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Case summaries for Dec. 11 - Dec. 17


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.

AttorneysConstitutional | ContractCriminal | Evidence |
FamilyPersonal Injury | Post-Conviction | ProbateSchools


No Claim Based on Probate Practice
The elements of a claim for legal malpractice include an attorney client relationship between defendant attorney and plaintiff client, or at least plaintiff’s status as an intended third-party beneficiary. No beneficiary status under decedent’s will, or other pecuniary or personal interest, appears in plaintiff’s allegations. So, even assuming those allegations to be true, defendant owed no duty to plaintiff in the drafting of decedent’s will; and plaintiff’s petition stated no claim for relief. Plaintiff’s contingent interest in decedent’s estate and plaintiff’s status as personal representative of decedent, and allegations of damage to decedent’s trust, were insufficient to confer standing upon plaintiff in plaintiff’s individual capacity.
Dustin Meyer vs. Carson and Coil and Harold Walther
(Overview Summary)
Missouri Court of Appeals, Western District - WD83488


Mandatory Minimum Okay for Juvenile
Constitutional provisions require consideration of juvenile status before imposing the harshest sentences, meaning the sentences that work an irrevocable forfeiture, which are capital punishment and life without possibility of parole. Nothing bars the imposition of any other mandatory minimum sentence. And, even if it did, the record shows that the circuit court considered appellant’s juvenile status when imposing sentence.
State of Missouri, Respondent, vs. Lamarion V.E. Thomas, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108148


No Contractual Attorney Fees on Fraud Claim
Circuit court awarded attorney fees to plaintiff based on the provisions of the parties’ contract, but the contract was expired and the jury never decided that claim, so the contract did not support the award. The plaintiff prevailed only on its fraud claim, which is subject to the American Rule, and the exceptions to that rule do not apply.
AEFC, INC., Plaintiff-Respondent v. TAMMY D. VIETTI, Individually, and VIETTI ENTERPRISES, LLC, Defendants-Appellants
Missouri Court of Appeals, Southern District - SD36137


Erroneous Verdict Form Cured
Rule governing plain error review provides one analysis to decide reversible error on any challenge to any ruling—"statutory, constitutional, structural, or based in some other source [.]” The plain error analysis of any ruling is whether the circuit court committed an error that: was “evident, obvious, and clear [,]” caused a “manifest injustice or miscarriage of justice [,]” and was “outcome determinative [.]” The State may argue an adverse inference from the defendant’s failure to call a witness equally available to both parties if defendant has made that argument against the State, unless the argument is “plainly unwarranted [,]” and has a “’decisive effect’ on the jury’s verdict.” Circuit court did not err in rejecting jury verdict that was incomplete and used the wrong form. An error in jury instructions is presumed prejudicial, but appellant must show prejudice from an error in a verdict form, and circuit court cured its error so as to negate any prejudice.
STATE OF MISSOURI, Plaintiff-Respondent v. GUSTAVO VENZEZ HERNANDEZ, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36382

Hearing Recommended for Denial of Probation After 120-Day Program
A writ of mandamus may issue to a circuit court when the circuit court is acting contrary to law. Statutes provide that circuit court may deny probation to an applicant who has completed a 120-day drug treatment program, but that ruling must have support in substantial and competent evidence on the record, which was lacking in relator’s case. No evidentiary hearing is required, but is useful for matters that may support denial of probation.  
State ex rel. Ernie L. Williamson, Relator, vs. Hon. Troy A. Cardona, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109270

Wheelchair Did Not Make Interrogation Custodial
Statements made in response to police interrogation are inadmissible for absence of Miranda warnings only if the interrogation was custodial. Custodial interrogation means the interrogated person’s “freedom to leave . . . an interrogation” and other factors “suggestive of being in police custody.” Defendant had limited mobility, but that was because of defendant’s need for a wheelchair, not because of officers’ conduct. Officers may use deception to obtain admissible statements “unless the deception offends societal notions of fairness or is likely to produce an untrustworthy confession [,]” which does not describe officers’ suggestion that they had evidence of defendant’s presence at crime scene. Prosecution’s opening statement promised, and prosecution’s case in chief presented, evidence of deliberation including method of murder sufficient to support a submissible case on charges of first-degree murder and armed criminal action.
STATE OF MISSOURI, Respondent vs. CALVIN L. TRENT, Appellant
Missouri Court of Appeals, Southern District - SD36468


