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Case summaries for Dec. 15 - Dec. 21, 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.

Appellate | Civil | Criminal | Employment | Family | Legislative | Personal Injury | Probate | Real Estate | Tax


Deficient briefing results in dismissal
The “simple, straightforward” rules of appellate procedure require appellant’s brief to include a point relied on, which must identify circuit court error and state wherein and why such error is reversible. Error in the Court of Appeals does not state a claim for relief in the Supreme Court. “There is no appeal from a court of appeals decision, and the court of appeals opinion is vacated when this Court transfers an appeal.” Besides, appellant challenged only one of two statutory provisions that the circuit court cited to support its judgment independently, so the unchallenged basis supports affirmance of the judgment. Appeal dismissed.
City of Harrisonville, et al., Appellants, v. Missouri Dept. of Natural Resources and Board of Trustees for the Petroleum Storage Tank Insurance Fund, Respondents.
(Overview Summary) 
Supreme Court of Missouri - SC100043

Appellant’s briefing deficiencies preclude review
Rules of appellate procedure protect the parties from an appellate court constructing an appellant’s argument and thus becoming an advocate. Appellant fails to comply with the rule governing points relied on in that “his statements of law are so abstract we cannot discern the legal reasons he is claiming as reversible error.” Appellant’s argument fails to apply law to fact. Despite instructions on why an amended brief was necessary, appellant’s amended brief does not permit appellate review. Appeal dismissed.
David and Christina Dodson vs. Jonathan Aldrich
(Overview Summary)
Missouri Court of Appeals, Western District - WD86085


Default judgment reinstated with direction to re-calculate damages
Rule allows circuit court to set aside a default judgment on the filing of a motion, within a reasonable time, showing good cause and a reasonable defense. Timely filing is not more than one year, but filing within one year does not necessarily mean timely filing. Movant did not plead or prove that 360 days, during which default judgment creditor collected on the default judgment, was timely. Judgment setting aside default judgment reversed and remanded with instructions to correct a facially inaccurate calculation of damages in the default judgment.
4021 Iowa, LLC, Appellant, vs. K&A Delmar Property, LLC, et al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111747

No good cause for default
Circuit court need not find affidavits credible. Rule allowing circuit court to set aside a default judgment requires three indispensable elements, the failure in any one of which requires denial: a motion timely filed, showing that defendant had a meritorious defense, and that the default was the result of good cause. Good cause means excusable neglect but not recklessness that impedes the judicial process. Recklessness is more likely the result of individual, especially high-level, individuals. Recklessness includes client’s late retention of an attorney and attorney’s decision, having agreed to accept service for client, to let the time for filing responsive pleadings lapse while awaiting determinations on client’s insurance coverage. “An attorney’s actions that result in default are imputable to clients.” Circuit court did not abuse its discretion in denying a motion to set aside the resulting default judgment.
TERRY MCCROSKEY, TOM MCCROSKEY, BRENT MCCROSKEY, DWAYNE MCCROSKEY, CHERIE HOBSON, individually, and CHERIE HOBSON as Next Friend for L.H., a minor, and BETH MURPHY, as Next Friend for C.M., a minor, Plaintiffs-Respondents v. RAJINDER SINGH, et al., Defendants-Appellants
Missouri Court of Appeals, Southern District - SD37797

No taxpayer claim against county contractor
When a petition fails to state a claim on which the courts can grant relief, and the circuit court denies a motion to dismiss on that basis, a writ of prohibition may issue to prevent irreparable harm from proceeding with the action. In an action for negligence, plaintiff taxpayers’ petition alleged that defendant was a contractor for the county assessor, but provided negligent services, resulting in economic damages to taxpayer plaintiffs. Those allegations did not describe any duty from defendant contractor to plaintiffs because “a party to a contract owes ‘no duty to a plaintiff who was not a party to the contract where there was no privity or direct transaction between them.’” The Supreme Court makes permanent its preliminary writ in prohibition ordering the circuit court to dismiss the action.
State ex rel. Tyler Technologies, Inc., Relator, v. The Honorable David P. Chamberlain, Respondent.
(Overview Summary) 
Supreme Court of Missouri - SC100298

