Case summaries for Dec. 23 - Dec. 29, 2021
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.
City Employee Must Exhaust Administrative Remedies for Termination
Appellant sought declaratory judgment and an injunction to rescind a communication from a prosecuting attorney, alleging that the communication resulted in his termination from employment, after an undescribed hearing. That hearing, the “cryptic” record suggests, was a part of a contested case, for which the statutory remedy is review of the termination decision. Appellant did not show exhaustion of administrative remedies. Exhaustion of administrative remedies does not include appellant’s allegation that the administrative remedy is futile. Dismissed.
Christopher Heatherly, Appellant, vs. Michael Wood, in his Official Capacity as Prosecutor for Lincoln County, Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED109559
Statute Applied Retroactively
A new statute bars prosecution for drug possession when defendant overdoses on a controlled substance and calls for medical help. That statute applies to events occurring before the statute’s effective date. Savings statute, preserving pre-amendment statutes for prosecution despite amendments, does not apply to new statutes. A new statute can constitute an amendment to existing statutes, but only if that intent appears, which it does not. Dismissal of drug possession charge affirmed.
State of Missouri, Appellant, vs. Joseph E. Vaughn, Respondent.
Missouri Court of Appeals, Eastern District - ED109264
Missouri Sentence Expired in California
When relator escaped from Missouri incarceration to California, statutes addressing time served before delivery to the Department of Corrections did not apply because relator escaped after delivery to the Department of Corrections. California incarcerated relator for California offenses, and tried to send relator back to Missouri, but Missouri would not take relator despite a statutory duty to do so. Statutes in effect at the time of the escape provided that a sentence could expire while relator was at large, and no law suspended relator’s sentence during escape. Therefore, relator’s Missouri sentence expired in California, and the circuit court did not err in issuing its writ of habeas corpus. On the grant of a writ of habeas corpus, the State’s remedy is a writ of certiorari. The writ of certiorari issues as a matter of right, but does not address factual issues, only questions of law: whether circuit court exceeded its authority or abused its discretion.
State of Missouri, ex rel. Eric S. Schmitt vs. The Honorable Kevin Crane, Circuit Judge of Callaway County, and Megan Morse, Circuit Clerk, Callaway County Circuit Court
Missouri Court of Appeals, Western District - WD84866
Findings on Appellant’s Allegations Are Sufficient
Circuit court was free to accept or reject any party’s evidence on the allegations supporting appellant’s motion for contempt. On a motion to bar relocation, considerations include child’s best interest, and findings of fact on that consideration need address only the issues relevant to that consideration. “And, importantly, the court addressed all the matter raised by [appellant].” Premature relocation is a factor in, but is not determinative of, custody; and supports, but does not require, an award of attorney fees.
Candice Merriweather, n/k/a Candice Schuval, Respondent, vs. Nathon Chacon, Appellant.
Missouri Court of Appeals, Eastern District - ED109385
Third-Party Custody Denied
Statutes governing third-party custody required appellant to rebut the presumption that child’s welfare was best served by custody in the biological parent. Appellant’s rebuttal evidence has a counterweight in appellant’s unclean hands, including preventing communications between parent and child, interfering with court-ordered visitation, and otherwise disrupting the parent-child relationship.
K.T.L. by Her Next Friend, K.L.., and K.L. Individually, Respondents, vs. A.G., Appellant.
Missouri Court of Appeals, Eastern District - ED109375
Standard for Effective Counsel Claims Discussed
In a proceeding to determine sexually violent predator status, confinement can result, so effective counsel is due. The standard for such a claim requires an examination of the record at trial and the allegations on appeal, which may determine the claim or require a remand. Under the meaningful hearing standard, waiver of jury trial did not prevent a meaningful hearing. Under the Strickland standard, appellant does not allege that substandard performance prejudiced appellant.
In the Matter of the Care and Treatment of Justin Haggerman, a/k/a Justin C. Haggerman, a/k/a Justin Cole Haggerman vs. State of Missouri
Missouri Court of Appeals, Western District - WD84144
Quasi-Judicial Immunity Applied
In assessing whether a petition describes facts on which the law offers relief, a court will examine attachments to the petition, but not to the motion for dismissal, because a motion to dismiss looks only at the petition, and not anything outside the petition. The Common law doctrine of judicial immunity attaches, not to an office, but to the performance of an official function. Those functions equally merit protection when performed by judicial delegees. Therefore, quasi-judicial immunity protects a neutral appointed, and exclusively supervised, by the family division of circuit court. That includes persons exercising the court’s fact-finding function as required or authorized by law, like a guardian ad litem, and a psychological evaluator. The psychological evaluator’s appointment occurred with the parties’ agreement, and confers quasi-judicial immunity even if not authorized, because the circuit court’s order was facially valid. No characterization of the psychological evaluator’s relationship with appellant can alter that result, but, in any event, appellant did not support application of common law malpractice and merchandising practice statutes. Failure to appeal dismissal on an alternative basis waives appeal of that basis for dismissal. A dismissal without prejudice is not final for appeal. A dismissal, when not denominated as with prejudice, is without prejudice unless different pleading can cure the grounds for dismissal. But no different pleading could cure the grounds of dismissal, because appellant could not add any allegations that described any basis for respondents’ liability, so the dismissal is effectively with prejudice.
Evita Tolu, Appellant, v. James Reid, Ph.D., James Reid, Ph.D., LLC, Jennifer Webbe Van Luven, Fitzgibbons Psychological Associates, and Elaine Pudlowski, Respondents.
Missouri Court of Appeals, Eastern District - ED109721
No Recovery of Overpaid Rent from Collection Assignee
The assignee of a claim is subject to all defenses applicable to the assigned claim, but is not subject to counterclaims unrelated to the assigned claim. The claim assigned by the landlord was the collection of rents due, so the assignee was subject to tenant’s counterclaims only as a defense, and not beyond. Thus, tenant’s overpayment constituted grounds for an off-set against amounts owed to, but not an award of money damages from, assignee. “[B]ecause [assignee] never actually held the excess funds to which the circuit court found [tenant] was entitled, [tenant]’s counterclaim for set-off could only be used defensively, but not offensively against [assignee].”
J & M Securities, LLC, Appellant, vs. Nikki M. Kennedy, Respondent.
Missouri Court of Appeals, Eastern District - ED109593
Appeal Bond Required
Statutes require that a bond accompany an uninsured employer’s appeal, either from an ALJ to the Labor and Industrial Relations Commission, or from the Commission to the Court of Appeals. Employer’s allegation, that employer received no notice of anything but the final award, is irrelevant to that requirement. Court of Appeals dismisses the appeal.
Troy L. Greig vs. Jonathan McCaleb
Missouri Court of Appeals, Western District - WD84430