Case summaries for Dec. 13-19, 2024

Appellate | Civil | Commercial | Criminal | DWI |Environmental | Insurance | Probate | Post conviction | Real estate

Appellate

No new issues on appeal
“The circuit court cannot have erred in denying a claim that was never presented to it.” In a jury case, rules required the defendant to present a challenge to submissibility by a motion for directed verdict and, if denied, to renew that challenge in a motion for judgment notwithstanding the verdict. No expansion on the motion for directed verdict was possible in reply suggestions filed late in support of a motion for judgment notwithstanding the verdict, nor in appellant’s brief. The defendant’s sovereign immunity defense did not preserve a defense under the public duty doctrine or privity. Those defenses did not constitute a challenge to standing that could appear any time. As to instructions, a rule required a timely and specific objection that the defendant waived, and thus also waived plain error review. Judgment for the plaintiff affirmed. 
(Overview summary) 
Willie Roark vs. KC Pet Project 
Missouri Court of Appeals-Western District – WD86960

Civil

Summary judgment affidavit was inadmissible 
Rule governing summary judgment required the movant to establish beyond genuine dispute the facts that entitled the movant to a favorable judgment. A movant without the burden of proof could do so by showing that, after time for discovery, the party with the burden of proof could not carry that burden as to an element of that party’s claim. The movant had to support the motion with admissible evidence, including testimony by affidavit, but the defendant relied solely on and affidavit that relied solely on hearsay — business records — without attaching such records. The affidavit was inadmissible, depriving the motion of support and requiring denial. The Missouri Court of Appeals reversed the judgment and remanded the case for further proceedings. Whether the circuit court also erred in soliciting a supplement from movant, the Court of Appeals could not decide, because of deficient briefing. 
(Overview summary) 
Kevin LaBranche vs. Circuit Court of Jackson County 
Missouri Court of Appeals-Western District – WD86579

Involuntary servitude not pleaded 
Dismissals without prejudice were not final and therefore not subject to review. Any dismissal that practically terminated an action as pleaded was the equivalent of dismissal with prejudice, so such a dismissal was subject to appeal, even when designated neither with nor without prejudice. When a circuit court did not set forth the grounds for granting a motion to dismiss, appellate courts assumed that the circuit court’s grounds were among those set forth in the motion. The motion charged the plaintiff with failure to state a claim. To state a claim required petitioner to set forth ultimate facts that invoked substantive law. The law cited was a civil rights statute barring involuntary servitude, but involuntary servitude was expressly allowed by constitutional provisions as punishment for a crime. The plaintiff’s allegations did not describe any servitude within the Eighth Amendment’s prohibitions. And, even if such servitude violated a Missouri statute, a stator violation did not alone show a civil rights violation. The Missouri Court of Appeals affirmed the judgment of dismissal. 
(Overview summary)
Ronald Jordan vs. James H. Coffman
Missouri Court of Appeals-Western District – WD86511

No judgment on the pleadings without an adverse pleading 
In the underlying action for guardianship of a child, the petition stated a claim and the parent defaulted. One rule allowed the circuit court to set aside any judgment that was void, including for lack of personal jurisdiction. Personal jurisdiction included service of notice, for which no amount of actual notice was a substitute, and the parent’s consent to guardianship did not waive notice. But the parent failed to raise that defect at the first opportunity, which was the petition to set aside, raising only in an amended petition, and so waived the issue. Judgment on the pleadings relied on an adversary’s allegations to support judgment for the movant, but no responsive pleading was required of or made by the defendants, and denying the motion was not an abuse of discretion. Another rule allowed the circuit court to set aside a default judgment if the moving party had a meritorious defense and good cause for defaulting. But those elements were matters of fact requiring supporting evidence that the parent did not provide. Appellate courts presumed that circuit courts found the facts consistent with their conclusions of law and order as to relief. So, an assumed but unmade finding, contrary to the circuit court’s ruling, could not show that the circuit court’s ruling was against the weight of the evidence. Statutes required the circuit court to determine parent’s fitness on the parent’s merits alone, not by comparison to any other person’s fitness, but the parent did not show that the circuit court did otherwise. The Missouri Court of Appeals affirmed the judgment denying a termination of guardianship.
IN THE MATTER OF THE ESTATE OF A.R.B., A MINOR, K.S. AND V.S. Respondents v. A.L., Movant
Missouri Court of Appeals-Southern District – SD38193

