Appellate

Time for appeal from special order after judgment explained
Appellate courts had authority only as statutes and rules provided. All judgments were orders, but not all orders were judgments. Special orders after judgment were not judgments so the time to appeal judgments did not generally apply to special orders after judgment. Specifically, judgments were effective after entry and special orders after judgment were effective immediately on entry. Special orders after judgment included any order on enforcement of, or collateral attack on, any judgment. That described the appellant’s motion for satisfaction of judgment. The appellant did not file the notice of appeal in time so the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Kenneth Chailland, II, Plaintiff/Respondent, v. Speed and Specialties Autobody, LLC, Defendant, and Jesse Woodrow Long, Defendant/Appellant.
Missouri Court of Appeals, Eastern District - ED114213

Theory not raised in circuit court barred in appellate court
“A defending party is entitled to a summary judgment if it demonstrates: … that there is no genuine dispute as to the existence of the facts necessary to support movant’s properly pleaded affirmative defense.” Affirmative defenses were also subject to affirmative defenses, also called affirmative avoidance, and all had to be pleaded or were waived. That applied to estoppel. In its amended answer and motion for summary judgment, the defendants cited statutes of limitation and alleged facts relevant to those statutes. The plaintiff did not file a reply mentioning estoppel and so waived that theory. The circuit court granted summary judgment for the defendants. On appeal, the plaintiff argued that the trial court erred because estoppel prevented the defendants from raising statutes of limitations. The circuit “court never ruled on that issue and it has been waived.” The Missouri Court of Appeals affirmed the judgment.
CLINT A. WILKERSON, in his capacity as SUCCESSOR TRUSTEE OF THE MIKE ALAN WILKERSON TRUST DATED 8/9/1995, and in his individual capacity, Plaintiff-Appellant v. SCOTT L. WILKERSON and KIMBERLY D. WILKERSON, husband and wife, Defendants-Respondent
Missouri Court of Appeals, Southern District - SD39231

Fictitious citations resulted in dismissal
Appellate rules protected the appellate courts’ neutrality. Those rules included a duty of candor. Filing an appellate brief constituted a certification that all theories were not frivolous. The appellant’s brief violated multiple rules, including citation to inapplicable authorities. “Most notably, three cases in [appellant]’s brief are completely fictitious.” Unable to conduct any meaningful review, the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Willie C. Fortune v. CTA Certified Transmission
Missouri Court of Appeals, Western District - WD88370

Civil

Class action certification denied over predominance
The elements of class action certification included predominance of common questions of law and issues of fact over individual matters among the class. “[A]n extensive analysis of state law variances” was necessary “to demonstrate class certification did not present insuperable obstacles.” Separate arbitration agreements and divergent statutes applicable to members of a proposed nationwide class showed the opposite. The circuit court denied certification and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
Crown Asset Management, LLC, Respondent, v. Lisa Lawson, Appellant, v. Santander Consumer USA, Inc., Respondent.
Missouri Court of Appeals, Eastern District - ED114220

No meritorious defense stated
The elements of an action to set aside a default judgment included a meritorious defense. A meritorious defense meant “an arguable theory” of defense to the plaintiff’s claim as described in allegations of fact with supporting evidence. A verified answer merely setting forth denials of the plaintiff’s allegations was insufficient. The circuit court erred in setting aside the default judgment so the Missouri Court of Appeals reversed the judgment and ordered the circuit court to reinstate the default judgment.
(Overview summary)
Gregory Ernst, et al., Appellant, v. Tainter Landscape, LLC, Respondent
Missouri Court of Appeals, Eastern District - ED114018

Good cause to set aside default not shown
Parties could set aside a default judgment on showing a meritorious defense to the claim and good cause for the default. Good cause included negligence but not recklessness. Recklessness included “a deliberate choice to risk the possibility of a default judgment” like ignoring litigation, especially at upper management levels. The defendant had notice of the subject matter, and the action, and that neither the defendant’s insurer nor the defendant’s own lawyer would defend the action. The circuit court denied relief and the Missouri Court of Appeals affirmed that ruling.
HARRY MENKE, Plaintiff-Respondent v. JAI GANESH LAXMI LLC, d/b/a LIBERTY LODGE, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD39201

Criminal

Accomplice liability shown for attempted offense
An attempted offense meant a substantial step showing a firm purpose to complete the offense. The State carried its burden on that element with evidence that the defendant drove the vehicle that circled the crime scene where the victim was killed by the defendant’s associate. No plain error occurred when the circuit court admitted a surveillance video that was “highly probative and otherwise displayed . . . strong indicia of reliability.” The Missouri Court of Appeals affirmed the convictions.
(Overview summary)
State of Missouri, Respondent, v. James C. Armstrong, Appellant
Missouri Court of Appeals, Eastern District - ED113515

Recklessness shown
The elements of involuntary manslaughter included criminal recklessness, meaning to consciously disregard a substantial and unjustifiable risk. On that element, the State carried its burden of proof with evidence that the defendant passed six miles of lighted signage toward slowed and stopped traffic at 50 or 60 miles per hour without trying “to slow, stop, or swerve his vehicle [.]” The State showed that the defendant was the driver with a judicial admission that the defendant caused the wreck and evidence that the defendant matched the description of the only person in the vehicle. “An in-court identification . . . is not always required.” The Missouri Court of Appeals affirmed the conviction.
STATE OF MISSOURI, Respondent v. ADMIR KULOVAC, Appellant
Missouri Court of Appeals, Southern District - SD39130

CDL did not bar expungement
Unambiguous statutes required no construction. Holders of a commercial driver’s license were ineligible for expungement of driving-related offenses. When the driver committed a driving-related offense, the driver did not hold a commercial driver’s license. Therefore, the driver was not barred from expungement. Neither the appellant’s later receipt of a commercial driver’s license, nor other standards for expunging other offenses, nor statutes preserving records of offenses, altered that result. The circuit court expunged the driver’s record and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
D.P.U. v. Director of Revenue, State of Missouri
Missouri Court of Appeals, Western District - WD88190