In discrimination claim, discovery reaches noose incidents
Rules on discovery provide that admissibility is not a basis for objection and that discovery reaches to any non-privileged matter reasonably calculated to lead to the discovery of admissible evidence. In an action charging student-on-student race discrimination by hostile environment in a public school, the allegations included the spreading of racist propaganda “bookended” by nooses appearing in the boys’ bathroom. Though the noose incidents were omitted from a right-to-sue letter and an amended petition in circuit court, for lack of timely filing and standing, the Human Rights Commission does not circumscribe any action in circuit court. Information about the noose incidents was reasonably calculated to lead to the discovery of inadmissible evidence and might be admissible as “me, too” evidence. “Respondent’s refusal to permit discovery on the topic of separate incidents of nooses being hung on the District’s school premises both before and after the subject incident of heinous racial slurs directed at Relator in the racial email incident is plainly an abuse of discretion.” The Court of Appeals makes permanent its preliminary writ in prohibition.
State of Missouri ex rel. L.O., as Next Friend and Biological Mother of L.D. vs. The Honorable W. Ann Hansbrough, Circuit Judge, Circuit Court of Platte County, Missouri
(Overview Summary) 
Missouri Court of Appeals, Western District - WD86712


Joinder explained
Defendant was charged with domestic assault and violation of a protective order, was released on conditions including wearing an ankle monitor, tampered with the monitor, and fled police trying to find him. Those events were sufficiently connected for joinder of new charges—domestic assault and violation of a protective order—with the existing charges in one trial under the governing rule and statute. As to the charge of domestic assault, the jury found defendant not guilty, so a ruling excluding defendant’s evidence resulted in no prejudice. In the context of other overwhelming evidence of guilt, defendant did not show any likely effect from a State witness’s voluntary, non-responsive, brief, isolated, vague, indefinite reference to an unspecified incident of domestic violence.
Missouri Court of Appeals, Southern District - SD38032

Warrantless search results suppressed
The United States Constitution’s Amendments Fourth Amendment and Fourteenth Amendment protect against the State’s unreasonable searches and seizures, which means most searches and seizures made without a warrant. Defendant driver had a reasonable expectation of privacy in the contents of her purse. On a motion to suppress the results of a search, the State has the burden of proving an exception. When defendant complied with a law enforcement officer’s request to enter the officer’s patrol car, and left the purse in her own car, defendant did not abandon of the purse. Nothing in the record showed probable cause to search the purse for contraband or that the discovery of contraband in the purse was inevitable. Testimony at trial showed that the officer based the search on consent from a male passenger, and a warrantless search is not unreasonable if conducted under consent from a person objectively reasonably believed–even if erroneously—to have such authority, but that did not include the male passenger. The circuit court committed clear error in admitting the results of the search and defendant’s statements about that evidence. The Court of Appeals reverses the judgment of conviction.
State of Missouri vs. Theresa O'Connor
(Overview Summary)
Missouri Court of Appeals, Western District - WD85820


No contract, no breach
Employee accepted an offer of at-will employment. Those facts do not show a contract for employment even though the offer was in a letter. At-will employment is not a contract because it exists only as long as the employer and employee mutually agree with no provisions for duration or termination. The only enforceable promise is pay for work, which does not include paid leave, even though set forth in employer’s policy manual. The manual did not provide for cashing out unused leave. Judgment, denying employee’s claim for breach of contract, affirmed.
Christopher Frensley vs. Datafile Technologies, LLC
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85968

Employer’s summary judgment affirmed on race and disability claims
The Missouri Human Rights Act creates a cause of action for a plaintiff employee who experiences, or resists, employment discrimination based on race or disability. As to retaliation, employee need not show that discrimination occurred, only that plaintiff suffered retaliation for complaining of discrimination, but causation is an element. On defendant employer’s motion for summary judgment, employer established that adverse employment action against employee was based on employee’s performance and not on race or disability or any complaint of discrimination, and employee raised no genuine dispute as to those facts. Employee failed to offer evidence of causation between race or resistance and adverse employment action and offered no medical evidence of any disability. Employee’s evidence showed that employee’s supervisor was difficult to work for regardless of race, and therefore showed no hostile work environment based on race. Circuit court did not err in entering summary judgment for defendants, except for one defendant who did not join in the motion for summary judgment.
Charlotte Moore, Appellant, vs. Southwestern Bell Telephone Company, et al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111470


