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Case summaries for Dec. 16 - Dec. 22, 2022


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.

Administrative | ADR | Appellate | Civil | Construction | Criminal | Family | Juvenile | Personal Injury | Post-Conviction | Real Estate


Administrative Remedies Not Exhausted in Non-Contested Case 
In a non-contested case, judicial review is available only when administrative review is not. Judicial review is available via taxpayer standing to challenge a direct expenditure of tax revenue, but that does not include a contract for a licensing office, because the state must expend revenue to run the office without regard to which bidder is awarded the contract. The award was subject to an administrative protest procedure, to argue that a standard for making the award constituted an unpublished regulation, so failure to exhaust that administrative remedy deprived the circuit court of authority over that argument. The state’s selective communication among bidders supported a conclusion that the process was arbitrary, capricious, and unlawful. The award is void.   
LO Management, LLC, et al., vs. Office of Administration, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84954 and WD84956 

Findings of Fact and Conclusions of Law Required 
City’s ordinance on demolition provided a decision by an office, and a decision after hearing before a board, which made the board’s procedure a contested case. Contested case procedure makes the record, to which an agency applies the law, and on which the courts review the decision. That decision is unreviewable absent the written findings of fact and conclusions of law, which the statutes require in a contested case. The board’s mere recitations of evidence, and general and conclusory findings, constitute “error requiring reversal.” Remanded. 
Holly Nighbert, Appellant, vs. City of St. Louis, Preservation Board of the City of St. Louis, Richard Callow, Melanie Fathman, Tiffany Hamilton, Michael Killeen, David Richardson, Anthony Robinson, Randy Vines, and Joseph Vacarro, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED110496 


Arbitration Agreement Incorporated Law That Exempted the Parties 
Parties’ employment contract and a separate arbitration agreement, which included a delegation provision, delegated to an arbitrator all issues of arbitrability. “Questions of arbitrability include whether the parties are bound by an arbitration agreement and disputes over formation, enforceability, and applicability to the dispute at issue.” But, on a motion to compel arbitration, the circuit court’s “necessarily antecedent statutory inquiry” is to “determine as a threshold matter whether an arbitration agreement is enforceable.” The arbitration agreement incorporated the Federal Arbitration Act, which exempts from its provisions “contracts of employment of ... workers engaged in ... interstate commerce.” Interstate commerce includes an airline pilot like respondent, and appellant did not show that Missouri’s Uniform Arbitration Act applied either. Therefore, appellant did not show that any law made the arbitration agreement enforceable, and the circuit court did not err in denying the motion to compel. Whether a stand-alone arbitration agreement is subject to a Missouri statute, requiring notice that a contract includes an arbitration agreement, the Court of Appeals need not decide.
Hampton S. Brown, et al., Respondent, vs. Gojet Airlines, LLC, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110645 


Appellant’s Deficient Brief Requires Dismissal 
Appellant’s statement of facts was not free of argument. Appellant’s three-page point relied on gave the Court of Appeals no notice of the ruling challenged and the theory supporting reversal. Appellant’s argument recited law without applying it to the facts. The Court of Appeals will not sift the record and search for applicable law to construct a claim for appellant. Dismissed. 
Selahattin Aydin vs. Kenneth Boles 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85098


Sovereign Immunity for the Petroleum Storage Tank Board 
To name the Petroleum Storage Fund instead of the Petroleum Storage Tank Board is no mere misnomer subject to correction because the Fund is an account subject to the direction of the Board, which is “expressly designated” by statute as a state agency. State agencies have sovereign immunity from any civil action with specific exceptions only as provided by statute, pleaded, and proved. The Board raised, and did not waive, the defense of sovereign immunity as soon as plaintiff City substituted the Board for the Fund as a defendant. That substitution happened on remand so the Board, not having been a party until that remand, is not subject to the law of the case. The Supreme Court reverses the circuit court’s award, of $8 million for the City and against the Board, and enters judgment for the Board. 
City of Harrisonville, Missouri, Respondent/Cross-Appellant, vs. The Board of Trustees of the MO Petroleum Storage Tank Insurance Fund in their Official Capacity, Appellant/Cross-Respondent. 
(Overview Summary) 
Supreme Court of Missouri - SC99273 

No Appeal from Denial of Habeas Corpus 
When a circuit court denies a petition for writ of habeas corpus, the remedy is to file the petition in the Court of Appeals, not a direct appeal. That applies to any pleading, however styled, that repeats a claim in the petition for writ of habeas corpus. Appeal dismissed. 
Vance R. Clark vs. Doris Falkenrath, Warden 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD85478 


Attorney Fees Awarded 
Rule requires specific pleading of special damages, which includes attorney fees, and plaintiff’s petition cited such a provision from the parties’ purchase order. Citing a different provision in a motion for attorney fees does not change the result because the petition put defendant on notice. 
Square Up Builders, LLC, Respondent, vs. Crystal Window & Door Systems, Ltd., Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110578


Error Waived for Polygraph Evidence 
Testimony, that a witness was so disturbed by what the witness discovered that the witness changed jobs, was relevant to support the witness’s credibility. “A hearsay objection does not preserve constitutional claims relating to the same testimony.” Hearsay is admissible if it consists of a patient’s statement to a health professional for a physician’s use in diagnosis. When defense counsel chooses to make no objection to polygraph evidence, and chooses to elicit more of such evidence for strategic purposes, appellant waives error including plain error. Error in admitting evidence rejected by the jury as shown by the verdict, or evidence cumulative of other more damaging evidence, is harmless. 
State of Missouri vs. Jason R. Shade 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84521