Elections

Certification of insufficiency for initiative and referendum proposals was insufficient
The only possible pre-election challenges to an initiative petition before a vote were those related to form like the one-article limit, and single-subject limit for new articles, for constitutional amendments. On receipt of proposed initiative petition forms, the Missouri Secretary of State must certify ballot titles and summaries within “a strict statutory deadline.” On receipt of an initiative petition with signatures, the Secretary of State must examine the petition and signatures and certify sufficiency or insufficiency of compliance with the Missouri Constitution and statutes. A certificate of insufficiency required “a certificate stating the reason for the insufficiency.” On an initiative petition with signatures, the Secretary of State issued a certificate of insufficiency. The certificate did not set forth reasons for insufficiency. Failure to set forth reasons preserved no challenge to the initiative petition for judicial review. The face of the petition showed compliance with the one-article and single-subject limits, and it was too late to change the ballot title and summary already certified. The Supreme Court of Missouri ordered the initiative petition certified and placed on the ballot with the title and summary as already certified.
(Overview summary)
Claire Harris, et al., Appellants, vs. Denny Hoskins, in His Official Capacity as the Missouri Secretary of State, Respondent.
Supreme Court of Missouri - SC101806

Legislative re-districting map was subject to referendum
“[T]he United States Constitution permits a state to authorize a referendum as to legislation drawing new congressional districts,” and the Missouri Constitution allowed the voters to subject any legislation to referendum with limited exceptions. An exception for re-districting applied only to state re-districting, which was a separate process. An exception for “the immediate preservation of the public peace” required an emergency clause, which the legislation did not have. An exception “for the maintenance of state institutions” applied only to appropriations. Therefore, the General Assembly’s congressional re-districting legislation was subject to a referendum. Pending that referendum, the legislation did not take effect and only “shall take effect when approved by a majority of the votes cast thereon, and not otherwise.” The circuit court declared otherwise, so the Supreme Court of Missouri reversed. The Court ordered the initiative petition certified and placed on the ballot and barred the use of the legislation unless approved by the voters.
(Overview summary)
Richard von Glahn, Appellant, vs. Denny Hoskins, in His Official Capacity, et al., Respondents.
Supreme Court of Missouri - SC101805

Certification mooted declaratory judgment action
Courts did not rule on actions that were moot, meaning that no live dispute or effective relief remained. In an action for declaratory judgment, the parties litigated whether certain signatures counted toward the number required for an initiative petition to reach the ballot. The Missouri Secretary of State’s certification stated that the number of signatures was sufficient even without the disputed signatures. That certification mooted the litigation, but the circuit court issued judgment. The Supreme Court of Missouri vacated that judgment and entered judgment of dismissal.
(Overview summary)
People Not Politicians, et al., Appellants, vs. Missouri Secretary of State Denny Hoskins, et al., Respondents.
Supreme Court of Missouri - SC101801

Employment

Substantial identity of interest forgave misidentification of employer
Summary judgment was available only to parties who showed the right to a favorable ruling on undisputed material facts. In actions under the Human Rights Act, attorney fee awards to employers were possible in actions brought “without foundation,” meaning on frivolous claims. That did not describe the state of the summary judgment record as to confusion over employer’s identity, especially when the parties genuinely disputed whether that identity was reasonably ascertainable, and an initially named defendant and the eventually named employer shared a substantial identity of interest. The claimant’s substitution of parties was timely and related back to the initial filing. The circuit court entered summary judgments against the claimant, and the Missouri Court of Appeals vacated those judgments and remanded the action to the circuit court.
LOGAN NUMBERS, Appellant v. 76 MALL INN, INC., and GRAND COUNTRY FUN SPOT, LLC, Respondents
Missouri Court of Appeals, Southern District - SD39172

Evidence

No prejudice shown
Appellate courts reviewed not merely for error but also for prejudice. Prejudice in the admission of evidence meant a reasonable likelihood of acquittal without the disputed evidence. That did not describe sympathetic background testimony, even if not relevant logically or legally; as shown by jury deadlock on one of the charges. It also did not describe a surveillance video, even if not subjected to a sufficient foundation, that the defense cited in evidence and argument. Accomplice liability for an offense required the State to show participation in the offense, which the State did with evidence of where and when defendant and victim were together. The Missouri Court of Appeals affirmed the convictions.
(Overview summary)
State of Missouri, Respondent, v. Antonio Steed, Appellant
Missouri Court of Appeals, Eastern District - ED113711

Juvenile

Due process was satisfied
In actions for protective custody, parents had the right to receive certain documents in discovery and present evidence at hearings. But the juvenile officer did not offer any documents, and the circuit court excluded no evidence relevant to the judgment, at any hearing so no due process violation occurred. The circuit court encouraged circuit courts to be accessible to pro se litigants, abjured the Division of Children’s Services to participate in appellate proceedings, and affirmed the judgment.
(Overview summary)
In the interest of: E.S.W.
Missouri Court of Appeals, Eastern District - ED113858

Orders of protection

Domestic abuse not shown
In an action for a full order of protection, the plaintiff argued that the defendant committed domestic abuse by battery, which required proof of physical harm. “Neither party testified that [plaintiff] suffered pain, bruising, soreness, injury, visible marks, or impairment of bodily function, or required medical treatment.” And the plaintiff also argued that the defendant committed domestic abuse by assault, which required evidence that the plaintiff feared for her physical safety. “[T]here was no evidence [plaintiff] received threats of physical harm or actions of physical violence.” The plaintiff also argued that the defendant committed domestic abuse by harassment, which required evidence of substantial emotional distress. The evidence showed that the defendant was “‘annoying and boorish,' [but] his conduct would not cause ‘substantial emotional distress in a reasonable person.’” The record also showed that the circuit court issued the full order to separate the parties before their conflict escalated further. The Missouri Court of Appeals vacated the judgment and remanded the action with instructions to dismiss.
E.M., Petitioner-Respondent v. H.M.M., Respondent-Appellant
Missouri Court of Appeals, Southern District - SD39109

Personal injury

Pleading of punitive damages against SLEF prohibited
Writs of prohibition were discretionary remedies for actions in excess of authority. The State Legal Expense Fund covered the defense of State employees, and was an exclusive remedy, in actions for money damages based on official activities. Relators were a judge and another State employee, both defendants in an underlying action seeking money damages for conspiracy and abuse of process, so relators were within the Fund’s scope. In an earlier action, the relator could not get a writ barring such action but no opinion accompanied the denial, so it did not address the merits. Governing statutes expressly barred punitive damages against the Fund, which also barred prayers for relief in the form of punitive damages. The respondent circuit judge in the underlying action nevertheless ordered that the plaintiff in the underlying action could amend the petition to seek punitive damages. The Missouri Court of Appeals made permanent its preliminary writ of prohibition barring the circuit court from enforcing that order.
STATE OF MISSOURI EX REL. JUDGE STEVEN A. PRIVETTE, and ALICE BELL, Relators v. THE HONORABLE JAMES K. JUSTUS, SENIOR JUDGE, Respondent
Missouri Court of Appeals, Southern District - SD38977

