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Case summaries for Dec. 25 - Dec. 30


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.

Appellate | Attorneys | Civil | Employment | FamilyMental Health |
Personal Injury | Post-Conviction | Probate | Workers' Compensation


Record Refutes Challenges to Judgment
The circuit court’s judgment dismissed the petition on a basis supported in the motion to dismiss but, even if the judgment did not rely on such basis, an appellate court would sustain the judgment on any basis supported in the motion. Appellant’s “motion to amend specifically stated the [j]udgment should be entered with prejudice” so appellant did not preserve any argument that the judgment should be without prejudice. Circuit court did not err in denying appellant’s motion for an amended judgment, acknowledging appellant’s right to challenge respondent State Auditor’s subpoena, because the judgment already makes that acknowledgement.
Clay County Commission vs. Nicole Galloway, Auditor of the State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD83580


Malicious Prosecution, Abuse of Process, and Malpractice Negated
In response to a complaint in United States District Court, naming plaintiff in his individual capacity, plaintiff claimed malicious prosecution and abuse of process. Malicious prosecution includes, as elements, malice and the absence of probable cause for bringing the action; and the elements of abuse of process include a perverse use of the process. Plaintiff must establish those elements as to all theories in the complaint, so probable cause for any theory negates those elements. On a motion for summary judgment, defendants established undisputed facts showing their reasonable belief in the complaint’s allegations, which supported a theory of plaintiff’s liability in his official capacity, so granting summary judgment for defendants was not error. Defendants need not negate any further elements of either claim, including whether defendants had a wrongful purpose for abuse of process. On co-defendant clients’ cross-claims of malpractice against co-defendant lawyers, the elements include negligence and resulting damages. Negligence is negated by lawyers’ establishment of undisputed facts showing probable cause for the complaint. Resulting damages have no basis in clients’ allegations beyond conjecture.
Paul Vescovo vs. Robert D. Kingsland, Jr. and Dempsey & Kingsland, P.C., Chad Gardner and Law Office of Chad Gardner, Linda Jepsen vs. Lauren Maberry
(Overview Summary)
Missouri Court of Appeals, Western District - WD83324, WD83335 and WD83349


Motion for Summary Judgment Leaves Material Facts in Genuine Dispute
In an action to enforce settlement, on a motion for summary judgment, movant included two documents naming different sums. Each party claimed that a different document constituted a settlement offer, movant the first and non-movant the second. Non-movant’s response to the motion included a third letter showing acceptance of the second letter, raising a genuine dispute as to which of the first two letters constituted the offer of settlement, which was material to the claim. The state of the record therefore precluded summary judgment, circuit court erred in granting the motion, and Court of Appeals reverses and remands.  
Missouri Court of Appeals, Southern District - SD36707


Right to Sue Procedure Explained
Statutes provide that, on a claim of employment discrimination, a claimant must first file the claim with the Missouri Human Rights Commission. The Commission then investigates the claim by means within its discretion, which need not include employer’s response, and may conclude without pursuing legal action on the claim. If the Commission does not pursue legal action on the claim, it issues claimant a right-to-sue letter. No formal hearing is required before the Commission determines whether to issue the right-to-sue letter, so that determination is a non-contested case, in which no formal hearing need occur until an appeal in circuit court. If 180 days pass without completion of the investigation, and claimant requests, a right-to-sue letter must issue. The mandatory issuance is not a determination on the merits of a claim and, even if it were, a determination on a discrimination theory does not require the same determination on a retaliation theory. Adherence to statutory procedure leaves only constitutional challenges to the statute itself, on the theory that due process required a contested case, which claimant did not pursue. On a petition for writ of mandamus, seeking to mandate further investigation by the Commission, circuit court did not err in granting a motion to dismiss.  
State of Missouri ex rel. Stephanie Dalton vs. Missouri Commission on Human Rights, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD83336


Increased Expenses Favor Modification of Child Support
Court of Appeals reviews multifarious points ex gratia. On a motion to modify child support, circuit court’s calculation of appellant’s monthly income by hours per month times wage per hour was not against the weight of the evidence despite evidence supporting other calculations. Substantial evidence supported circuit court’s findings on expenses for child care, and appellate courts need not consider evidence to the contrary. Costs for child’s therapy and tutoring had support in the record, and the circuit court’s judgment expressly removed any liability duplicative of appellant for those expenditures. Disparity of income, and appellant’s misconduct—including failure to disclose charges related to driving while intoxicated—pending the motion, supported an award of attorney fees against appellant.    
Lisa Langston vs. Jonathan Langston
(Overview Summary)
Missouri Court of Appeals, Western District - WD82954