Commercial

CDS shown as paid 
In a safe deposit box, the decedent’s personal representative found certificates of a deposit not marked paid, so the personal representative brought an action against the issuing bank to discover assets. The bank raised the affirmative defense of payment, on which the circuit court found in the bank’s favor. That finding was not against the weight of the evidence: records of cancelled certificates of deposit, deposits in the amount of the certificates of deposits’ corpus into decedent’s predecessor’s account, and the bank’s standard practices. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
In Re the Estate of Patricia McDow, Decedent, Gray Birdsong vs. The Callaway Bank 
Missouri Court of Appeals-Western District – WD86824

Criminal

Open season argument was not personalized 
Plain error review required an open and obvious error that was outcome-determinative. Provoking an emotional response from the victim’s widow was “unnecessary and in poor taste, but did not necessitate a mistrial.” Testimony of the victim’s widow “may have been to provide context for the jury, to provide insight into Victim’s demeanor or state of mind, or to provide a better basis for the jury to evaluate the witness’s testimony[, or] to garner sympathy for Victim[.]” But none of that testimony related to an element of the state’s claim, or the defendant’s affirmative defense, so the Missouri Court of Appeals denied plain error review of the absence of a sua sponte mistrial. Improper personalization consisted of asking the jurors to put themselves in the victim’s place, or suggest a personal danger to jurors or their families. That did not describe the state’s closing argument. The argument was that finding the defendant not guilty meant “open season” on people of the county. No sua sponte corrective action was necessary so no plain error occurred. 
STATE OF MISSOURI, Respondent vs. DAYMOND C. REEVES, Appellant 
Missouri Court of Appeals-Southern District – SD37955

Different substance, same offense 
Rule allowed amendment of charges any time before verdict or finding, unless the amendment added a new or different charge, meaning a different element. On a charge of possessing a controlled substance by possessing heroin, two days before trial, the state amended its information to allege that the substance possessed was fentanyl. That amendment did not constitute an additional or different offense because the two substances were both scheduled and thus legally indistinguishable. 
(Overview summary) 
State of Missouri, Respondent, vs. Travis J. Devore, Appellant. 
Missouri Court of Appeals-Eastern District - ED112267

Knowledge and purpose shown in terroristic threat
On a charge of making a terrorist threat, the elements included knowingly communicating a threat. A jury could use any evidence admitted without objection for any purpose, so a dispatch memo describing the defendant’s statement as “going to go to the school and shoot all the kids up” supported a finding that the defendant used those words, testimony to the contrary from another witness notwithstanding. The reaction of the statement’s recipient also supported a finding that the defendant knowingly made a threat. The elements also included “the purpose of frightening ten or more people.” Whether a communication was constitutionally protected speech was a challenge to the sufficiency of the charging instrument that was due in a pre-trial motion and waived when not raised at the earliest opportunity. The Missouri Court of Appeals affirmed the conviction.
STATE OF MISSOURI, Plaintiff-Respondent v. SHANE HOWARD KEATHLEY, Defendant-Appellant
Missouri Court of Appeals-Southern District - SD37766

DWI

Briefing deficiencies required dismissal of appeal 
On judicial review of a driver’s license revocation, the circuit court affirmed the revocation. When the appellant challenged a judgment based on a factual finding necessary to the judgment, and some evidence supported that factual finding, the appellants could still challenge the finding as being against the weight of the evidence. The appellant driver challenged the finding that the driver was “operating a motor vehicle.” The elements of that claim included “to identify all of the evidence in the record that is favorable to the factual proposition that Driver was operating the vehicle[.]” Omitting any such evidence deprived the appellant’s argument of any persuasive value. The Missouri Court of Appeals affirmed the judgment. 
MARK EDWARD HOOD, Petitioner-Appellant v. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals-Southern District – SD38450

Environmental

Mining permit defeated on incomplete application 
In an application for a permit for mining land, statutes required the application to name any person with any interest in such land and show such person’s consent to access and post-reclamation use. Regulations allowed rejection of an incomplete application. “An agency’s interpretation and construction of a statute it administers is ‘entitled to great weight.'" An application omitted an owner of the land and the Missouri Mining Commission nevertheless granted the application. On administrative appeal from that ruling, the Administrative Hearing Commission recommended rejection of the application. “[W]e do not rewrite what the legislature has written, but rather simply follow the statute they have crafted.” 
(Overview summary) 
In Re Mid-States Materials, LLC Permit NO. 1236-A2; The Osage Nation; Randal S. Dobyns and Leslie R. Dobyns, Individually and as Trustees of the Dobyns Family Trust Dated October 15, 2018 vs. Missouri Department of Natural Resources & Missouri Mining Commission, Mid-States Materials, LLC 
Missouri Court of Appeals-Western District – WD87090 (Consolidated with WD87144)