Unwritten settlement okay
In an action for dissolution of marriage, statute authorizes a settlement agreement in writing, but courts do not require a writing if the parties set forth their agreement on the record. The record is sufficient if it shows how to dispose of the marital property and it is not limited to one hearing. Appellant’s testimony, that appellant was familiar with respondent’s income, negated appellant’s challenge to the judgment for failing to address all respondent’s income. A challenge based on the judgment’s conformity to the parties’ agreement is a challenge to the form of the judgment refuted by the record “in its totality and in context [.]” Appellant failed to show that a disputed asset existed as of the date of the evidentiary hearings or the judgment.
Euan McLeod vs. Kristy McLeod
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85912


Homeless camping bill violated single-subject ban
Missouri Constitution provides that each bill in the General Assembly shall relate to a single subject as set forth in a clear title. The title of a bill “relating to political subdivisions” “did not fairly relate to or have a natural connection with” homeless camping in State parks, State agencies, non-profits, private developers, and criminal offenses. Severance is possible only when a court finds beyond reasonable doubt that the bill would have passed without the provisions that exceed the title, which no party showed. Therefore, the bill is invalid in its entirety.
Johnathan Byrd, et al., The Gathering Tree D/B/A Eden Village v. State of MO, et al.
(Overview Summary)
Supreme Court of Missouri - SC100045

Personal Injury

Dangerous design in dispute
Statute retains sovereign immunity with specified exceptions including a public entity’s property defectively designed or maintained. That exception did not apply to a road with no marked crosswalk, defendant City alleged in its motion for summary judgment, and the circuit court agreed. But plaintiff pedestrian raised a genuine dispute as to that fact, and as to causation and foreseeability, with expert evidence. Sufficient time to become aware of a defect constitutes notice to a city.
Sharon A. Bruckerhoff, Individually, and as Personal Representative of the Estate of Phillip Bruckerhoff, Deceased, Appellant, vs. City of Perryville, Missouri, Respondent 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111670

No liability in high-speed pursuit
“Behavior by a public employee that violates applicable statutes or policies can constitute evidence of negligent conduct” but the elements of claim for negligence remain, including proximate cause. Proximate cause, between a police pursuit of a suspect and the suspect’s collision with plaintiff, was negated by evidence showing that the pursuit was brief, and the suspect was already out of the pursuing officers’ sight when the collision occurred. Conducting a high-speed pursuit is a discretionary function in the execution of a duty to the general public, for which officers are immune from suit under official immunity and public duty doctrine.
Eugene Moore and Wanda Wagner, Appellant, vs. City of O'Fallon, Missouri, et al., Respondents.
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111523

Official immunity bars wrongful death claim
“Prohibition is particularly appropriate when the trial court, in a case where the facts are uncontested, wrongly decides a matter of law thereby depriving a party of an absolute defense.” Absolute defenses include official immunity which bars any action against a governmental employee for a discretionary exercise of duty. Duties of State facility employees are mandatory, but not ministerial, in that there is “even slight” “room for variation” in “when and how” to apply care. “Tasks that can be completed partially or through different methods are not ministerial.” That applies to the tightening of a resident’s pelvic harness in a wheelchair. The Supreme Court makes permanent its preliminary writ in prohibition ordering the circuit court to dismiss the action.
State ex rel. Jayla Ruiz-Morales, John Kimani, and Valarie Johnson, Relators, vs. The Honorable Deborah Alessi, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC100069