Probation Privilege Discussed 
Statute creates privilege for statements from person on probation to probation officer. Probation officers do not include county sex offender registrar. Registrar's testimony, relating statements from appellant, was not subject to suppression because appellant did not show that registrar's inquiry resulted from statements to probation officer. Registrar's testimony rendered probation officer's testimony cumulative and, therefore, not prejudicial.  
STATE OF MISSOURI, Plaintiff-Respondent v. JACOB RAY MARSH, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36348


Findings of Fact Required in Custody Order
Statutes set forth factors for determining custody disputes and require, on each such applicable factor, written findings of fact. Findings of fact are more than mere conclusions, they provide detail, relevant to the standard described by the statutory factor, sufficient for appellate review. Matters not raised in a motion to amend are abandoned. The absence of such findings requires reversal.
T.J.W., Individually, and A.N.M.W., by T.J.W., as next friend, Respondents vs. K.T., Appellant
Missouri Court of Appeals, Southern District - SD36296

Personal Injury

Anticipatory Release Okay, Inherent Risks Assumed
Inherent risks of an activity are risks that defendant cannot “alleviate without fundamentally altering” “the structure and essence” of the activity. Plaintiff customer is deemed to have assumed the known and understood risks inherent in an activity like snow tubing, so defendant owner of recreational facility has no liability to plaintiff, unless defendant negligently enhanced such a risk. Negligently enhanced risks are subject to anticipatory release. Anticipatory releases are not inherently void, but are subject to strict construction, and must describe the liabilities waived clearly enough for a reasonable person to understand. The language must clearly and conspicuously mention negligence or fault or equivalent terms “so that a clear and unmistakable waiver and shifting of risk occurs.” Terms applicable to the sale of real estate, goods, and services are ineffective to release liability for risks. Respondent’s release form met this standard because it detailed the risks of snow-tubing.
Douglas E. Ferbet, Appellant, vs. Hidden Valley Golf and Ski Inc. and Peak Resorts, Inc., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108495


Stipulation Was Reasonable Strategy
An alibi witness is subject to impeachment for delayed reporting of the alibi, so an objection to such impeachment would have been meritless, and the decision to make no such objection did not show that trial counsel was ineffective. Movant did not show an insurmountable problem with the foundation for an exhibit, and stipulating to that exhibit’s entry into the record was a reasonable trial strategy, so movant did not show that trial counsel was ineffective. Movant did not show that trial counsel needed to impeach a witness with information that raised an issue under the Rules of Professional Conduct, so movant did not show any meritorious point on appeal as to that matter, and did not show that appellate counsel was ineffective.
Billy Taylor Rabun, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108449


Statute Did Not Allow Appeal
The right to appeal exists only as provided by statute. Appellant challenged procedural matters, effectiveness of counsel, and choice of conservator. But appellant cited a statute only allowing an appeal of a judgment of incapacity. Dismissed.    
IN THE MATTER OF PEGGY GONSALVES, an incapacitated and disabled person
Missouri Court of Appeals, Southern District - SD36795


Google Storage Did Not Violate FERPA
Statutes allow termination of teachers for willful violation of school board policies; school board policies incorporate the Family Educational Rights and Privacy Act, and that Act protects confidential student information from disclosure. But that Act expressly defines disclosure to exclude transfer to oneself, and the Board’s policies expressly interpret disclosure to mean transfer to a third party, so no disclosure occurred when teacher stored information in her own Google account. Court of Appeals does not hear arguments raised for the first time appeal.
Tammy Ferry vs. The Board of Education of the Jefferson City Public School District
(Overview Summary)
Missouri Court of Appeals, Western District - WD83649