Insurance

Total disability definition unambiguous 
The insured’s life insurance policy’s disability rider unambiguously conditioned benefits on disability of a specified duration. The policy distinguished between residual disability and total disability, and the circuit court did not err in applying the latter to the insured. The insured’s designation of an alternative argument did not show a genuine dispute of material fact, so the circuit court did not err in entering summary judgment for the insurer. 
ROBERT L. HALL, M.D., Appellant vs. UNUM LIFE INSURANCE COMPANY OF AMERICA, Respondent 
Missouri Court of Appeals-Southern District – SD38046

Mutual company’s status intact 
The plaintiff estate of insured brought claims against which statutes immunized any insurer operating as a mutual company. As to such operation, the plaintiff’s citation to the late filing of a document did not raise a genuine dispute as to that status because the statutory consequences of the late filing did not include loss of the status and the late filing resulted in certification of that status by the director of insurance. The Missouri Court of Appeals affirmed the summary judgment on the claims for the insurer. 
DONALD W. INGRUM, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF RALPH M. ORTHWEIN, Appellant v. CFM INSURANCE, INC., Respondent 
Missouri Court of Appeals-Southern District – SD38338

Probate

Briefing deficiencies required dismissal 
Appellate rules set forth how to give the courts and other parties notice of the issues, which was the purpose of appellant’s brief, and protect the courts’ neutrality. The statement of facts had to be fair and concise and refer to the record. Points relied on had to identify the challenged ruling and state wherein and why a ruling constituted reversible error. The argument had explain the standard of review and cite authority and could not cure a deficient point or revive a waived claim. Appellant’s failure to comply preserved nothing for review. The Court of Appeals dismissed the appeal. 
(Overview summary) 
In the Matter of the James A. Long Trust Dated December 13, 2007 as Amended. Sharon Long, Successor Trustee vs. Kevin Long, Et al. 
Missouri Court of Appeals-Western District – WD86738 consolidated with WD86759

Post-conviction

Briefing deficiencies required dismissal 
Rules governing the appellant’s brief required notice to the courts and other parties of the matters in dispute. Points relied on had to state wherein and why the circuit court erred, and how the appellant preserved such errors. The movant also directed counsel to set forth the argument as directed by the movant verbatim in a manner not compliant with the rules. Failure to comply rendered the appellant’s arguments unreviewable. The Missouri Court of Appeals dismissed the appeal. 
(Overview summary) 
William Schierbaum, Appellant, v. State of Missouri, Respondent. 
Missouri Court of Appeals-Eastern District – ED111800

Real estate

Statute of frauds satisfied on identification of leased land 
An appeal was moot when no controversy remained as shown by the non-prevailing party’s acquiescence in the judgment. In an action over a lease of farmland, on judgment for landlords, tenants ceased trying to work the land. But that did not show acquiescence in the judgment against the background of tenants’ post-trial practice, including filings in circuit court and in the Court of Appeals, so the appeal was not moot. “Because the material facts are undisputed and the merits of the two motions [for summary judgment] are inextricably intertwined, we will review both the grant and denial of summary judgment.” The statute of frauds barred any action on the lease for a year or more of land without a writing that set forth specified provisions of the lease, including the subject property and its owner, or at least the means to identify that land. For each lease, the tenants established without genuine dispute that the landlords owned only one property in the county recited, and that such properties matched the lease documents’ descriptions, including by name, so those properties had to be the properties leased. And the tenants established without genuine dispute that all acreage on each farm was subject to the lease, the leases’ misstatements of the farms’ sizes notwithstanding. The Missouri Court of Appeals reversed summary judgment for the landlords and directed entry of summary judgment for the tenants on the statute of frauds issue and remanded for further proceedings. 
(Overview summary) 
Derek Fuemmeler, Et al. vs. Mike and Mark Farms, LLC, Et al. 
Missouri Court of Appeals-Western District – WD86868

Unclean hands defeated specific performance 
The findings, admissions, and instructions on some claims negated the premises of other claims, making an express ruling on the other claims unnecessary, so the judgments were final and subject to appellate review. The circuit court denied specific performance of a contract because the claimant had unclean hands, meaning bad faith regarding the contract’s subject matter, which had support in evidence of the claimant’s harassment and threats to repudiate the contract. A statement of no objection to verdicts and verdict forms waived any error. The record supported the circuit court’s award of attorney fees. 
(Overview summary) 
Veeral Bhoot, D.O., Et al. vs. 701-709 NE Woods Chapel Road, LLC, Et al. 
Missouri Court of Appeals-Western District – WD86805 consolidated with WD86825 and WD86860