Known third person exception discussed
Owner of real estate generally has no liability in negligence to a victim of crime committed on owner’s property, because crimes are not generally foreseeable, so no duty exists. An exception applies when the owner knows that a dangerous person is on the property, which gives rise to a duty to summon police, warn the victim, or follow their own security policy. An employee failed to review surveillance records as instructed when alerted to the presence of someone breaking into cars and stealing in the owner’s parking lot. That conduct is criminal but did not render any danger foreseeable because the person did not threaten any violence. The person shot a car owner with the car owner’s own pistol. Plaintiff car owner made no submissible case of negligence. Plaintiff’s judgment reversed.
Steven Harner, Respondent, vs. Mercy Hospital Joplin, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC100030


Appellant’s briefing deficiencies preclude review
Failure to comply with rules governing the statement of facts, points relied on, and argument make it impossible for an appellate court to “competently rule on the merits of [the Appellants’] argument without first reconstructing the facts . . . and then refining and supplementing [their] points and legal argument.’” Appeal dismissed.
In the Matter of Janet P. Marvin; Charles Basham vs. Christine Louise Kensinger
(Overview Summary) 
Missouri Court of Appeals, Western District - WD86118

Judgment affirmed in battle of co-trustees
Missouri Uniform Trust Code allows the removal of a trustee for incapacity or misconduct but only when those facts show jeopardy to the trust. Appellants challenged the finding that no breach of fiduciary duty occurred as against the weight of the evidence, and the order to make respondent sole trustee as lacking support in substantial evidence, but failed in both because appellants did not address the evidence favoring those rulings. Citations to the record without applying any law preserve no argument. Statutes allow an award of litigation expenses without regard to which party prevails. Remanded to determine litigation expenses on appeal.
Donald A. Riead, Co-Trustee of the John T. Riead, Jr. Revocable Trust, et al. vs. John T. Riead, III, Co-Trustee of the John T. Riead, Jr. Revocable Trust, et al.
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85899 & WD85916

Real Estate

Writing required for contract with sewer district
Summary judgment is subject to appellate review with all inferences favoring appellant. Appellant landowner granted respondent sewer district easements for the duration of construction projects. Landowner alleged that the district later stated that the projects would take specified maximum times, and argued that such representations clarified the contract, but any contract with a municipal corporation—or a modification of such a contract—requires a writing. Writings do not include evidence of communications without the district’s signature, and such writings were subject to exclusion under the parol evidence rule, because the contracts were unambiguous and integrated on their faces. No integration clause was necessary.
STL Riverview Plaza LLC, Appellant, v. Metropolitan St. Louis Sewer District, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111671

Tax sale notice to deed of trust’s trustee not necessary
Respondent tax sale purchaser brought an action to quiet title based on its collector’s deed. Collector’s deed statutes require notice of the redemption period to certain persons. Those persons include the holder of any recorded deed of trust but that does not mean a deed of trust’s trustee. The trustee receives only legal title to secure a lien for the deed of trust’s beneficiary. The beneficiary was appellant lender, lender received actual notice, and lender did not show that the collector’s notice—published as required by statute—was less than satisfactory for due process. Circuit court did not err in dismissing trustee, nor in quieting title in purchaser.
JD Wealth LLC, Respondent, vs. U.S. Bank National Association, ND, et al., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111572

Earnest money returned
In a contract for the sale of real property, buyer could terminate the contract if buyer found the property unacceptable, which buyer did for failure of the property to comply with city code. Termination required buyer’s objections, seller’s rejection, and buyer’s notice of termination. The circuit court’s finding, that buyer satisfied all those conditions, was not against the weight of the evidence. Remanded to calculate attorney fees award for buyer on appeal.
Vineet Sharma, et al., Respondents, vs. Global Investment Group, LLC, Appellant, and Title Plus, LLC, Defendant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED111318


Administrative remedies available for appraisal procedure
Statutes, setting forth the procedure by which the county assessor assesses real property tax, provide for administrative review before a county board of equalization and the State Tax Commission, and judicial review in circuit court. Courts do not exercise their authority to review administrative decisions until the exhaustion of administrative remedies, but plaintiffs brought their action against relators without doing so, and alleged procedural errors did not prevent plaintiffs from seeking administrative review. The Supreme Court makes permanent its preliminary writ in mandamus ordering the circuit court to dismiss the action.
State ex rel. Jackson County, Missouri, et al., Relators, v. The Honorable David Chamberlain, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC100304