Post-conviction

No extra time for newly discovered and previously unavailable evidence
Time limits for filing were mandatory and failure to comply waived all relief with few exceptions. Those exceptions did not include newly discovered and previously unavailable evidence. Newly discovered and previously unavailable evidence were not grounds for post-conviction relief though they might support a writ of habeas corpus or a pardon. The circuit court dismissed the motion and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
Mark David Adams, Appellant, v. State of Missouri, Respondent
Missouri Court of Appeals, Eastern District - ED113896

Workers’ compensation

Reduction in disability rating affirmed
On the Labor and Industrial Relations Commission’s administrative review of administrative law judge rulings, no deference was due. The Commission’s findings of fact were subject to deference on judicial review. Expert testimony was not necessary to sustain such findings and lay testimony could suffice. The record showed that the Commission did not exceed its authority by relying on one source of proof to the exclusion of all others. The record supported a finding that part of the claimant’s continuing disability was due to the claimant’s failure to perform rehabilitative exercises, rather than the claimant’s job-related injury, even crediting the claimant’s testimony. Clarification could occur before the Commission, not in the Missouri Court of Appeals. The Court of Appeals affirmed the Commission’s decision.
(Overview summary)
Bradley Barnett v. Kawasaki Motors MFG Corp USA and Sentry Casualty Company
Missouri Court of Appeals, Western District - WD88459

Appellate

No review of unpreserved matters without asking for plain error review
In any jury trial, to preserve error, parties must raise the matter contemporaneously and raise the matter again in a motion for new trial. Preservation also required citing the matter in a point relied on that was compliant with appellate rules. Appellate courts could not correct the appellant’s brief and rule on the appeal from there because those activities would constitute advocacy for the appellant. The appellants further had to file all portions of the record referenced in their briefs. The appellant claimed that the circuit court erred by overruling its objection to the defendant’s closing argument and sought a mistrial. The appellant’s motion for new trial cited the ruling on mistrial, which did not preserve error in ruling on the objection. The burdens of proof and standards of review for the rulings were different, and the appellant cited the wrong one for the objection. A point relied on citing awards for both future lost wages and future medical expenses was multifarious and preserved error in neither award. The appellant also cited differing standards of review in its point relied on associated argument. The appellant further failed to file transcripts to which it referred. The appellant preserved no error for review and appellate courts “will not sua sponte review for plain error [.]” The Missouri Court of Appeals affirmed the judgment.
(Overview summary)
Tara Straussner, Respondent, v. City of St. Louis, Appellant.
Missouri Court of Appeals, Eastern District - ED114085

Judgment too vague for appellate review
Appeals were possible from final judgments. Judgments granting permanent injunctions were final only when, among other things, their provisions were “clear, precise, and definite” as to what was barred, and for how long, without reference to any other document. In an action to enforce a covenant not to compete, the plaintiff sought to bar the defendants from selling at retail online and from any brick-and-mortar location. The circuit court barred the opening of “a retail store” without stating whether that included online and for how long. The Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Pretzel Boys Licensing, LLC, Respondent, v. Pretzel Pretzel-Telegraph, LLC, Amber Scurlock, and Anthony Simmons, Appellants.
Missouri Court of Appeals, Eastern District - ED113968

Wrong reason, right result
An appellate court “will affirm the circuit court’s judgment ‘if it is correct on any ground supported by the record regardless of whether the circuit court relied upon it.’” The petitioner sought an exemption from registration as a sex offender and the circuit court dismissed it for lack of jurisdiction. That reasoning was erroneous because the constitution gave circuit courts jurisdiction over all matters civil and criminal. But the result was correct because statutes provided the conditions for that relief and the appellant did not meet those conditions. Couching the action as an action for declaratory judgment did not alter that result. The Missouri Court of Appeals affirmed the judgment of dismissal.
(Overview summary)
Sherma Johnson, Appellant, v. Missouri State Highway Patrol, et al., Respondents.
Missouri Court of Appeals, Eastern District - ED113828

Deficient briefing required dismissal
Rules of appellate procedure preserved the appellate courts’ impartiality by avoiding speculation on the appellants’ theories. Non-compliant statement of facts, points relied on, and argument were so incoherent that they either failed to preserve or abandoned the appellant’s claims of circuit court error. After notice and opportunity to cure, the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Tower Loan of Missouri, LLC, v. Michael Session
Missouri Court of Appeals, Western District - WD88455

Civil

Voiding of judgment reversed
Circuit courts could grant relief from judgments, including default judgments, void for lack of due process. Due process included personal jurisdiction, which included notice and an opportunity to be heard, which occurred by service of process. Service of process on a person living outside of United States was possible under Missouri law but was also possible under the Hague Convention, which the plaintiff satisfied by delivery to the defendant through Scotland’s central authority. The central authority’s return of service constituted prima facie evidence of due process that the defendant failed to refute. A spelling error in the defendant’s name was a mere misnomer, not a misidentification, that the circuit court could correct at any time. “When summons is actually served on the correct party but by the wrong name, the error becomes immaterial because the correct party has notice of the suit." Once the party served defaulted, the circuit court could enter default, including an award of damages. “Defendant’s contention regarding the lack of probative evidence to support the award is a merit defense disguised as a due process argument.” The plaintiff’s affidavit supported the amount of damages awarded and, even if it didn’t, that would have been a mere error of law and not a jurisdictional error.
(Overview summary)
Mindy Reaves, Appellant, v. P. Harvey's Mold Lady and Construction Services, LLC, Respondent.
Missouri Court of Appeals, Eastern District - ED114152

Statutes determined standing
The plaintiffs had the burden to establish standing, meaning the legally protected interest necessary to file an action for relief. Missouri statutes determined standing for Missouri statutory actions, not United States caselaw, so that interest need not be in monetary damages. Statutes created a cause for action for a borrower whose lender did not timely file a release of lien. The plaintiff alleged that the plaintiff’s lender did not timely release the lender’s lien. That pleading alleged standing, so the circuit court erred in dismissing the action. The Missouri Court of Appeals reversed the judgment of reversal and remanded the action to the circuit court.
(Overview summary)
Robert J. Gallagher, Appellant, v. Santander Consumer USA, Inc., Respondent.
Missouri Court of Appeals, Eastern District - ED113806

