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Case summaries for Dec. 23 - Dec. 29, 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.

Civil | Criminal | Employment Security | Personal Injury | Post-Conviction | Utilities


Default Judgment Stays in Place  
Appellate courts defer to circuit court’s determinations of credibility, and favor a ruling that sets aside a default judgment, but rule provides that default judgment is set aside for good cause and a meritorious defense, and the absence of either element is fatal to a motion. Respondent’s motion offered support for neither element, because respondent’s unverified pleading does not support allegations of good cause, and respondent pleaded no meritorious defense. Circuit court abused its discretion in vacating the default judgment. Vacatur reversed.  
Endless Distribution, LLC vs. Lake Breeze Farms, LLC  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85379


Lifetime Sex Offender Registration for Federal Registrants Case Transferred 
The elements of burglary in the first degree include unlawful presence “for the purpose of committing an offense [,]” not the specific intent to take the items eventually stolen. The evidence supported an inference that defendant intended to steal something in general, not a specific target, so the Court of Appeals affirms defendant’s conviction. Defendant also failed to update his address for sexual offender registration. Missouri statute required registration, with no expiration for that requirement, for any person “required to register under ... federal ... law.” Federal law required defendant to register, but whether lifetime registration is required is the subject of transferred cases representing a split among the Court of Appeals’ districts, so the Court of Appeals transfers the case to the Supreme Court. 
STATE OF MISSOURI, Plaintiff-Respondent vs. LONNIE STULL TILTON, JR., Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37339

Employment Security

Misconduct Did Not Motivate Discharge  
On appeal from the Labor and Industrial Relations Commission, appellant must raise an issue at each step of the administrative review process to ripen that point for judicial review. “A review of the record here reflects only furtive efforts on the part of [employer] to raise this [defense].” Appellant abandons a point when appellant fails to support it with argument that includes legal authority, which does not include a press release. Judicial review of a finding of fact for supporting competent and substantial evidence does not include a re-determination of witness credibility. Claimant’s testimony “fully supports” Commission’s findings of no claimant misconduct. Claimant misconduct is a defense to a claim for benefits only if it motivated the discharge and is irrelevant if discovered after the discharge.  
Amy J. Ruhl, Respondent, vs. K.A.S. Enterprises, LLC, Appellant, and Division of Employment Security, Respondent.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110399 

Change of Hearing Officer Unsupported  
Statute and regulations require an assigned hearing officer to draft a decision and allow a change from the hearing officer initially assigned if “for any reason, a hearing officer cannot complete disposition of an appeal [.]” But the Division of Employment Security re-assigned appellant’s claim from an appeals tribunal to a referee without reciting “any reason” for re‑assignment to the referee. A recitation of that reason is necessary for appellate courts to review the Labor and Industrial Relations Commission's compliance with law, especially when credibility determinations are dispositive. In adopting the referee’s decision, the Commission exceeded its authority, which constitutes constitutional grounds for reversal.  
Oliver Lienhard, Appellant, vs. Total Lock & Security, Inc., and Division of Employment Security, Respondents.  
(Overview Summary)  
Missouri Court of Appeals, Eastern District - ED110246 

Personal Injury

Future Medical Expenses Explained  
Plaintiff’s alternative theories against defendant appellant nurse were failure to inform co-defendant physician of plaintiff’s deteriorating condition, or failure to assess plaintiff, each of which had support in fact testimony and opinion testimony. “Even without expert testimony, Missouri courts have held that a factfinder may find that a nurse has breached the standard of care where the nurse fails to follow a doctor’s orders.” Plaintiff’s theories against the co-defendant, which were failure to respond to “various nurses[’]” communications adequately or at all, were not inconsistent with theories against appellant. Failure to communicate is like failure to warn, in that other information about the danger negates causation, but a submissible case on causation against appellant did not require a submissible case against co-defendant physician. So, even if the pleadings contained judicial admissions as to co-defendant, they would not benefit appellant. Statute requires the factfinder to express future medical expenses in present value, but does not require plaintiff to present evidence of such present value, and appellant did not offer evidence reducing plaintiff’s future damages to present value. Present value was not part of the instruction defining future medical damages, but the jury received the approved instruction, and appellant offered no evidence or argument supporting such instruction. Statute granted circuit court discretion to schedule payment of damages, and circuit court did not abuse that discretion in ordering a proportion of future medical damages, attributable to future medical expenses, paid at the time of judgment.  
Arlene Wickham vs. Jean Hummel  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85170 


Abandonment Inquiry Required  
Appointed counsel’s late filing of an amended motion raised a presumption of abandonment requiring the circuit court’s independent inquiry, which did not happen, so the Court of Appeals remands the action to circuit court to conduct that inquiry.  
Tarique Shelton vs. State of Missouri  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85013


Variance from Tariff Affirmed  
Courts review an order of the Public Service Commission for lawfulness and reasonableness. Statutes provide that any water company must operate subject to published tariffs that the Public Service Commission may approve, reject, or change. “Though a variance effects a tariff change with limited—instead of general—applicability, that alone does not remove ‘variances’ from the scope of ‘changes’ to tariffs the Commission is authorized to approve.” Because a Commission order of variance is authorized by statute, and the order applied the Commission regulation’s standard of good cause, the order is lawful. Reasonableness relates to the record, and an appellant must show “clear and satisfactory evidence” that the Commission’s “order is clearly contrary to the overwhelming weight of the evidence” as manifested by the absence of substantial and competent evidence, an arbitrary and capricious result, or an abuse of discretion. A discriminatory result is not unlawful when based on a classification supported by the record. The record supported a variance for the development, and appellant did not carry its burden to show otherwise.  
In the Matter of the Joint Application of Missouri-American Water Company and DCM Land, LLC, for a Variance from the Company's Tariff Provisions regarding the Extension of Company Mains vs. Office of Public Counsel  
(Overview Summary)  
Missouri Court of Appeals, Western District - WD85352