Statute on Vehicle Impoundment Applied 
Statute provides that peace officers may have an arrested person’s vehicle towed from a third person’s property when an offense is alleged within the officer’s territorial jurisdiction, an officer arrests the vehicle’s driver, and the driver cannot “arrange for the [vehicle]’s timely removal [.]” Appellant offered no evidence that appellant could have had anyone else remove the vehicle and the record shows that appellant was incoherent when arrested. The State subsequently conducted an inventory search in accordance with its standard procedures. Those facts show no invasion of constitutional protections against unreasonable search and seizure, so the circuit court did not err in denying appellant’s motion to suppress evidence obtained as a result of the search. Trial counsel preserved a challenge to that ruling by timely objection phrased in the substance of the statute, without citation to the statute, but the better practice is to cite the statute by section number. 
STATE OF MISSOURI, Plaintiff-Respondent v. WILLIAM BRYCE CREUTZ, JR., Defendant-Appellant
Missouri Court of Appeals, Southern District - SD37383


Law of the Case, Preservation of Error, and Form of Argument Dispose of Challenges 
A challenge to the award of child support, not raised in an earlier appeal, was barred by the law of the case. After an earlier appeal, circuit court complied with Court of Appeals’ mandate to make additional findings, and left all other issues open to the circuit court’s consideration. Statutes express a preference for joint legal custody and the record supported such an award. To preserve error in the judgment’s lack of a written parenting plan required a post-judgment motion to amend, and such motion was filed out of time, just after midnight on the night of the last day. An argument, that a ruling is unsupported by substantial evidence, fails when it ignores the evidence supporting the ruling. 
T.J.W., Individually, and A.N.M.T.-W., by T.J.W. as Next Friend, Petitioners-Respondents vs. K.T., Respondent-Appellant 
Missouri Court of Appeals, Southern District - SD37065 


Certification as Adult Affirmed 
Statutes provide juvenile proceedings for certain persons but also provide dismissal of such proceedings and prosecution under criminal law upon certification of the circuit court’s juvenile division. Factors include how serious are the juvenile’s offenses, and public safety implications, which do not depend solely on classification as a felony. The circuit court had support in the record for its conclusions that appellant reflected maturely on her actions and that rehabilitation under juvenile law was unlikely. An irrelevant factor – physical size – does not negate those findings because it received little weight. 
In the Interest of: C.L.F., vs. Juvenile Officer 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84982              

Age of Eligibility for Certification Is When Offense Occurred 
Statutes give the circuit court’s juvenile division “exclusive original jurisdiction” over persons of specified ages accused of criminal offenses “even if that individual is no longer a child at the time the juvenile proceedings are conducted.” But statutes also allow circuit court to certify, as an adult subject to criminal law, a juvenile who was between the ages of 12 and 17 years old when an offense occurred, as alleged in the delinquency petition. That describes appellant. When the delinquency petition was filed, appellant was 19 years old, but that is irrelevant.   
In the Interest of: B.S., vs. Juvenile Officer 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84833          

Personal Injury

Discovery Sanction Upheld, Damages Limited by Statute 
Appellant’s repeatedly incomplete responses to discovery over 15 months showed appellant’s bad faith, so no abuse of discretion occurred when the circuit court sanctioned appellant by striking pleadings, entering default on liability, and barring the presentation of evidence at a hearing on damages. The order did not bar appellant from participating otherwise, so appellant’s failure to appear at the hearing on damages waived jury trial on damages. But a statute limits the damages that the circuit court can award, that maximum is not an affirmative defense, and plain error occurred when the circuit court awarded damages beyond that amount. Remanded for circuit court to conform its damages award to the statutory maximum according to the circuit court’s “very specific amounts for various kinds of compensatory and punitive damages.” 
Marilyn Washington vs. Sioux Chief MFG. CO., Inc. 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84714 and WD84749 


No Prejudice Shown 
In a claim for ineffective assistance of trial counsel, the elements include substandard performance, resulting in prejudice. Trial counsel did not object to the recitation of prior offender status in a seventh amended information because the state would have simply filed an eighth amended information, and proof of that status was not lacking. Circuit court did not err in denying relief without a hearing. 
Brian McBenge, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110102 

Real Estate

No Mandamus on Conditional Use Permit 
City council denied a conditional use permit by non-contested case. A non-contested case is subject to review in circuit court by trial de novo except that, when the facts found in circuit court support the result reached by the city council, no substitution of circuit court discretion for the city’s discretion is authorized. Nevertheless, circuit court required issuance of the permit by writ of mandamus. Mandamus applies only to a ministerial duty and not to an exercise of discretion. Discretion is, by statute, always a part of deciding a conditional use permit application. Supreme Court reverses circuit court’s judgment and quashes the circuit court’s writ of mandamus. 
BG Olive & Graeser, LLC, and Forsyth Investments, LLC, Respondents, vs. City of Creve Coeur, Missouri, Appellant. 
(Overview Summary) 
Supreme Court of Missouri – SC99619

Order for Partition Sale Must Specify Percentages of Ownership 
In an action for partition of real property, statutes require the circuit court to declare the parties’ respective interests, then order a division of either the property or the post-expense proceeds from a partition sale. Such an order describing the parties’ interests only as “undivided” is insufficient to determine whether the parties’ interests are equal as presumed or unequal. Reversed and remanded to quantify interests by percentage.   
Katie Lynn Reagan vs. Jerry L. Bramlett, et al. 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85045