Amended schedule did not extend time for response to summary judgment
On a motion for summary judgment, any numbered paragraph in the statement of undisputed facts that the responding party failed to deny constituted an admission. Circuit courts generally had authority to extend deadlines; and the rule governing summary judgment specifically contemplated discovery pending, and extensions of time for discovery for responding to, motions for summary judgment. None of those things happened in the parties’ action. The circuit court issued an amended schedule that extended the deadline for discovery and continued the trial date, but that order did not void the pending summary judgment motion, nor extend the time to respond to the motion. The appellant did not file a response to the motion, the circuit court deemed the movant’s allegations admitted and granted the motion, and the Missouri Court of Appeals affirmed that judgement.
(Overview summary)
Wendy Anderson v. Truman Medical Center, Inc. D/B/A University Health
Missouri Court of Appeals, Western District - WD88285

Criminal

Reference to questions unanswered by the defense was okay
The elements of plain error review included an obvious error. An indirect reference to the defendant’s failure to testify could support reversal when the record showed a calculated intent to highlight the matter. But the State did not reference the defendant or failure to testify, only “unanswered questions” that the State attributed to the defense. The circuit court did not plainly err in refraining from intervening sua sponte so the Missouri Court of Appeals affirmed the judgment.
(Overview summary)
State of Missouri, Respondent, v. Joseph O. Fuller, Appellant.
Missouri Court of Appeals, Eastern District - ED113750

Trespass conviction affirmed
The elements of trespass in the first degree as charged included remaining on real property unlawfully. Unlawful presence did not require evidence of the title to real property, nor of the property’s metes and bounds. Evidence that another person had the right to use, possession, or occupancy was sufficient. Such evidence came from the occupant’s general manager and was sufficient to support the element of remaining unlawfully. The Missouri Court of Appeals affirmed the conviction.
(Overview summary)
State of Missouri v. Samuel David Todd Cornell
Missouri Court of Appeals, Western District - WD88419

Circumstances implied knowledge
The elements of class E felony leaving the scene of an accident included knowledge that property damage had occurred. The State supported that element with evidence of a collision between the defendant’s vehicle and the victim’s vehicle, extensive damage to the victim’s vehicle, and the defendant’s flight from the collision. The Missouri Court of Appeals affirmed the conviction.
(Overview summary)
State of Missouri v. Jerry Cook
Missouri Court of Appeals, Western District - WD88131

Appeal violated plea bargain
Plea bargains were contracts, in which “both parties relinquished rights and received benefits [,]” subject to equitable principles. Sentencing was a material provision. The appellant agreed to enhanced sentencing for some charges in exchange for dismissal of other charges including resisting arrest. The defendant’s post-judgment motion challenging the enhanced sentencing, though successful on appeal, constituted a breach of the agreement great enough to support rescission, so the circuit court did not err in denying enforcement of the dismissal. When the State re-filed the charge of resisting arrest, the State showed flight with arresting officer testimony, and the Missouri Court of Appeals affirmed the conviction.
(Overview summary)
State of Missouri v. Christopher Lynn Baker
Missouri Court of Appeals, Western District - WD88023

No right to inform jury of consecutive sentence mandate
When considering their recommended sentences, juries cannot consider whether sentences could be concurrent or consecutive because that was a collateral matter for the judge alone. The sentences for the defendant’s offenses had to be consecutive, the circuit court barred the defense from mentioning that law during argument on sentencing, and that ruling was no abuse of discretion. The Missouri Court of Appeals affirmed the conviction.
(Overview summary)
State of Missouri v. Kam Deih Kap
Missouri Court of Appeals, Western District - WD87925

Employment security

No good cause to backdate benefits
Benefits began in the month of the filing of a claim unless the claimant showed good cause for starting them earlier. Good cause meant “beyond the reasonable control of the claimant and then only if the claimant acts as soon as practical.” That did not describe the claimant’s ignorance of the law allowing a claim while working part-time. The Labor and Industrial Relations Commission denied relief and the Missouri Court of Appeals affirmed that decision.
(Overview summary)
Sharonda White, Appellant, v. Division of Employment Security, Respondent.
Missouri Court of Appeals, Eastern District - ED114000

Appellant must appeal the Commission’s dismissal, not the ALJ’s decision
An administrative law judge decided the claimant’s claim on the merits, the claimant filed a petition for review with the Labor and Industrial Relations Commission, and the Commission dismissed petition for review for failure to appear. The Missouri Court of Appeals had authority only to review the Commission’s rulings. The claimant’s notice of appeal to the Court of Appeals challenged the ruling on the merits of the claim, not the Commission’s dismissal. Because the Commission never ruled on the merits of the claim and only dismissed the petition for review, the Court of Appeals had no authority over the merits of the claim. The Court of Appeals dismissed the notice of appeal.
(Overview summary)
Torie Nave v. Barnes-Jewish Hospital, Employer, and Division of Employment Security
Missouri Court of Appeals, Western District - WD88602

Family

No new grounds alleged in motion to modify
Appellate courts affirmed dismissal on any ground charged in a motion to dismiss even if the circuit court did not rely on it. To support a motion to modify child custody, the movant had to show facts unknown at, or that arose since, the earlier custody order. The movant alleged a breakdown in communication and cooperation between the parties, but that was nothing new. “These parents have engaged in protracted and hostile litigation since 2018 when their child was less than a year old. Even accepting Father’s multiple averments in his motion as true, his allegations regarding Mother are hardly a surprise.” The circuit court dismissed the motion for failure to state a claim and the Missouri Court of Appeals affirmed that ruling.
(Overview summary)
James Bryan Steele, Jr., Appellant, v. Amanda Marie Perkins, Respondent.
Missouri Court of Appeals, Eastern District - ED114077

No Form 14, no appeal
Except when the appellants sought plain error review, appellate courts reviewed only preserved errors. To preserve error in awards of child support, parties had to file a Form 14 in circuit court. The appellant challenged the award of child support on appeal but did not file a Form 14 in circuit court and so failed to preserve the matter. The Missouri Court of Appeals affirmed the award.
(Overview summary)
M.F., Appellant, v. S.B., Respondent.
Missouri Court of Appeals, Eastern District - ED113585

