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Case summaries for Dec. 10 - Dec. 16, 2021


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.

AdministrativeAppellate | Civil | Criminal | Elections | EmploymentEvidence | Family | Personal Injury | Post-Conviction | Real Estate


Decision on Litigation Expenses Not Final
The State’s Medicaid agency, and the Administrative Hearing Commission on review, denied payment to a Medicaid provider. The provider filed a petition in circuit court for review of the Commission’s decision, with a prayer for interest on the denied payments, and an award of litigation expenses. The grounds for denial was a statute, later held unconstitutional by the Supreme Court of Missouri, for violating the Missouri Constitution’s single-subject provision, so the circuit court remanded the case to the Commission. That judgment leaves almost all issues unresolved among the parties, so it is not ripe for appeal. The Court of Appeals has previously “sagely noted that the Commission must be allowed to complete its work before it may be reviewed on appeal. The same is true here.” Appeal dismissed. 
Planned Parenthood of St. Louis Region, et al., Respondents, vs. Missouri Department of Social Services, et al., Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109654


Record Necessary to Show Insufficient Evidence
Appellant challenged a judgment for lack of sufficient evidence but failed, even after the Court of Appeals’ invitation to file the relevant exhibits late, to produce those exhibits. “We are deeply troubled by counsel’s failure to respond in any fashion to this Court’s ... invitation to supplement the record, ... resulting in their client’s forfeiture of his right to appellate review.” Appeal dismissed.
State of Missouri vs. Anthony L. McKnight
(Overview Summary)
Missouri Court of Appeals, Western District - WD82658

Briefing Deficiencies Require Dismissal
Rules governing format for appellant’s brief are mandates and, when departure from those mandates thwart comprehension of appellant’s argument, the Court of Appeals will not construct an argument for appellant. Points relied on must address the legal basis for reversal. Arguments must state how appellant preserved error, set forth the standard of review, and cite authority for reversal on the facts. 
Sofia Murphree, Individually and as Next Friend of Breanna Murphree-Dasch, a Minor, Appellants, v. Lakeshore Estates, LLC, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109644


No Good Cause to Set Aside Default Judgment 
Rule provides that the elements of setting aside a default judgment include good cause, which includes neglect but not recklessness, and proper service of summons and petition supported a finding of recklessness in failure to file a response. Those findings receive deference on appeal.
Daniel Yee, Personal Representative of the Estate of Thic Lem Toy vs. Sammy Choi, Seto Choi, and Wing Choi
(Overview Summary)
Missouri Court of Appeals, Western District - WD84229


Amended Statute Does Not Increase Eligibility for Parole
Statute applicable to appellant’s sentence mandated that appellant’s sentence include a restriction on eligibility for parole. A later amendment did not change appellant’s eligibility for parole because the amendment addressed only the immediately earlier version of the statute, not the version applicable to appellant’s sentence, and a statutory amendment cannot change a judgment.  
Donald Johnson vs. Missouri Department of Corrections
(Overview Summary)
Missouri Court of Appeals, Western District - WD84335

Forfeiture of Bond Stands
On forfeiture of bond, rule allows reversal upon equitable considerations. State’s stipulation of no prejudice was not in the record for circuit court’s ruling. The length of defendant’s absence, before and after judgment of forfeiture, shows that the circuit court did not abuse its discretion in denying a set-aside of forfeiture.
State of Missouri vs. David Haley
(Overview Summary)
Missouri Court of Appeals, Western District - WD84093

No Review of Evidentiary Rulings 
Stating “no objection” to evidence waives all review of that evidence’s admissibility. Admitting evidence only for discussion on a motion to suppress, but not into the record, is not subject to appeal. On a challenge to denial of a motion to suppress, the point relied on determines the items of evidence at issue by its specific description, because to determine which other items were subject to suppression would make the appellate court the appellant’s advocate. An objection to a line-up identification at trial, based in inability to observe, does not preserve an objection on appeal based on impermissibly suggestive line-up process.
Missouri Court of Appeals, Southern District - SD36867

No Financial Investigation Necessary Before Initial Warrant Issues
Rule provided that the factors in setting bail on an initial warrant include information already available when the applicant drafts a warrant application, which might—but need not—include the ability to bond out. Applicant did not offer any evidence of his ability to pay at any hearing on his confinement, and no words require the prosecution or the circuit court to undertake an investigation into that matter. “[T]he public-interest exception to the mootness doctrine applies because the issue raised has general public interest and importance, and is likely to recur while otherwise evading appellate review.”
Cordell Nichols, Jr., Appellant, vs. Thomas McCarthy, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109897


Campaign Finance Reporting Requirements Discussed
Statutes governing continuing committees’ funds do not restrict liability to committee personnel, and the Missouri Ethics Commission did show that respondent violated restrictions on how to access funds, but did not show that respondent used funds for improper purposes. Remanded to the Missouri Ethics Commission to re-assess a penalty accordingly.
Missouri Ethics Commission vs. Philip Levota
(Overview Summary)
Missouri Court of Appeals, Western District - WD84233


Employer Includes Co-Workers Under Whistleblower’s Protection Act 
On a motion to dismiss for failure to state a claim, a court assumes, for the motion, that the petition’s allegations are true. Whistleblower’s Protection Act codified common law’s public policy exception to employment at will. That exception included protection for an employee reporting violations of law by an employer, who necessarily acts through employees, so a petition alleging that plaintiff reported co-worker’s theft described plaintiff as a protected person. The Act shows no sign of limiting those common law protections. Therefore, circuit court is dismissing the petition. 
Jimmy Yount, Appellant, vs. Keller Motors, Inc., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109503


