Case summaries for Dec. 18 - Dec. 23

Administrative | Appellate | Civil | Contract | Criminal | Post-Conviction | Tax

Administrative

No Relief Without Appellant’s Brief
On appeal of an executive-branch agency decision, an appellate court reviews the agency’s decision, any intervening circuit court judgment notwithstanding. Therefore, the appellant is the party appealing the decision, not necessarily the same party appealing the judgment. Agency decision aggrieved licensee, not licensing agency, so licensee was the appellant, notwithstanding circuit court’s partial reversal of agency aggrieving—and prompting notices of appeal from—both parties. Rules require licensee to file appellant’s brief, which did not happen, and allow dismissal for failure to do so. Court of Appeals disregards appellant’s reply brief filed after dismissal. Appellant preserved nothing for appellate review, requiring affirmance of the agency’s decision, and vacatur of the circuit court’s judgment.  
Vicki Unruh vs. State Board of Nursing
(Overview Summary)
Missouri Court of Appeals, Western District - WD83507 and WD83519

Emergency Discipline Procedure Okay
A professional license is property protected by the due process of law, which includes notice of facts and law charged in support of discipline. Notice was sufficient, in that it included a complaint from the licensing agency citing the procedures applicable to the processing of the complaint, both post-deprivation on the merits and pre-hearing deprivation under emergency provisions. Statutes governing emergency orders provide that emergency orders are not final, and require a decision on the merits of a complaint for discipline within a time certain, so the emergency procedure is facially constitutional and Administrative Hearing Commission’s regulation for a decision without hearing do not apply. A post-deprivation hearing 120 days after the filing of a complaint provides time enough to prepare a defense. Statute, setting forth the facts supporting an emergency order, does not require current facts so events in the past support an emergency order. Invocation of Fifth Amendment rights supported an adverse inference. Credibility was for the Commission to determine so challenging the credibility of a witness in an appellate court cannot support a challenge to the Commission’s ruling. Statute barring a hearing officer from conducting a rehearing or appeal does not apply to the emergency determination of probable cause and the evidentiary hearing on the merits of a complaint for discipline.
Blake H. Donaldson, D.O., Appellant, vs. Missouri State Board of Registration for the Healing Arts, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98640

Second Remand Necessary
When an appellate court remands a case to a lower tribunal, that tribunal retains all its original authority over the case subject to the mandate’s directives, which the tribunal must follow. When the Court of Appeals’ mandate directed the Labor and Industrial Relations Commission “to reinstate the ALJ’s award of permanent partial disability benefits [,]” and the Commission reinstated the award without determining—initially or on remand—whether a disability is permanent, the Commission committed no error. But on appeal of the Commission’s reinstatement, an appellate court corrects its own errors, and law of the case does not bar reconsideration of a mandate issued in error from “inadequate briefing.” Inadequate briefing includes failure to request all relief from all errors, which resulted in denial of process due under the statutes, so the Court of Appeals corrects that error and remands for a determination of permanency.
Bruce Krysl, Respondent, vs. Treasurer of Missouri as Custodian of the Second Injury Fund, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108958

Appellate

Reverse Briefing Schedule in Appeal of Agency Decision
On appeal of an executive-branch agency decision, an appellate court reviews the agency’s decision, any intervening circuit court judgment notwithstanding. Therefore, the appellant is the party appealing the decision, who is not necessarily the same party appealing the judgment. Agency decision favored licensing agency over licensee, so licensee is the appellant, notwithstanding licensing agency’s filing of the notice of appeal. Rules require licensee—as appellant—to file appellant’s brief, which did not happen, and allow dismissal for failure to do so. Dismissal preserves nothing for appellate review, requiring affirmance of the agency’s decision, and vacatur of the circuit court’s judgment. 
Patricia Jean Ritchie vs. Lori Gordon, Appointing Authority Missouri Department of Natural Resources
(Overview Summary)
Missouri Court of Appeals, Western District - WD83424

Appellant’s Noncompliant Brief Requires Dismissal
After three amended briefs, appellant failed to comply with rules governing statement of facts, points relied on, and argument, requiring appellate review to include the Court of Appeal’s own construction of support for appellant’s challenges to the circuit court’s ruling. That would make the Court of Appeals into appellant’s advocate. Dismissed.  
In the Estate of: John Fingal Allen, III a/k/a Jack Allen.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108484

