Case summaries for Feb. 19 - 25, 2021

Appellate | Consumer | Criminal | Evidence | Family | Personal Injury | Post-Conviction | Probate |  Real Estate

Appellate

Guides to Appellate Practice Available to All
Rules governing appellant’s brief are mandatory, and each district of the Court of Appeals offers guidance on appellate practice for the pro se litigant and the experienced practitioner, featuring: “detailed examples, illustrations, and explanations for precisely how the appellate brief is to be prepared for submission, including detailed discussions about all requirements for appellate briefing.” Appellant’s point relied on must cite the law under which the circuit court erred and evidence making that law applicable. Appellant must support such assertions with citations to governing law and references to the transcript showing evidence relevant under such law. Neither adverse rulings nor appellant’s other allegations showed bias in the circuit judge. Motion to strike appellant’s brief and dismiss appeal granted.
B.A. vs. Douglas Ready
(Overview Summary)
Missouri Court of Appeals, Western District - WD83895

Notice of Appeal Too Late
When circuit court denied an authorized after-trial motion, circuit court’s authority over the subject matter ended; later rulings were void, and judgment became final so the time to file a notice of appeal began. Notice of appeal was late, so Court of Appeals has no jurisdiction over the subject matter. Dismissed.  
In The Interest of: A.L.W.; Juvenile Officer vs. W.W.
(Overview Summary)
Missouri Court of Appeals, Western District - WD83750

Appeal Untimely
After an adverse judgment in associate division and circuit court’s denial of appellant’s petition from trial de novo, appellant filed a notice of appeal too late for vesting jurisdiction in the Court of Appeals, so Court of Appeals dismisses the appeal.
Jeff C. Tacina, Appellant, vs. Jo Ann Fabrics, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108515

Consumer

Competitor’s Private Action Under MMPA Discussed
Missouri Merchandising Practices Act is a remedial act and so is subject to interpretations that are liberal toward its remedies. The Act bars the retail sale of gasoline below a certain price and allows a private cause of action. In that action, statutes provide standing in any “person ... injured in his business or property in the relevant geographic market [,]” which includes a gasoline retailer’s stockholder like respondent. Respondent offered evidence that supported findings that he sustained damages for which the Act offers remedies, though indirectly, through the LLCs that directly sold gasoline; in competition with violators of the Act’s provisions; that each LLC was “in the relevant geographic market”; and that appellants intended the injuries they caused. “One is presumed to intend the natural and probable consequences of his or her acts and conduct.” Circuit court did not err in excluding evidence for which appellant failed to offer a foundation and Court of Appeals will not review that ruling when appellant made no offer of proof. “[T]hese materials are not properly before us because they were not before the [circuit] court.” And appellant failed to show any prejudice from the exclusion of such evidence because that evidence was irrelevant or cumulative. Circuit court did not abuse its discretion in denying remittitur of damages that were within the range supported by evidence of a diminished business value and a foreclosure judgment. The Act also requires an attorney fee award, which had support in respondent’s evidence, times the “lodestar amount and multiplier [.]”
Christopher Westmoreland, Respondent, vs. Midwest St. Louis, LLC d/b/a Gas Mart 6, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107787

Criminal

Double Jeopardy Unlawful Possession of Weapon and Controlled Substances
Double jeopardy bars cumulative punishment, unless statutes provide cumulative punishment, which they generally do. Statutes provide an exception for offenses specifically authorizing cumulative punishment, and for one offense wholly included in another, but unlawful use of a weapon by possessing a weapon “while also” unlawfully possessing a controlled substance is not within such exceptions. Double jeopardy also bars successive prosecution for any lesser included, for the same, or for any greater offense; pleading guilty to the greater offense of possessing both a weapon and controlled substances barred further prosecution for possessing controlled substances.   
State of Missouri, Appellant, vs. Gary Andrews, Jr., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108691

Probation Mandated
Statute provides that circuit court must grant probation, when it finds that an offender has successfully completed a 120-day program and makes no finding that probation is inappropriate, and such findings must have evidentiary support in the record. The evidence did not support a finding that probation is inappropriate because it consisted solely of “presentencing evidence (nature of the crime and prior probation) which, standing alone, is insufficient as a matter of law to support a finding that probation would not be appropriate.” Court of Appeals issues a permanent writ of mandamus.
STATE OF MISSOURI, Ex Rel. Michael Shawn Hunt, Relator v. THE HONORABLE MEGAN SEAY, Circuit Judge, Respondent
Missouri Court of Appeals, Southern District - SD36966

Evidence

Hearsay Admissible for Several Reasons
A hearsay objection at trial does not preserve a Confrontation Clause challenge on appeal. The Confrontation Clause is no bar to hearsay when the declarant is available for cross-examination. Evidence supported a finding that victim received a beating just before making out-of-court statements, which supported a conclusion that the statements were admissible as excited utterances. Appellant showed no prejudice from admission of the statements because the declarations were cumulative of other evidence. And appellant waived review of the ruling because appellant invited any error in admitting the statements through questioning of witness.
STATE OF MISSOURI, Respondent vs. TIMOTHY M. KLEESCHULTE, Appellant
Missouri Court of Appeals, Southern District - SD36200