Age a Factor in Determining an Excited Utterance 
Victim’s statement was within the excited utterance exception to the rule barring hearsay, in that it “was made spontaneously rather than in response to questions [; and was] not self-serving [because the v]ictim, a three-year-old child, was not attempting to get anything out of the situation other than help.” “Under these circumstances, the [v]ictim’s age, three years old, is also a consideration with respect to the influence of his emotions, the excitement of his statements, and his lack of deliberation in making the statements. It is without doubt that at that moment and under such circumstances, [v]ictim was under the immediate and uncontrolled domination of his senses.”  Appellant’s statements and other behaviors, including viewing pornography, supported a finding that appellant “touched [v]ictim for the purpose of arousing or gratifying [a] sexual desire.”
In the Interest of: T.R.T. vs. Juvenile Officer
(Overview Summary)
Missouri Court of Appeals, Western District - WD84167


Contempt Order and Attorney Fee Award Affirmed
A judgment was not unenforceable for vagueness when it ordered child support “limited in cost and time by the in-state tuition and room and board rates of the University of Missouri for five years.” Statute, continuing child support during post-secondary education, requires enrollment for a minimum number of hours, but provides an exception for a child with developmental disabilities, as shown by evidence that the circuit court found credible. That evidence is unaccounted for in appellant’s argument, so appellant did not show that the circuit court’s finding, and the admission of supporting evidence, were against the weight of the evidence. Exhibits marked and identified, and used in examining a witness, are constructively admitted. On an objection to records, alleging untimely production, circuit court’s admission into evidence of those records implies a finding against that allegation. Evidentiary error is not prejudicial in the context of other overwhelming evidence. Evidence that appellant “flagrantly disregarded” circuit court orders, violated discovery obligations, and otherwise “unnecessarily increased [respondent]’s costs” supported a finding of contempt and an award of attorney fees.
Khoi M. Le, Appellant, vs. Brenda M. Le, n/k/a Patterson, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108963

Personal Injury

No Jurisdiction Over Non-Residents’ Out-of-State Car Wreck
On defendant’s motion to dismiss for want of personal jurisdiction, plaintiff has the burden to show that the petition’s allegations describe facts supporting personal jurisdiction in Missouri courts. Resort to affidavits in support of such a motion does not convert the motion into a motion for summary judgment because dismissal does not constitute a determination on the merits of the petition. Statute grants circuit court jurisdiction over persons for specified contacts with Missouri for an action arising from such contacts. Petition alleged that Oklahoma resident parties had a car wreck in California. Defendant’s only alleged contact with Missouri were transportation business contracts, including an insurance indemnification clause, reciting a Missouri origin and a Missouri forum selection. But plaintiff was not a party or third-party beneficiary in those contracts, nor any of that business, and those contracts did not address or give rise to plaintiff’s claim. On those allegations, the circuit court did not err in concluding that the statute did not provide jurisdiction over defendant, so whether any contacts meet the constitutional minimum does not matter. 
Charles Babb and Autumn Babb, Appellants, vs. Tiffany Bartlett, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109479


No Right to Effective Probation Revocation Counsel
Rules on post-conviction relief address relief from an unlawful sentence on the basis of ineffective assistance of trial and appellate counsel. They do not allow relief from a probation revocation based on ineffective assistance of counsel because sentence had already been imposed and the hearing was solely on execution of sentence. “The proper remedy instead is habeas corpus.” No evidentiary hearing was necessary for denial of the motion. 
James D. Reiker, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109618

Allegations Conclusively Refuted
Rules provide that no hearing is necessary when the record refutes the motion’s allegations. Movant alleged that plea counsel promised him a certain sentence. The record of movant’s plea hearing, including multiple specific cautions that movant’s blind plea committed movant’s sentence entirely to the circuit court’s discretion, refuted that allegation because it left no reasonable expectation of any certain sentence.
John R. Starks III, Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109555

No Prejudice from Appellate Counsel Shown 
The elements of a claim for ineffective assistance of counsel include outcome-determinative prejudice. Movant did not show that any prejudice resulted from appellate counsel deciding not to argue deprivation of a speedy trial, because no such deprivation occurred, even though the delay is presumed prejudicial. Movant was not untimely in asserting the right to a speedy trial; but the days of delay attributable to the State weigh less heavily, while the days of delay attributable to movant weigh more heavily; and the only prejudice to movant’s defense was unpreserved in circuit court. Therefore, movant did not prove a claim of ineffective assistance of appellate counsel.
Thomas A. Edwards, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109467

Real Estate

Review of Board of Aldermen’s Rezoning Ruling by Declaratory Judgment Okay
Statutes specifically provide that a writ of certiorari is the procedure for review of a rezoning decision by a board of adjustment, but “the zoning decision at issue was made by the board of alderman. In fact, the record does not reflect that the City’s board of adjustment had any involvement whatsoever [.]” Therefore, filing an appeal by declaratory judgment, rather than by writ of certiorari, was not grounds for dismissal. 
PMS 4583 LLC, Appellant, vs. City of New Melle, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109696