Appellant’s Noncompliant Brief Requires Dismissal
Court of Appeals must remain neutral and would have to put its own spin on appellant’s case to resolve the appeal, because appellant has not framed challenges as required by rules governing statement of facts, points relied on, and argument. Appellant “fails to show the interaction between the relevant principles of law and the facts of this particular case, requiring us . . . to hypothesize about his argument.” Dismissed.
Robert Keith Bennett, Appellant, vs. Lucretia Sharon Taylor and Dajah Renee King, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108335

No Appeal Without Final Judgment
Statute and rules allow an appeal only for a judgment that disposes of the last claim, or at least one claim with the circuit court’s certification, both of which are subject to appellate court review. To resolve a claim means resolving all theories of relief on a set of related “operative” allegations. The parties disputed whether grounds for denial of rezoning were authorized by law, and the circuit court’s judgment addressed some of those grounds, but not all. Therefore, the judgment addressed only some theories for relief on the facts alleged, but left unresolved other theories for relief on those same facts. Such a judgment is not final. Dismissed.
Energy Market 709, LLC, Respondent, vs. City of Chesterfield, Missouri, et al., Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108244

Civil

Video Appearance Okay
Statute expressly allows any person to appear in any civil non-jury proceeding by “two-way audio-visual communication, including but not limited to closed circuit television or computerized video conferencing ... between the court and the person [.]” Circuit court did not abuse its discretion in denying appellant’s motion for continuance on the grounds of a guardian ad litem’s appearance in accordance with that statute.
IN THE INTEREST OF C.L.F. and S.A.R. GREENE COUNTY JUVENILE OFFICE, Respondent vs. K.J.R., Appellant
Missouri Court of Appeals, Southern District - SD36746 and SD36748

Aspirational Trial Setting Does Not Bar Transfer 
Statutes provide venue for tort actions in the county where defendant’s conduct first injured plaintiff, and rules do not alter the statutes’ provisions, so permissive joinder cannot add plaintiffs from another venue, even against the same defendant in the lawful venue for the action joined. A writ of prohibition may bar all proceedings in an improper venue except transfer to a proper venue. Statute bars transfer for cases set for trial as of a date certain, but plaintiff’s trial setting was merely "initial" and "aspirational [,]" so transfer will not delay trial at the last minute. 
State ex rel. Janssen Pharmaceuticals, Inc., Johnson & Johnson, and Janssen Research & Development, LLC, Relators, vs. The Honorable Michael Noble, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98222

Denying a Motion to Reopen the Record Was an Abuse of Discretion
In an action to terminate parental rights, parent did not appear for trial, and counsel for parent did not know why. Counsel for parent’s motion for continuance did not comply with rules, so circuit court denying the motion for continuance did not constitute an abuse of discretion. A later motion to re-open the record made with an explanation of illness on the day of trial, was due consideration on its merits, and denial without such consideration was an abuse of discretion because “[t]he termination of parental rights is an exercise of awesome power [.]”
In the Interest of: T.M.L., K.A.L., and K.M.L.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108807

Settlement Not Shown
Settlement is a defense to an action for fraud, and is subject to specific performance, but requires clear and convincing evidence of the parties’ objective actions—not their subjective intentions—to show the elements of a contract. Evidence that the parties passed an underlying action for settlement did not show that the parties settled the underlying action, because there was no evidence that the parties agreed to be bound by a verbal contract, or the terms of such contract. Without evidence of a settlement, there can be no finding of a personal guaranty of that settlement. Judgment for defendant on settlement, personal guaranty, and specific performance reversed.
Disalvo Properties, LLC, Respondent/Cross-Appellant, vs. Donna Mae Hall as Personal Representative of the Estate of Gary L. Hall, and Donna Mae Hall, Successor Trustee of the Gary L. Hall Revocable Living Trust Dated November 12, 1989, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108743

Claim of Juror Misconduct Denied
The right to a fair trial does not guarantee a perfect trial, so appellant must show prejudice even from juror misconduct, and juror misconduct does not include a “juror’s motives, reasoning, beliefs, or mental processes” in reaching a verdict supported by the evidence. The only exceptions are evidence gathered outside the trial and bias against the “ethnic, racial, or religious” identity of a party. Juror expressions of “common knowledge and beliefs during deliberations” did not show concealment during voir dire. The evidence supported a finding that plaintiff’s injury was the result of a cause other than a “fender-bender” with defendant.
Donald J. Marcks, Appellant, vs. Edward W. Wilson, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108488