Juvenile

No colloquy was necessary to accept an admission of guilt
Plain error review was within appellate courts’ discretion for obvious errors that “seriously” undermined circuit court judgments by their effect on substantial rights. The rights of a juvenile in an adjudication hearing included the essentials of due process in a criminal action. The appellant juvenile did not show that those essentials included the colloquy due in circuit court to determine whether an admission was knowingly, voluntarily, and intelligently made. And the record showed that the appellant knowingly, voluntarily, and intelligently made the admissions. No plain error occurred when the circuit court accepted the guilty plea so the Missouri Court of Appeals affirmed the judgment of commitment.
(Overview summary)
In the Interest of B.L., a Minor v. Juvenile Officer
Missouri Court of Appeals, Western District - WD88431

Post-conviction

Overwhelming evidence of guilt negated prejudice
The movant had to show that counsel performed below professional standards. The movant cited the advice not to testify and failure to call the movant to testify. But the circuit court’s colloquy showed that the movant knowingly and voluntarily waived the right to testify and that the waiver was strategic. The record showed that such strategy was sound because it avoided damaging cross-examination. Dealing with the State’s closing arguments in the defense’s closing argument, rather than objecting contemporaneously, was reasonable trial strategy. One point relied on alleging deficient performance by the appellate counsel as to three convictions was multifarious and preserved no errors. Also, no prejudice resulted from counsel’s alleged deficiencies because the evidence of guilt was overwhelming. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
Kevin M. Fields, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED113721

Post-conviction relief

Refraining from an objection was sound strategy
Judgments on post-conviction relief motions were subject to reversal only when the whole record left appellate courts with a definite and firm impression that the circuit court had made a mistake. On a claim of ineffective assistance of counsel, the elements included deficient performance, which a reasonable trial strategy negated. When the claimed deficiency was the absence of an objection to evidence, trial counsel presumptively had a strategic reason for not objecting, even when trial counsel offered none. Trial counsel chose not to object to a witness’s testimony because it was likely to appear not credible and trial counsel was then able to further undermine the witness’s testimony on cross-examination. And, even if trial counsel’s performance were deficient, there was no reasonable likelihood that it affected the outcome. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment.
ANDREW LUKE LEMASTERS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD39108

Witness would not have been helpful
Reasonable trial strategy negated claims of ineffective assistance of counsel. Claims for ineffective assistance of trial counsel based on failure to call a witness required the movant to show that the witness was available and would have helped the movant “unqualifiedly.” As to both, the record supported a finding to the contrary and the circuit court found that the witness’s testimony in favor of the movant was not credible. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
Sadiq J. Moore v. State of Missouri
Missouri Court of Appeals, Western District - WD88073

Real estate

Road remedy was an easement, not a transfer of ownership
Circuit courts could establish private roads when strictly necessary for access, but only with the least “damage or injury and . . . inconvenience as practicable to the owner or owners of the real property over which the private road shall pass.” Specifically, the road had to be a permanent easement appurtenant. The circuit court granted the private road in fee simple absolute, so the Missouri Court of Appeals reversed the judgment, and remanded the action.
CLINT BOWEN, and MOGAN BOWEN, Respondents v. DYLAN ROEDER, Appellant
Missouri Court of Appeals, Southern District - SD39014

Constitutional

No concealed carry permits for felons 
The United States Constitution’s Second Amendment protected the right of law-abiding citizens to “keep and bear Arms [.]” Restrictions on felons bearing arms were constitutional because felons were not law-abiding citizens and such restrictions had a long history in “our Nation’s tradition of firearm regulation.” Grounds to deny a concealed carry permit included felony convictions and guilty pleas. Substantial evidence of those convictions included the applicant’s testimony and other undisputed evidence. The circuit court affirmed the denial and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Anthony Hayes, Appellant, v. Saint Louis County Police Department, Respondent
Missouri Court of Appeals, Eastern District - ED113903

Criminal

Trespasser had no standing to challenge search 
Appellate courts reviewed the record from the pretrial hearings and at trial. Guests of a tenant had standing to challenge searches of tenants’ premises, but the record supported a finding that the defendant was a trespasser and not a guest. The elements of possessing contraband included control of the contraband and knowledge of the contraband’s nature. Actual possession of contraband supported an inference that the defendant knew what the contraband was. The Missouri Court of Appeals affirmed the conviction. 
(Overview summary)
State of Missouri, Respondent, v. Ritchie A. Jones, Appellant.
Missouri Court of Appeals, Eastern District – ED113690

No plain error in multiple sentences for one incident
Defendant had to raise constitutional issues at the first opportunity, except double jeopardy, because double jeopardy went “to the very power of the State to bring the defendant in the court [.]” Unpreserved double jeopardy claims were within the courts’ discretionary plain error review. Plain error review required the defendant to show that an obvious error affected a fundamental right and caused a manifest injustice. Double jeopardy barred conviction for an offense under both a general description and a specific instance. One course of conduct could constitute multiple offenses if the statutes setting forth those offenses had differing elements. First-degree assault required the State to show that the defendant caused serious physical injury, while unlawful use of weapon by shooting at a motor vehicle did not. Unlawful use of weapon by shooting at a motor vehicle required the State to show that the defendant used a firearm, while first-degree assault did not. Each armed criminal action conviction required the State to show a separate underlying offense. Therefore, no error occurred when the circuit court imposed multiple sentences for those multiple offenses. The Court of Appeals affirmed the convictions.
STATE OF MISSOURI, Plaintiff-Respondent v. BRYAN W. GRISSOM, Defendant-Appellant
Missouri Court of Appeals, Southern District – SD

Family

Findings were sufficient 
When substantial admissible evidence in the record [supported a] judgment [,]” reversible error in the admission of evidence was “practically impossible” to show. The appellant challenged the admission of financial records authenticated by deposition but showed no prejudice from that evidence because other, undisputed evidence supported the judgment. In actions to modify child custody, statutory factors guided circuit courts’ determination of the children’s best interest. Conclusory recitations of which factor favored which party were insufficient because they did not allow meaningful appellate review. Circuit courts had to support their application of those factors made relevant by the allegations and evidence with findings of fact. The circuit court met that standard with “numerous factual findings corresponding to several statutory best-interest considerations” that “extensively considered allegations” and relevant evidence. “[T]he findings are relevant to the requests of the parties, easy for this Court to ascertain, and clearly attributable to [applicable] factors [.]” The Missouri Court of Appeals affirmed the judgment. 
COLBY L. DAVISON, Appellant v. BOBBIE S. FOLEY f/k/a DAVISON, Respondent
Missouri Court of Appeals, Southern District – SD39296

