Case summaries for December 20-26, 2024

Appellate | Civil | Criminal | Contract | Family | Insurance | Local Government | Post-Conviction

Appellate

“Minimalistic” argument insufficient 
Judgments were presumed correct, and appellants had the burden to show reversible error, which required argument with references to the record and citations to authority. Instead, for one point relied on, appellant offered “the applicable standard of review, a short summary of the principles of law relating to hearsay, and a three-sentence argument [.]” And for the other point relied on, appellant was “simply stating the relevant case law and presenting her argument in four sentences [.]” The Court of Appeals denied both points and affirmed the judgment. 
(Overview Summary) 
Dr. Shereen Kader, Appellant, vs. Harris Stowe State University, and Board of Regents of Harris Stowe State College, Respondents. 
Missouri Court of Appeals, Eastern District - ED112158

Civil

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 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 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

Standing shown for appeal from revival of consent judgment 
Statute allowed the revival of an unsatisfied judgment. In an action for workers’ compensation, the parties entered a settlement agreement, later registered as a judgment with the consent of appellant employer. Respondent employee sought revival of the judgment, which the circuit court granted. Even though that judgment was a consent judgment, the employer was secondarily liable, so the employer had standing to appeal the order reviving the judgment. Employer performed as provided in the judgment, the parties expressly left the remaining matter “open,” and only the Labor and Industrial Relations Commission had authority over it. Therefore, the judgment was satisfied, so the circuit court erred in reviving the judgment. The Supreme Court entered its order denying the employee’s motion to revive judgment and the successful appellant could not be liable for a frivolous appeal. 
(Overview Summary) 
Joe David Hudson, Respondent, v. Joplin Regional Stockyards, Inc., Appellant. 
Supreme Court of Missouri – SC100659

Preliminary writ had to precede permanent writ 
Plaintiff procured an award from defendant, whose liability was subject to the State Legal Expense Fund, which appellants represented. The rule governing the writ of mandamus provided for the issuance of a preliminary writ before ruling on a permanent writ and the circuit court issued only a permanent writ. The absence of a preliminary writ resulted in inadequate notice and opportunity to be heard, which constituted reversible error, so the Supreme Court vacated the judgment and remanded for further proceedings. 
(Overview Summary) 
Vernell Beach, By and Through His Natural Mother and Legal Guardian, Yolanda Walton, Respondent, v. Kenneth Zellers, Commissioner, Office of Administration State of Missouri and Andrew Bailey, Attorney General, State of Missouri, Appellants. 
Supreme Court of Missouri – SC100455

No credibility determinations on summary judgment 
Rule instructed circuit courts to freely grant motions to amend petitions. When ruling on such motions, several factors provided guidance to circuit courts’ exercise of discretion, and “A flat denial with no justifying reason ‘is not an exercise of discretion; it is merely abuse of that discretion.’” An amendment would have added an alternative theory of causation, with no prejudice to defendant, that was relevant to defendant’s pending motion for summary judgment. The Court of Appeals reversed the summary judgment for defendant and remanded to the circuit court with instructions to grant the motion to amend. 
(Overview Summary) 
Addie Smith, Appellant, v. Zion Travelers Missionary Baptist Church, Respondent. 
Missouri Court of Appeals, Eastern District - ED112647

More than one source raised a genuine dispute 
Rule allowed summary judgment when the moving party established facts on which the law entitled that party to a favorable judgment, and the responding party failed to raise a genuine dispute as to those facts. A genuine dispute meant more than one plausible allegation supported by evidence. Plaintiff sued for a breach of contract, defendant moved for summary judgment citing a release, and plaintiff replied with evidence of forgery. Inconsistent testimony from one witness did not create a genuine dispute, but testimony from more than one witness did. A “bare statement of ‘yeah’ and ‘yes sir’ in response to the question of ‘is that your signature?’ is insufficient to disprove the fraud allegations when there is other contradictory evidence in the record to support [responding party]’s claim that the signature is fraudulent.” 
(Overview Summary) 
The Wrecking Crew, Inc., Appellant, v. OHM Hotel Group, LLC, et al., Respondents. 
Missouri Court of Appeals, Eastern District - ED112639

