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Case summaries for Dec. 17 - Dec. 22, 2021

Civil | Criminal | Employment | Evidence | Family | Juvenile | Post-Conviction | Probate | Real Estate | Workers' Compensation


Collateral Estoppel Resolve Rents Due
Collateral estoppel precludes re-litigating, in a later action, an identical issue already decided in an earlier action. The earlier decision may be merely implicit if it is unambiguous and necessary to the earlier judgment. Both appellant and respondent sought declaratory judgment on the terms of a renewed lease and the rents due. Earlier litigation determined the fair market value for renting land and improvements, and the terms on renewal of the lease, which established those material facts. Absent any genuine dispute, as to those material facts, circuit court did not err in entering summary judgment in favor of respondent and against appellant. 
K.C. Air Cargo Services, Inc. vs. City of Kansas City, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD84195

Release of Medical Records Barred
Statute addressing competence to testify also makes medical records privileged. In a personal injury action based on a car collision, defendant relator did not raise any medical condition in any pleading, but attributed the collision to medical conditions in statements to police officers and decedent’s family. Those statements did not “indicate a clear, unequivocal purpose to divulge his confidential medical information” so no waiver of privilege occurred. Privilege prevails over relevance. Supreme Court makes permanent its writ of prohibition to bar the disclosure of defendant relator’s medical records. 
State ex rel. Darin Lutman, Relator, vs. The Honorable M. Brandon Baker, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC99139


Waiver of Counsel Denied
When the State gave notice to defendant of charges as a prior and persistent offender, waiting for denial of a motion for new trial was too late to challenge the mandatory sentencing statute, and defendant’s challenge was not real and substantial. The “uncomplicated facts” demonstrated that defendant’s attempted waiver of counsel was not knowing and intelligent. Evidence that defendant drove the car that chased victims while a passenger shot at victims supported a conviction on accomplice liability.
State of Missouri vs. Eric Dewane Busey
(Overview Summary)
Missouri Court of Appeals, Western District - WD83720

No Error Admitting Evidence of Uncharged Offenses
Appellant failed to show racial animus in, and to negate the State’s race-neutral reason for, the State’s peremptory strike. Defendant’s objections were sufficient to preserve error. Evidence of uncharged offenses was relevant to give a complete context for the offenses charged, to explain delayed reporting of the offense charged, and show whether victim consented to sexual contact. Circuit court did not abuse its discretion in determining that such evidence’s probative value outweighed the danger of unfair prejudice. Instruction on uncharged offenses was not erroneous. The facts underlying a conviction, not the statute applied, determined that appellant was a prior assault offender.
State of Missouri vs. Christopher R. Jackson
(Overview Summary)
Missouri Court of Appeals, Western District - WD83615

Propensity Evidence Case Transferred
The State failed to file an amended information electronically, but appellant waived all objections on that basis by not raising them. Evidence included anatomical specificity sufficient to support a conviction. On the charges against appellant, Missouri Constitution set forth the standard for the admissibility of propensity evidence. Each objection to propensity evidence requires the circuit court to apply that standard. Some propensity evidence met the standard, like some of victim’s testimony, and a “brief and dispassionate” account of findings in a juvenile action. But “additional testimony [had] successively less probative value and carried an increasing and ultimately untenable danger of unfair prejudice that substantially outweighed the probative value of the additional testimony.” Unfair prejudice includes the jury’s desire to punish defendant for the uncharged offense, as shown by the cumulative nature of the evidence, jury’s inquiry into the uncharged offense, and the State’s “inflammatory” emphasis on that testimony in closing argument. Transferred to Missouri Supreme Court.
State of Missouri vs. Daviune C. Minor
(Overview Summary)
Missouri Court of Appeals, Western District - WD83298

No Exception to Rape Shield Statute
Rape Shield Statute excludes evidence of victim’s prior sexual conduct subject to specific exceptions for material facts and other immediate surrounding circumstances. Such facts include consent when consent is a defense to the offense charged, which it was not, and which was not the purpose of the proffered evidence. The purpose of the proffered evidence was to prove victim’s capacity to consent, and the proffered evidence was not probative of that issue. No prejudicial error occurred because the evidence was harmful to the defense. Whether victim had a bias against the sexual contact alleged was irrelevant to victim’s capacity to consent. Remanded to correct a clerical error in sentencing.
State of Missouri vs. Ronald L. Davie
(Overview Summary)
Missouri Court of Appeals, Western District - WD83020