Jurisdiction Plenary, Authority Limited
Missouri Constitution gives circuit court plenary jurisdiction over all matters civil and criminal, but statutes and rules set forth the conditions for circuit court’s authority. Authority of a circuit court over a party or claim disappears on voluntary dismissal of that party or claim because voluntary dismissal leaves nothing on which to exercise authority. Circuit court did not err in denying petitioner’s motion to reinstate petitioner’s voluntarily dismissed action. On a petition for release from confinement as a sexually violent predator, no evidentiary hearing is required when the petition is frivolous, meaning that the petition alleges no facts that would show grounds for release.
In the Matter of the Care and Treatment of D.E.K.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108158

Contract

Action Filed Too Late
Federal statutes toll the running of State law claims filed in federal courts except those dismissed under the Eleventh Amendment. The Missouri statute of limitations for an action in contract is five years from “when the evidence was such to place a reasonably prudent person on notice of a potentially actionable injury.” That occurred for plaintiff’s employment contract when plaintiff had notice that his employment was ending, because “he reasonably should have known that an injury and substantial damage may have occurred [,]” not when that contract expired. Expiration of the contract may have made damages more ascertainable but knowledge of all damages is not necessary to start the time for filing. Savings statute, extending the limitations period for a year, applies only to claims timely filed to begin with. Equitable tolling requires proof that plaintiff diligently pursued his rights but faced extraordinary circumstances, which plaintiff did not describe in plaintiff’s suit in federal court where defendant was immune. Circuit court did not err in dismissing plaintiff’s action for untimely filing.  
Rylan Brantl vs. The Curators of the University of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83667

Criminal

No Free Punch
On a charge of assault in the second degree, the elements include recklessness, which the State showed with evidence that defendant, a 260-pound mixed martial arts fighter, struck a booking officer on the way back to a holding cell. That conduct disregarded the risk that victim would suffer—the “severe injuries, which caused permanent and serious damage” that resulted. “[T]here is no 'one free punch' rule of law.”
STATE OF MISSOURI, Plaintiff-Respondent vs. JOSHUA ROLAND GILLEY, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36589

Resisting Arrest Not Enhanced for Probation Violation
Defendant was on parole for a felony, defendant’s parole officer issued a warrant for a violation, and defendant resisted that arrest. The State charged defendant with resisting arrest, which statutes enhance to a felony if the arrest is: for a felony, for failure to appear for a felony warrant, or on a warrant for a probation violation. No enhancement occurs when the arrest is on a warrant for a parole violation, and arrest on a parole violation is not an arrest for a felony. Therefore, circuit court did not err in granting defendant’s motion for judgment notwithstanding the verdict, and entering a judgment finding defendant guilty of resisting arrest as a misdemeanor only. 
STATE OF MISSOURI, Plaintiff-Appellant v. SHANE WILLIAM JOHNSON, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD36661

Multiple Acts Case Verdict Director Okay
Circuit court did not abuse its discretion when it overruled an objection to witness’s testimony about the indicia of credibility in victims of sexual abuse generally because the witness did not address victim’s credibility specifically. When appellant’s witness testified that victim suffered sexual abuse, without objection from appellant, circuit court’s decision not to intervene sua sponte did not constitute plain error. On charges of multiple acts, multiple verdict directors were “unlikely to serve defense counsel’s strategy of presenting [victim] as not credible, and ran the substantial risk of simply reminding the jury of pervasiveness and magnitude of [defendant]’s acts [.]” Therefore, when a verdict director addresses all alleged instances indistinguishably, the decision to make objection can be sound strategy, and no plain error shown in circuit court.
STATE OF MISSOURI, Respondent v. JAMES DARRON BEERBOWER, JR., Appellant
Missouri Court of Appeals, Southern District - SD36437

Post-Conviction

Claim of Ineffective Counsel Waived
Admitting to facts waives proof of those facts, so admissions of facts supporting an enhanced sentence by movant waived any challenge to the sufficiency of evidence supporting an enhanced sentence, after. Movant’s endorsement of plea counsel’s assistance in procuring probation bars movant from claiming that plea counsel was ineffective.
Antonio D. Jones, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108508

Tax

Sales Tax Due on Rentals
Missouri Constitution freezes the scope of the sales tax levy as of 2015. As of 2015, statutes imposed a tax on gross receipts from the rental of personal property. The transfer of such property—including “the delivery, rental, labor, and supplies” associated with rental of appellant’s portable toilets—was not incidental to any other service, but part of the rental service. Appellant cleaned during the rental but did not separately bill for that service, so appellant did not show that any amount for cleaning was not part of its gross receipts for rental. Missouri Supreme Court affirms the decision of the Administrative Hearing Commission assessing sales tax on appellant’s gross receipts.
John Charles Gott, d/b/a Gott's To Go, Appellant, vs. Director of Revenue, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98444