Criminal

Marijuana offense defined 
Constitutional provisions required expungement of any “marijuana offense.” The mere presence of marijuana in otherwise criminal conduct did not constitute a marijuana offense. Marijuana offenses included any offense that, but for the use, possession, cultivation, and distribution of marijuana would not be a crime.” Possessing a firearm was unlawful only because of the associated marijuana and therefore, was subject to expungement. The Court of Appeals reversed the judgment denying expungement and remanded the action with directions to expunge the conviction. 
(Overview Summary) 
C.S. vs. Missouri State Highway Patrol Criminal Justice Information Service; Lafayette Prosecuting Attorney 
Missouri Court of Appeals, Western District – WD86693

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 defendant’s statement as “going to go to the school and shoot all the kids up” supported a finding that 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 Court of Appeals affirmed the conviction. 
STATE OF MISSOURI, Plaintiff-Respondent v. SHANE HOWARD KEATHLEY, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD37766

Procurement of juvenile records explained 
On a claim of self-defense, the victim’s propensity for violence was relevant, so the defendant filed a motion to compel production of victim’s juvenile records. But the victim’s violent nature was subject to proof only by reputation evidence, not by specific acts. Therefore, the victim’s juvenile records were not relevant. And the statutes made juvenile court records confidential, subject to release only by order of a juvenile division judge, and subject also to an in-camera review by the circuit judge to weigh confidentiality against the right to a defense. To obtain such a review, the defendant had to allege outcome-determinative facts in such records, which the defendant did not. Therefore, the circuit judge at the defendant’s criminal trial did not err in denying a motion to produce those records. Evidence of a defendant’s uncharged crimes or bad acts was inadmissible to show a propensity to commit crimes, but was admissible when it consisted of an attempt to fabricate evidence, because such evidence showed consciousness of guilt. Therefore, the circuit court did not err in admitting a note that defendant drafted, while in juvenile custody, directing someone to provide a false alibi. The Court of Appeals affirmed the conviction. 
STATE OF MISSOURI, Plaintiff-Respondent vs. KEYMOND S. BROWN, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD38111

Evidence of other accusations barred 
The Rape Sheild statute barred evidence of “a victim’s prior complaint when it is inherently premised upon prior sexual conduct” and did not relate to “immediate surrounding circumstances of the alleged crime [,]” like earlier accusations of sexual contact. The proffered evidence did not directly contradict the allegations against the defendant, so due process did not require the circuit court to admit the evidence to guarantee a fair trial. A witness’s non-responsive answer referenced such an accusation, but the defendant did not cite the doctrine of curative admissibility, and that doctrine corrects mistaken impressions rather than expanding the incorrectly admitted testimony. And the defendant never showed that the accusations were false. Defendant showed no plain error in the factors that the circuit court considered in determining defendant’s sentence. The Court of Appeals confirmed the conviction. 
STATE OF MISSOURI, Plaintiff-Respondent v. FRANK CLIFFORD PARRY IV, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD38085

Contract

Breach of contract, no; fraudulent misrepresentation, yes 
On a claim for breach of contract, the elements included the existence of an enforceable contract, of which the elements included mutuality of obligations, so indeterminate obligations created no contract. Plaintiff’s testimony showed that plaintiff and defendant began negotiations but never agreed on their respective rights and duties. Plaintiff made no submissible case for breach of contract and the circuit court erred in denying defendant’s motions for directed verdict and judgment notwithstanding the verdict. The Court of Appeals reversed the circuit court’s award of specific performance. But plaintiff showed that defendant successfully intended plaintiff to rely on a false promise of fifty percent ownership in a business to plaintiff’s detriment. The Court of Appeals affirmed the circuit court’s award of damages for fraudulent misrepresentation. 
(Overview Summary) 
Andrew Niemeier, Respondent, v. Charles Russell Williams, III and Green Peak Capital Partners, LLC, Appellants. 
Missouri Court of Appeals, Eastern District - ED112584

Family

Custody award and property division affirmed 
Circuit court determinations on child custody were due even more deference than determinations in other cases. In determining custody, circuit courts had to apply factors set out by statute for determining the child’s best interests, but only as made applicable by the evidence, and did not have to discuss factors not at issue. The circuit court’s “meticulous” findings of fact addressed the applicable factors. The record showed that the circuit court carefully weighed the evidence and its judgment was not against the weight of the evidence. The record supported a range of valuations for the parties’ real property ands the circuit court’s chosen amount was within that range. 
(Overview Summary) 
Aylicia D. Mickow, Appellant, vs. Cody F. Mickow, Respondent 
Missouri Court of Appeals, Eastern District – ED111927