Defense Evidence Barred, Case Remanded
Felony murder prosecutes an underlying felony, not the accompanying murder, so when the underlying felony includes the use of force, evidence of self-defense is relevant to determine whether defendant committed a felony. “Because [defendant]’s felony murder charge was based on the underlying felony of first-degree robbery, whether [defendant] had, in fact, committed first-degree robbery was the ultimate issue in the case.” On that issue, constitutional provisions protect defendant’s right to present a defense, but the circuit court barred all evidence and argument related self-defense. Conviction reversed and remanded. 
State of Missouri, Respondent, vs. Tyler J. Gates, Appellant.
(Overview Summary)
Supreme Court of Missouri - SC98847

SES Probation Is Not Extension of SIS Probation
Circuit court suspended imposition of sentence, and placed relator on a first probation, which statute limits to five years, plus one more year, if violations of probation occur. A violation of probation, alleged to have occurred more than six years after the start of the first probation, was the basis of a motion to revoke relator’s probation. An act in excess of authority is subject to a writ of prohibition. But circuit court had authority to revoke relator’s authority because, in the interim, the circuit court had imposed sentence, suspended execution, and placed relator on a second probation. That second probation was a new probation, not an extension of the first probation, and so could last another five years, plus one if a violation occurred, and the motion to revoke alleged violations of probation within that time. Preliminary writ of prohibition quashed. 
Missouri Court of Appeals, Southern District - SD37209


Investigation Into Employer Conduct Exhausted Administrative Remedies
In a discrimination action under the Human Rights Act, an administrative investigation into employer’s allegations of which the employer has notice, exhausted employee’s administrative remedies as to any factually related claim in circuit court. Failure to exhaust administrative remedies was unpreserved by an affirmative defense that referred generally to employee’s “factual allegations” because such reference did not “clearly and precisely state facts in support of [employer’s] affirmative defense.” Circuit court did not abuse its discretion in allowing the testimony of a me-too witness of whom employer had notice two months before trial. Employee’s petition pleaded ultimate facts. Instructions using the disjunctive was not confusing or misleading. Employer waived any objection to instruction’s language when employer also offered such instructions. Employer waived an objection to separate compensatory damage awards, for retaliation and hostile work environment, by making no objection to instructions on those awards; and merger was not required because the theories of recovery had different elements. Circuit court properly considered multiplier for attorney fee because it did not consider the same facts used in calculating the “lodestar” base attorney fee.
Ronald Williams vs. City of Kansas City, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83835 and WD83938


Hearsay Admissible Though Declarant Incompetent to Testify
Circuit court was not required to believe that any non-verbal communication between a juror and a spectator addressed, or affected the juror’s view, of the action’s merits. Statutes address evidence from mentally incapacitated persons. One statute provides that such a person is incompetent to testify. Another provides admissibility for the person’s out-of-court statements. But appellant did not show that a declaration of incompetence negates reliability because the two statutes use different standards: the statutes test different characteristics to determine mental capacity, and the latter statute’s considerations include indicia of reliability under the totality of circumstances, while the former limits inquiry to when the person is produced for examination. Law of the case might not bar a challenge to evidence, because the contexts of the earlier trial and later trial can be different, at least when the later trial resulted from a reversal of the earlier judgment.
State of Missouri vs. Angela R. Henderson
(Overview Summary)
Missouri Court of Appeals, Western District - WD83661


Maintenance Terminated Too Early
Statute allows termination of maintenance upon a substantial and continuing change of circumstances that makes the maintenance obligation unreasonable. That can include recipient’s cohabitation, if the cohabitation is a substitute for marriage, which requires a circuit court’s conclusions of law upon findings of fact. Factors include the permanency of the cohabitational relationship and its economic implications. Those findings are subject to deference on appeal. The earliest that maintenance may terminate is personal service or, in the absence of personal service, the filing of an answer. Remanded to determine whether willfully failing to pay maintenance after respondent filed an answer supported a judgment of contempt.
Susan Ann Taormina vs. Marc Kenneth Taormina
(Overview Summary)
Missouri Court of Appeals, Western District - WD84334

Award Was Not Punitive
Statutes governing child support allow modification for “a substantial and continuing change in circumstances.” A substantial and continuing change in circumstances means, when the existing amount was based on the presumed amount pursuant to the child support guidelines, a change of 20 percent of parents’ means or children’s needs; otherwise, by other proofs. Appellant showed no such change with evidence of a drop in income during an uncharacteristic year, nor an increase in overnights anticipated in the original award. Appellant showed nothing punitive in an order to pay private school tuition.
Kathleen M. McLaughlin, Respondent, v. Kevin P. McLaughlin, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109164