Insurance

Insurers need not cover sales tax for replacement vehicle when vehicle not replaced
Judgment on the pleadings was due when the petition alleged facts on which no relief was due under any theory. An earlier appellate ruling on a motion to dismiss held that relief was due if the insured’s reading of a policy was correct but did not decide that the insured’s reading of the policy was correct. The parties’ automobile policy’s collision coverage gave the insurer the option of repair or replacement. Replacement was at comparable value. Comparable value included any tax that the insured had to incur to “acquire ownership” of a replacement vehicle. Insured’s vehicle suffered a collision, the insured did not acquire ownership of a replacement vehicle, the insurer paid replacement value that did not include an amount for sales tax. In an action for breach of contract, the insured sought an amount for sales tax, but no relief was due because the insured never incurred sales tax. The circuit court granted the insured’s motion for judgment on the pleadings and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Yolanda Bell v. Shelter General Insurance Company
Missouri Court of Appeals, Western District - WD88275

Post-conviction

Abandonment inquiry required 
With exceptions inapplicable to the movant’s action, timely filing was mandatory. Among those exceptions was abandonment by appointed counsel. When appointed counsel filed amended motions out of time, circuit courts had to conduct an inquiry into whether the appointed counsel had abandoned the movant because abandonment excused untimely filing. The circuit court failed to conduct that inquiry. The Missouri Court of Appeals reversed the judgment and remanded the action to the circuit court for an inquiry into abandonment. 
TERRANCE LAMONTE JOHNSON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District – SD39268

Appellate

Payment mooted appeal
Motions for sanctions and post-judgment clarifications did not constitute claims, so ruling on such motions could not constitute judgments, and were not subject to appeal. And any appeal that could result in no meaningful relief on any existing controversy was moot. The appellant sought review of a ruling assessing monetary sanctions and denying clarification. Then the appellant paid the sanction without seeking a stay or posting a supersedeas bond. Compliance with that ruling mooted the appeal from the ruling. The Missouri Court of Appeals dismissed the appeal.
MARK CHRISTOPHER DARNELL, Plaintiff-Appellant v. SUZANNE KAY REMETIO, and DANIEL ZACEK SMITH, Defendants-Respondents
Missouri Court of Appeals, Southern District - SD39425

Criminal

No plain error review on enhanced sentence
The elements of plain error included an obvious error resulting in manifest injustice, meaning that the error was outcome-determinative, which often depended on the strength of the evidence. And courts seldom found plain error when the defendant made no objection. Any fact that increased a sentence had to be submitted to a jury, like the facts that showed prior and persistent offender status, but the circuit court failed to do so. Instead, the circuit court took notice of the facts supporting prior and persistent offender status, and concluded that the appellant was a prior and persistent offender. But both occurred without objection or with a statement of no objection. And the appellant did not show that a jury could reasonably have found that the defendant was not a prior and persistent offender. Also, the sentence was in the unenhanced range of punishment so the defendant could not even show prejudice. The Missouri Court of Appeals declined plain error review and affirmed the conviction.
STATE OF MISSOURI, Plaintiff-Respondent v. DERICK JAY COOK, Defendant-Appellant
Missouri Court of Appeals, Southern District – SD38766

Error unpreserved
Preserving a constitutional right to present excluded evidence required the defendants to raise the challenge at the first opportunity. Preserving any argument against excluding evidence required the defendants to make an offer of proof. The defendant failed to do both and the record did not afford a complete understanding of what the evidence was excluded. Failing to preserve error left review only for plain error, on which courts rarely granted relief when the defendants did not challenge the sufficiency of the evidence. The Missouri Court of Appeals declined plain error review and affirmed the convictions.
STATE OF MISSOURI, Plaintiff-Respondent v. MARVIN EUGENE GUERIN, Defendant-Appellant
Missouri Court of Appeals, Southern District – SD39150

Employment

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act applied
The federal government’s Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act barred the compulsory arbitration of disputes over sexual assaults and harassment, including enforcement of any pre-dispute arbitration agreement. The employee reported sexual assault and harassment by a supervisor, was terminated, and was re-hired without the supervisory relationship. The employee and employer then entered into an arbitration agreement and the employer tried to compel resumption of the supervisory relationship. The plaintiff employee brought several claims alleging that the employer retaliated against the employee for refusing to accept sexual assault and harassment. But the claims were not for sexual assault and harassment, so the circuit court granted the defendants’ motion to compel arbitration under the agreement. That ruling was error because the agreement was pre-dispute, in that the dispute was resolved when the parties made the agreement; and the Act applied to all disputes, not just claims; and the Act covered the entire action of which that dispute was a part. The Missouri Court of Appeals made permanent its writ of mandamus requiring the circuit court to deny the motion to compel arbitration.
(Overview summary)
State of Missouri Ex Rel., Alan Waddell v. The Honorable Cory Lee Atkins, Circuit Court Judge, Division 17 of the Circuit Court of Jackson County, Missouri
Missouri Court of Appeals, Western District – WD89050

Family

Child support modified on testimony alone
Appellate courts could not advocate for either party, including on whether the appellant preserved an issue, so an inadequate preservation statement was grounds for dismissal of a point relied on. To modify an award of child support required evidence “of changed circumstances so substantial and continuing as to make the terms unreasonable.” That included evidence of increased costs of living and expenses that increased with the child’s age. The movant carried that burden with “detailed” testimony of the children’s increased costs, the movant’s decreased income, and the appellant’s increased income even without supporting documents. Circuit courts had to draft a Form 14 for each combination of children at issue and the circuit court did so by drafting one for two children and another for one child. The circuit court correctly applied a credit for overnight visits exercised and not merely awarded. How circuit courts calculated the presumed child support amount and how circuit courts determined whether that amount was rebutted were separate rulings requiring separate points relied on; combining those challenges into one point made that point multifarious. The Missouri Court of Appeals affirmed the judgment.
Brandi M. Bizzell, Appellant, v. Thomas E. Bernatow, Respondent.
(Overview summary)
Missouri Court of Appeals, Eastern District – ED113839