Insurance

Uninsured motorist coverage limited to maximum, not minimum 
The judgment from the insured’s underlying personal injury action in which the insurer did not intervene, and which did not determine insurer’s liability to the insured, did not estop the insurer from litigating coverage with the insured. On motions for summary judgment, issues not raised in the motion but raised in reply suggestions were preserved for appellate review. Plaintiff insured’s automobile policy unambiguously limited uninsured coverage by expressly referencing limitations on liability. Those limitations included an exclusion for any amount over the statutory maximum and did not constitute a cap on coverage contrary to statutory minimums. Even if insured had not waived pre-judgment interest, a motion to amend judgment was necessary to preserve the matter for appeal. The Court of Appeals affirmed the judgment. 
(Overview Summary) 
Robert Coffin vs. Farm Bureau Town & Country Insurance Company of Missouri, et al. 
Missouri Court of Appeals, Western District – WD87120

Kansas one-action statute barred claim for contractual indemnity 
Insurance producer procured policies from insurer for insured, but insurer had failed to obtain certification from a federal authority for the policies. So insured sued the producer for negligence in Kansas and the producer sued insurer for indemnity in Missouri. But a Kansas statute required a joinder of all parties and all claims related to one claim of negligence to be joined in one action, and barred any other claim, so the Kansas judgment barred the Missouri action. Without an allegation that the Kansas action had determined insurer’s liability, producer’s petition failed to state a claim, and the circuit court did not err in dismissing the petition. The Court of Appeals affirmed that judgment. 
(Overview Summary) 
Insurance Professionals, INC. vs. Progressive Casualty Insurance Company 
Missouri Court of Appeals, Western District – WD86593

Limited right of intervention for a stay explained 
“Insurers with good faith coverage questions should file a declaratory judgment action” “in the same court as the tort action whenever possible” “simultaneous with the underlying tort action and seek a stay of the tort action until the declaratory judgment action is resolved.” The elements of intervention in an action as a matter of right included a “direct” interest at stake in that litigation. In the underlying personal injury action, the insurer filed a motion for intervention to seek a stay of litigation pending a declaratory action in federal district court on insurer’s duties to defend and indemnify. Those duties carried a right to defend the insured, and to control the litigation, which constituted a direct interest in the litigation. The Supreme Court vacated the order denying intervention and remanded for further proceedings. 
(Overview Summary) 
Jeromy McCrackin, Respondent, vs. Tynan Mullen, Respondent, and Safeco Insurance Company of America, Appellant. 
Supreme Court of Missouri – SC100578

Local Government

Official immunity applied 
Circuit courts need not grant leave to file an amended petition that did not cure the defects of the initial petition. When suing a public employee, a plaintiff’s petition had to allege facts showing the inapplicability of official immunity. Official immunity barred any action against a public employee alleging negligence in the performance of a discretionary duty. The discretionary duties of the Collector of Revenue included setting the redemption amount for a tax-sold property, in part by determining “reasonable and customary” costs. A conclusory allegation to the contrary did not cure the petition of its failure to state a claim. The public duty doctrine negated any duty from defendant to plaintiff when the plaintiff claimed a duty, discretionary or ministerial, that defendant owed to the general public. Conclusory allegations of a special, direct, and distinctive duty to plaintiff did not cure that defect, either. Official immunity did not apply to contract claims. Plaintiff’s petition claimed promissory estoppel but negated the element of an inadequate remedy at law by praying for damages as a remedy for its tort claims. 
(Overview Summary) 
Physicians Choice Wellness Development, LLC, Appellant, vs. Mark R. Devore, Respondent. 
Missouri Court of Appeals, Eastern District – ED112340

Post-Conviction

Entry of appearance defined 
Rules started the time to file an amended at counsel’s entry of appearance, which happened when counsel filed a written entry of appearance, not earlier, when counsel e-filed a motion without counsel’s signature, so the amended motion was timely. Impeachment evidence, that victim also accused someone else of sexual assault, was inadmissible under the Rape Sheild Statute. An argument otherwise would have been meritless. Choosing against such evidence was a sound strategy because it avoided sympathy for the victim. The sentence as spoken was life without parole as defined by statute, which qualified the exclusion of parole, while the sentence as written was simply life without parole. Defendant moved an order nunc pro tunc to conform the written sentence to the spoken sentence, but the circuit court denied that motion, which was error. The Court of Appeal reversed and remanded the judgment to correct the sentence nunc pro tunc. 
(Overview Summary) 
Salvador Tolentino-Geronimo vs. State of Missouri 
Missouri Court of Appeals, Western District – WD86603