New Allegations in Motion to Modify Okay
Juvenile actions address the juvenile and not merely the offense charged. Statute and rule, governing certification of a juvenile for transfer from juvenile division to general division, describe the document praying for such relief as a “petition.” Granting certification on such a document, titled a motion to modify, affected no substantial right so it resulted in no plain error. 
In the Interest of: J.T.J., Appellant.
(Overview Summary)
Supreme Court of Missouri - SC99037


Record Refutes Allegations
Due process does not require an incarcerated party’s in-person appearance when there is a reasonable alternative. Rule specifically provides that an evidentiary hearing on a motion may include movant’s deposition testimony in lieu of movant’s in-person testimony. The circuit court’s “authority to assess deposition testimony is no different from its authority to assess in-person testimony.” On that basis, the circuit court could determine that movant’s post-conviction testimony, alleging coercion in waiving a jury trial, was less credible than movant’s testimony when movant waived jury trial.
Patrick M. Symington vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83902

More Evidence Unnecessary
The elements of a claim for relief based on ineffective assistance of trial counsel include failure to do what reasonable trial counsel does and resulting prejudice. Trial counsel’s closing argument was not incoherent. Movant failed to show that prejudice resulted from trial counsel’s: reservation, and ineffective quality of, opening argument; mostly-successful inquiry for impeachment evidence; failure to object to the State’s “brief and isolated” closing argument on statistics not in evidence. Therefore, no clear error occurred when circuit court denied the motion without an evidentiary hearing.
Ronald McLemore, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98987


Claim Was Against Personal Representative, Not Estate
Plaintiff’s claim, for selling plaintiff’s property in an estate sale, was a claim against the personal representative and not a claim against the estate. Therefore, that claim was subject to the statute of limitations for claims against the personal representative, not for claims against the estate. Statutes determine the venue and authority of circuit court and its divisions, not their jurisdiction, and rules provide a ministerial duty “[w]hen a party files in the wrong division [to] transfer to the appropriate division.” Dismissal reversed. 
In the Estate of: Thomas F. Deboeuf, Deceased.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109619

Real Estate

Fair Housing Act Claims Dismissed
United States Fair Housing Act bars discrimination based on race. The County Assessor had a policy of re-assessing properties below the amount that would require physical examination that, appellants alleged, the assessor applied in a discriminatory manner. Such claims constituted a challenge to assessments, for which the statutes provide a remedy before the County Board of Equalization and State Tax Commission, but which appellants did not exhaust. On that basis, the circuit court dismissed the appellants’ action, and the dismissal was not erroneous.      
Westside Neighborhood Association, et al. vs. Gail McCann Beatty, et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD84146

Discriminatory Assessment Claims Dismissed
Appellants’ claims for declaratory judgment and mandamus constituted a challenge to assessments, for which the statutes provide an adequate remedy at law from the County Board of Equalization to the State Tax Commission, but which appellants did not exhaust. On that basis, the circuit court dismissed the appellants’ action, and the dismissal was not erroneous.     
Evelyn Bravo, et al. vs. Jackson County Board of Equalization, et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD84086

Workers’ Compensation

Crash Was a Breakfast Accident, Not a Driving Accident
Statute bars compensation for injury resulting from “risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.” Claimant choked on his breakfast, passed out, and crashed his work van while on his way to a work assignment. Breakfast, choking, and passing out are unrelated to the employment, part of normal nonemployment life, and caused the crash that caused the injury. Therefore, the statutes barred an award for claimant’s injuries. 
Gary Boothe, Jr., Appellant, vs. DISH Network, Inc., Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98948

ALJ Can Re-Open Record
Statute that “extends ‘unfettered authority’ to an ALJ to hear and determine the award in the first instance” “continues until the [Labor and Industrial Relations] Commission’s review authority is triggered, either by the filing of an application for review or the expiration of the time in which to do so.” Regulations also allow the ALJ to re-open the record for good cause. Good cause includes a change in the case law governing liability of the Second Injury Fund. Remanded to rule on claimant’s motion to re-open the record for evidence relevant under changed case law. 
Gary M. Weibrecht, Claimant/Appellant, vs. Treasurer of Missouri as Custodian of Second Injury Fund, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109591

Evidence on Pre-Existing Injuries Required
Statute conditions Second Injury Fund on a qualifying primary injury and all pre-existing injuries if they, too, qualify. Expert evidence showed only that permanent total disability resulted from a qualifying primary injury and all pre-existing injuries. But claimant did not show that all pre-existing injuries qualified. Claimant did not show that the timing of appellate opinions, discussing pre-existing injuries, requires a remand for more findings of fact based on more evidence. 
Missouri Court of Appeals, Southern District - SD36942


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.