Family

Reduction in Support for One Set of Children, Recalculation of Support for Another
Circuit court’s Form 14 included an amount for respondent’s children with a third party, and that amount changed after issuance of judgment , so appellant filed a motion to “reopen, correct, amend or modify the judgment or for a new trial.” Appellant met all requirements under rule governing a new trial for newly discovered evidence, and rule on amending a judgment allows further evidence, so no separate action to modify was necessary. Circuit court erred in denying appellant’s motion, so Court of Appeals revers, and remands for recalculation.
ANTHONY GROGAN, Petitioner-Respondent v. TINA MARIE GROGAN, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD36599

Personal Injury

Dangerous Condition of State Property Alleged
A motion to dismiss for failure to state a claim does not test the truth of the petition’s allegations; it assumes the truth of the petition’s allegations and treats them as facts with all inferences favoring the petition and determines whether such facts support relief under any theory. Such facts did not negate petitioner’s theory of premises liability, especially considering restatement provisions, so circuit court erred in granting the motion. Judgment granting the motion, even without prejudice, is subject to appeal.
Michael Lee vs. Missouri Department of Transportation
(Overview Summary)
Missouri Court of Appeals, Western District - WD83644

Claim Stated Against Official Immunity
Because a motion to dismiss for failure to state a claim will “merely ... determine whether the petition states a claim upon which relief can be granted, not whether the petition’s claims will ultimately prove meritorious [,]” “it is error to dismiss a properly pled petition by reaching the merits of an affirmative defense [.]” Official immunity bars an action against a public employee who exercised a discretionary duty, but does not protect an official who fails in a ministerial duty, and the petition charged “the existence and breach of specific ministerial duties owed to [decedent,] which caused her death.” Publicly employed medical professionals are protected by official immunity only when acting in a “true emergency situation [,]” which means “rapidly evolving circumstances where medical personnel have limited information [,]” while the petition did not allege such facts. United States Coverdell Act immunizes only teachers who comply with law and school policy, which the petition’s allegations do not describe. Circuit court erred in dismissing the petition so the Court of Appeals reverses and remands.
Tierra Kemp, Individually and as the Surviving Mother of Decedent, Cameron Keeper, Appellant, v. Nancy McReynolds, R.N., Michele Coombs, R.N., Millicent Coleman, and Nycole Umphrey, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108982

Post-Conviction

Abandonment Inquiry Necessary
Motion for withdrawal of counsel and appointment of new counsel does not alter the time for filing an amended motion and, when appointed counsel fails to file an amended motion on time, a presumption of abandonment arises. That presumption requires the circuit court independently to inquire into whether abandonment occurred. 
Corey McClendon, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108845

Record Required in Abandonment Inquiry
Untimely filing of an amended motion raises a presumption of abandonment, into which the circuit court must independently inquire, and on which the circuit court must rule based on a sufficient record. A record is sufficient when the Court of Appeals determines whether clear error occurred. Courts deem a prematurely filed post-conviction motion to be filed when ripe.
Sheila A. Garcia, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108726

Reliance on Counsel Does Not Constitute Third Party Interference
Circuit court’s authority to grant post-conviction relief requires timely filing of the initial motion, unless timely filing was thwarted by third-party interference, which requires allegations that movant did everything within movant’s power to file timely. Reliance on counsel for notice of the time to file is not within that exception. Circuit court had no authority to rule on the motion, so the Court of Appeals vacates the judgment and remands for dismissal.
Terron D. Pool, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108443

Probate

Protectee’s Death Moots Appeal on Partition of Assets
Circuit court denied division of an asset, owned by the entirety of protectee and protectee’s spouse, and protectee’s conservator appealed. But protectee’s death divested protectee of all ownership interest in the asset, made protectee’s spouse the sole owner of the asset, and terminated conservator’s authority. Those results moot the appeal. An indiscernible point relied on and an absent transcript also thwart appellate review. Dismissed.
In Re The Estate of: Virgil D. Williams, Ward/Protectee; Janet Rosenauer vs. Betty Lou Williams and Kim Bauman
(Overview Summary)
Missouri Court of Appeals, Western District - WD83520

Real Estate

No Premises Liability for Bite from Tenants’ Dog
Defendant may be liable for damages from an animal with abnormally dangerous propensities if defendant owned, possessed, or harbored the animal. Defendants were merely the landlord of a dog’s owner. Ownership of the land does not support a theory of premises liability. Summary judgment for defendants affirmed. 
Minor J.D., by her mother and Next Friend A.O., Plaintiff-Appellant v. RICHARD PARRISH, and MARY PARRISH, Defendants-Respondents and LEE RICHMOND, and STEPHANIE LOWER, Defendants
Missouri Court of Appeals, Southern District - SD36791