Credit was due for amounts paid pendente lite
Whether a ruling was unsupported by substantial evidence or against the weight of the evidence were two different theories, requiring separate points relied on, and combining them rendered a point relied on multifarious and subject to dismissal. Joint custody of a child was preferred but the appellant’s disinterest in parenting supported an award of sole custody in respondent. Courts could impute counsel’s conduct to the client, including an award of attorney fees for late arrival on the day of trial and declining plain error review for failure to file a post-trial motion. “[A] party ordered to pay retroactive support is generally entitled to receive a credit for voluntary child support [.]” When the circuit court failed to apply that credit, the Missouri Court of Appeals entered the judgment that the circuit court should have entered.
(Overview summary)
Andrew R. Vollmer, Appellant, v. Kathy D. Vollmer, Respondent.
Missouri Court of Appeals, Eastern District – ED113666

Personal injury

New trial was due when the verdict was against the weight of the evidence
Appellate courts favored the grant of a new trial over the denial of a new trial. If a motion for new trial set forth any basis for granting the motion, and the circuit court granted the motion on such basis, appellate courts affirmed the ruling. The circuit court recited the standard incorrectly but applied the correct standard. The circuit court set forth its basis clearly, rather than simply referencing paragraphs of the motion, and no detailed analysis was necessary. In a challenge to the granting of a new trial, matters related to the grant of partial summary judgment were irrelevant. Appellate courts viewed the record in a light favorable to the circuit court’s ruling so whether the jury favored the defendant appellant, or could have, was irrelevant. A submissible case of failure to warn included causation. The plaintiff satisfied that element with the presumption that, if the defendant had given a warning, the plaintiff would have followed the warning. In context and on the record, the plaintiff did not challenge a defective design in all products in the entire industry.
(Overview summary)
K.W., et al., Respondents, v. Saint Louis Children's Hospital, et al., Appellants.
Missouri Court of Appeals, Eastern District – ED113441

Post-conviction

Third party interference not shown
Untimely filing waived all relief with limited exceptions. The exceptions included third-party interference, which required the movants to do everything necessary to file timely, and to show that a third party thwarted timely filing. That required detailed pleading and proof as to how the third party prevented timely filing. The movant alleged that he was jailed in Kansas without his “legal work” but did not allege that Kansas deprived him of access to a law library or any other facts that described third-party interference. The circuit court denied relief without a hearing and the Missouri Court of Appeals affirmed that ruling.
ROY L. BLACKSURE, Appellant v. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD39358

ADR

The record negated an assignment of an agreement to arbitrate
Orders denying motions to compel arbitration were subject to interlocutory appeals, and the law of the case doctrine barred re-litigation of matters decided on appeal. The appellant had filed an earlier interlocutory appeal from the order denying the appellant’s motion to compel arbitration, but dismissed the earlier appeal, so law of the case did not bar a later appeal. Appellate courts reversed circuit courts only on errors “materially affecting the merits of the action.” A circuit court had to make written findings of fact on matters specifically requested by a party, or could generally set forth the grounds for its judgment if generally requested, but failure to do so was harmless error. The Missouri Court of Appeals denied the respondent’s motion to dismiss the appeal. The movants to compel arbitration had the burden of proof, including as to standing. Standing to enforce an arbitration agreement was in a party to the agreement or a party’s assignee. The contemporaneous execution of the documents could make the documents into a single contract when the realities of the situation showed that the parties intended that result. The buyer’s order between buyer and seller included an arbitration clause but the appellant movant lender was not a party to the buyer’s order and the seller never assigned it. The seller assigned to the lender only the installment payment contract, which had no provision for arbitration, between the buyer and seller. Those facts supported a finding that the seller never intended to assign the installment payment contract — and arbitration agreement — to lender. That finding was in accord with the circuit court’s ruling, so was presumptively implied in that ruling, and found deference on appeal. The circuit court denied the motion to arbitrate and the Court of Appeals affirmed that ruling. 
(Overview summary)
Ford Motor Credit Company, LLC, Appellant, v. William P. Wentz, Respondent
Missouri Court of Appeals, Eastern District - ED113914

Appellate

No transcript, no appeal
When the appellants challenged the evidentiary grounds for rulings, review of those rulings required review of evidentiary hearings, which circuit courts preserved in transcripts. Transcripts were, therefore, part of the record on appeal that the appellants had to file. The appellant challenged the evidentiary basis for the circuit court’s ruling and failed to file the transcript. After three extensions of time to file the transcript, the Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
Rachel Whitehead v. Zackery Todd Moore Jr.
Missouri Court of Appeals, Western District - WD88216

Criminal

Transferred intent applied
The elements of assault in the first degree as charged included causing serious physical injury knowingly. Knowingly meant awareness that the defendant’s conduct was practically certain to cause the result that occurred. The defendant shot into a group of people walking toward him, which was practically certain to injure someone even if the defendant did not know for certain whom and hit someone in a car. Stipulating to the admission of evidence waived even plain error review of the evidence’s admissibility. The Missouri Court of Appeals remanded the action to the circuit court for an order nunc pro tunc to conform the written sentence with the spoken sentence and otherwise affirmed the convictions.
STATE OF MISSOURI, Respondent v. KALEB M. RAMSEY, Appellant
Missouri Court of Appeals, Southern District - SD39007

Education

Some allegations stated a claim in contract, others did not
On the defendant’s motion to dismiss for failure to state a claim, the plaintiff prevailed if the petition alleged any facts supporting relief under any theory, regardless of the plaintiff’s characterization of the claim and the prayer for relief. The plaintiff student claimed that the defendant university breached a contract because the defendant falsely represented that all six years of its joint BA/MD program were accredited as medical school courses when only the last four were so accredited. But the plaintiff alleged no such promise and did not allege the loss of any benefit. The plaintiff alleged that the defendant broke its promise to separately report grade point averages for separate programs of undergraduate and medical degrees, but the plaintiff’s program was a joint program of undergraduate and medical degrees. The plaintiff’s claim for breach of implied contract was subject to the statute of limitations for “’[a]ll actions upon contracts, obligations or liabilities, express or implied’ unless excepted.” That time started when the plaintiff had reasonable notice of substantial damage. The plaintiff recognized the damage when the defendant changed the remedies for failure to meet the program’s requirements part-way through the plaintiff’s program but did not timely file the petition. The plaintiff alleged a continuing injury but not a continuing wrong that would extend the time to file. The circuit court dismissed those claims and the Missouri Court of Appeals affirmed that part of the judgment. As for the rest of the judgment, the circuit court erred in dismissing allegations of “objective, specific, and express representation” “sufficiently concrete to support a contractual promise” in which the damage was not ascertainable until later. The Court of Appeals reversed those rulings and remanded the action.
(Overview summary)
Joshua Carter v. The Curators of the University of Missouri
Missouri Court of Appeals, Western District - WD87975

