when “sufficient significant incidents occurred.” The evidence supporting application of pre-amendment law included pre-amendment workplace displays of Confederate flags, Ku Klux Klan emblems, and swastikas in the workplace.  
Sherice Renee Miller-Weaver vs. Dieomatic Incorporated, d/b/a LMV Automotive Systems  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85078


Judgment Debt Lapsed  
A judgment dissolved the parties’ marriage and awarded appellant a part of the proceeds from sale of a residence. That order created a judgment debt or money award even though the amount was not readily ascertainable. Statute provides that, unless revived, judgment debts and money awards are deemed satisfied ten years after rendition. Eleven years after rendition of judgment the sale occurred; and no revival of the judgment ever occurred, so circuit court did not err in denying appellant’s motion for contempt and an equitable remedy.    
Phillip G. Gillespie vs. Elizabeth M. Gillespie  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85159

Business Acquired through Other Entities Was Marital Property  
In an action for dissolution of marriage, statutes require a division of marital property, which all acquisitions during marriage are presumed to be; with exceptions only as specified by statute, and supported by clear and convincing evidence, as separate property. Separate property includes property acquired in exchange for separate property, but the record negated that exception for appellant’s acquisition of a business, which appellant paid for by assumption of debt—a marital obligation. “[Appellant]'s willingness to burden the marriage with additional debt in partial consideration for acquisition of the 50 percent interest held by [seller] in [the business] is inconsistent with [appellant]'s contention that said interest was exclusively acquired with nonmarital property.” Circuit court’s finding, that appellant acquired ownership of a business during the marriage individually, albeit through a series of related transactions among other entities, had support in the record. Because the acquisition was marital property, the increase in its value was also marital property.  
Sandra Kaderly vs. Kevin Kaderly  
(Overview Summary)  
Missouri Court of Appeals, Western District – WD84855


Certification for Circuit Court Affirmed  
Statutes provide that circuit court’s juvenile division may certify a juvenile for trial in circuit court after hearing on consideration of specified factors. The hearing is not adjudicatory and includes a report from the juvenile officer, and may include testimony from the juvenile officer, though both include hearsay. An expert opinion is admissible, and appellant suffered no prejudice from its entry into the record, because other evidence supported certification.  
In the Interest of: D.M.M.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District – ED110157 


Untimely Filing of Amended Motion Requires Abandonment Inquiry  
Rules calculate the deadline for filing an amended motion from the appointment of counsel, which occurred as to both of two concurrently pending duplicate motions, and the consolidation of those files did not alter the deadlines that followed. Rules authorize an extension of time to file an amended motion until the deadline passes but not after, and the circuit court granted an extension after the deadline passed, so that extension was ineffective. Untimely filing requires an inquiry into abandonment so the Court of Appeals remands for that purpose.     
John Brewer, Appellant, vs. State of Missouri, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110321 


License Tax on Sale of VOIP Service Okay  
Declaratory Judgment Act provided authority in circuit court for political subdivisions to determine the effect of their ordinances, not only for declaratory relief, but injunctive relief also. Political subdivisions imposed their license taxes on the retail sale of telephone services by any seller at retail. The enabling statute included St. Louis County when St. Louis County passed its ordinance, and later changes to constitutional and statutory provisions did not retroactively nullify that ordinance. The tax’s levy included revenue from the sale of voice over internet protocol because that technology functions just like common telephone technology, according to appellant’s “representations both to the court and to the consuming public [,]” and to the Public Service Commission. Neither federal legislation, nor expert testimony on the meaning of “interexchange telephone services,” defines “telephone service” or “exchange telephone service.” Political subdivisions may tax all retail seller’s revenue including revenue generated outside their borders, and retailers failed to identify any amounts exempt under the taxing provisions.    
Collector of Winchester, Missouri, and City of Winchester, Missouri, Respondents, vs. Charter Communications, Inc., and Charter Communications, LLC, Defendants, and Charter Fiberlink-Missouri, LLC, and Charter Advanced Services (MO), LLC, Appellants.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED109513