Mental Health

Shelter Had No Duty to Seek Commitment
Statute provides that a “mental health coordinator” has a duty to seek involuntary commitment for someone observed to present a “likelihood of serious harm.” Those terms have statutory definitions, and plaintiff did not allege facts within those definitions, so the petition’s allegations are merely conclusory statements that, even assuming them to be true, do not describe a duty of defendant to decedent. Nor did the petition describe a common law duty between defendant and decedent; decedent’s death, from being struck by a drunk driver while walking down a road, was not foreseeable and defendant had no duty or power to control decedent’s conduct. Assumption of such a duty did not occur from Defendant’s provision of shelter to decedent. Judgment dismissing petition for failure to state a claim affirmed.
Lynetta Scales, Appellant, vs. Stacie Whitaker, Defendant, and Places for People, Incorporated, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108785

Personal Injury

Sovereign Immunity Waived, and Correctly Instructed, for Dangerous Property
In an action against the State, plaintiffs must show facts on which the statutes waive sovereign immunity, which include a dangerous condition of property known to the State in time to fix it. That element had support in evidence that stairs to courthouse basement were unaltered since 1854. The approved instruction, submitted to the jury, correctly stated that law without requiring the jury to find that the State’s control of property was exclusive.
PAMELA S. ALLEN and KELLY D. ALLEN, Plaintiffs/Cross-Appellants v. STATE OF MISSOURI, 32nd JUDICIAL CIRCUIT, Defendant/Cross-Appellant CAPE GIRARDEAU COUNTY and CITY OF CAPE GIRARDEAU, MISSOURI, Defendants/Respondents
Missouri Court of Appeals, Southern District - SD36319 and SD36328


Escape Rule No Bar to Bazell Relief
Movant was on probation when case law held that movant’s offense was a misdemeanor and not a felony, but circuit court sentenced movant for a felony, so movant’s sentence exceeded the law’s maximum. The escape rule bars relief from any judicial error occurring before movant escaped justice, but error in sentencing occurred after movant escaped justice, so the escape rule does not bar relief.   
Daniel C. Harmon, Movant/Appellant, vs. State of Missouri, Respondent/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108133-01

Decisions to Make No Objection Okay
A meeting of the prosecutor and witnesses resulted in no discussion of anything material to the defense so failing to disclose that meeting did not constitute a Brady violation. When trial counsel’s decision to call, cross examine, or impeach a witness constitutes a choice among reasonable trial strategies, trial counsel is not ineffective for not choosing a different reasonable trial strategy. On a charge of felon in possession of a weapon, defendant has the right to stipulate to felony status without naming the felony, but naming the felony was reasonable trial strategy to show the felony was not violent. On charges of endangering the welfare of a child, a licensed professional counselor’s testimony was admissible to show that defendant’s violence harmed children, and objection would have been meritless, so trial counsel’s decision to make no such objection did not show that trial counsel was ineffective. Failure to object to a closing argument supported by the evidence has “myriad” strategic grounds and nothing shows that any were lacking.
Ricky John Harding, Jr., Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108113


No Standing to Appeal
Appellant grandchild seeks rehearing or transfer, after issuance of an opinion from the Court of Appeals, affirming circuit court’s judgment of incapacity and appointing a guardian for grandmother. Grandchild challenges the effectiveness of appointed counsel but, even if appointed counsel were ineffective, that does not aggrieve appellant. Absent aggrievement, appellant has no standing to appeal, so the Court of Appeals denies rehearing or transfer.  
IN THE MATTER OF PEGGY GONSALVES, an incapacitated and disabled person
Missouri Court of Appeals, Southern District - SD36795

Workers’ Compensation

Crash Was a Driving Accident, Not a Breakfast Accident
Statute bars compensation for injury resulting from “risk unrelated to the employment to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life.” Risk means activity. That exclusion, like all workers’ compensation statutes, is subject to strict construction. Claimant choked on his breakfast, passed out, and crashed his work van while on his way to a work assignment. Breakfast, choking, and passing out are unrelated to the employment and part of normal nonemployment life, but driving the van to a work assignment is not, and crashing the van caused the injury. Driving the van while having breakfast violated an employer safety rule, for which statutes penalize claimant, but do not remove driving from the course of employment.
GARY BOOTHE, JR., Employee-Appellant v. DISH NETWORK, INC., Employer-Respondent
Missouri Court of Appeals, Southern District - SD36408