Post-conviction

No plea bargaining, no prejudice
The elements of a claim for ineffective assistance of plea counsel included a reasonable probability that a plea bargain would have reduced the sentence imposed. The movant alleged that the plea counsel failed to persuade the movant to accept an offer from the State to plead guilty to lesser charges. But the record showed that the movant refused to plea bargain and turned away three plea deals because the movant maintained his innocence and was confident of a jury acquittal. Those facts showed that the movant rejected the State’s offers because of the desire for acquittal, not the plea counsel’s advice, and no advice from the plea counsel would have made any difference. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
Jeromy Jenkins v. State of Missouri
Missouri Court of Appeals, Western District - WD88078

Previous appellate review nixed relief
The rules governing motions were the rules in effect on the date of sentencing. The initial motion and amended motion both charged trial counsel with ineffective assistance for failures to object as to the location of the events alleged. The initial motion cited the omission of the county from the verdict director. The amended motion cited evidence related to that county. The latter was a new charge, not a mere refinement of the former. And the amended motion was late, so failure to object to evidence about the county was not before the circuit court and could not be subject to appellate review. As to the omission of the county from the verdict director, appellate review already found no error, so that matter was barred from post-conviction relief. The movant also charged trial counsel with failure to disclose a witness, resulting in exclusion of that witness’s testimony. That matter was subject to appellate review for fundamental unfairness, and none appeared, so no prejudice was possible post-conviction. “[F]undamental unfairness in the context of a preserved error on direct appeal is a lower standard of review for reversible prejudice than the standard for reversible prejudice in a post-conviction relief proceeding” so when an appellate court “found no reversible prejudice from the exclusion of [the witness’s] testimony on direct appeal, that exclusion cannot support a finding of prejudice in this post-conviction relief proceeding” for failing to disclose that witness. The circuit court denied relief and the Missouri Court of Appeals reversed that judgment. 
(Overview summary)
Richard L. Kerksiek v. State of Missouri
Missouri Court of Appeals, Western District - WD87889

Probate

Circuit court could not order parental visitation during guardianship
Parties had to raise constitutional matters at the first opportunity, which the plaintiff failed to do, and so waived issues of due process. The death of one co-guardian left the other co-guardian in place and no new ruling was necessary to continue the guardianship. Appellate courts did not re-weigh the evidence presented in circuit court. In an action to change guardian, the circuit court found the defendant’s evidence more persuasive, and that evidence negated the plaintiff’s allegations of harmful restriction and isolation, so the judgment was not against the weight of the evidence. Guardianship vested custody and control of wards in guardians. Circuit courts could order parental visitation for a minor ward only when the circuit court had ordered guardianship because the parents were unwilling, unable, or unfit. That was not the basis for the guardianship of the plaintiff’s child, and the plaintiff’s child was not a minor, so the circuit court had no authority to order visitation. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment.
IN THE MATTER OF: REAGAN NOELLE DILLARD, an Incapacitated and Disabled Person, SUSAN DILLARD, Appellant v. SHERRY DILLARD, Guardian and Conservator, Respondent
Missouri Court of Appeals, Southern District - SD39166

No-contest clause discussed
Circuit courts enforced no-contest clauses of trusts, imposing forfeiture of benefits for the conduct proscribed in the clauses. The settlor broadly barred disputes over administration and narrowly specified real property under contract to sell. In the plaintiff successor trustee’s action for declaratory judgment on the terms of the trust and the contract to sell, the beneficiaries challenged the contract with allegations of the settlor’s mental incapacity. The contract was part of the trust’s distribution plan. A challenge to the contract thus constituted a challenge to the administration of the trust. The circuit court ruled that the challenge was a violation of the no-contest provision and the Missouri Court of Appeals affirmed that judgment.
In re the Matter of: THE JACK L. WASHBURN TRUST AGREEMENT DATED DECEMBER 30, 2015, AS AMENDED, NORMAN E. ROUSE, TRUSTEE, Petitioner-Respondent v. JACQUELINE SUE EMMERT and PATRICIA L. COLVIN, Respondents-Appellants and JACK DAVID WASHBURN, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD39163

Appellate

Acquiescence under threat of contempt estopped the appeal
The settlor of a trust was the mother, mother-in-law, and grandmother of the appellants. The appellants financially exploited the settlor by undue influence. The circuit court entered judgment against the appellants, ordering the appellants to transfer real property and personal property, and awarding monetary damages against appellants. The appellants filed a notice of appeal seeking to reverse all the relief ordered in the judgment, but no supersedeas bond to stay the judgment. The appellants also transferred the real and personal property to avoid enforcement of a contempt order. Those facts were inconsistent with a challenge — and therefore constituted acquiescence — to the judgment, which estopped any challenge to the judgment, which mooted the appeal. The fact that the appellants still owed the money judgment, and only transferred the property to avoid contempt, did not change that result. The Missouri Court of Appeals dismissed the appeal.
CAROL DEVOY, Co-Trustee of the Barnett Family Trust dated June 3, 1993, as amended, and STEPHANIE DEVOY and MEGAN DEVOY, Co-Trustees of the Barnett Family Trust dated June 3, 1993, as amended, and Co-Attorneys-In-Fact for Sara Jo Barnett under durable Power of Attorney dated May 2, 2017, Respondents v. CARMEN LISEK, RICHARD LISEK, and REBECCA CODY, Appellants
Missouri Court of Appeals, Southern District – SD39171

Finality of attorney fees award required denomination as a judgment
Appellate courts had authority to hear appeals from final judgments. The appellant challenged a ruling on a motion for attorney fees incurred in an underlying action by appealing the judgment in an action. But motions for attorney fees constituted actions separate from the underlying actions and so required their own final judgments. The elements of a final judgment included denomination as a judgment or decree and the ruling on attorney fees was by order and docket entry. The Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Stonebridge Homeowners Association v. Harriett A. Draper
Missouri Court of Appeals, Western District - WD88397

Appellant’s briefing deficiencies required dismissal
Rules of appellate practice were mandatory. Violations of the rules governing the appendix, statement of facts, points relied on, and argument in the appellant’s brief would have required the Missouri Court of Appeals to construct an argument for the appellant. After notice and failure to correct, the Court of Appeals dismissed the appeal.
(Overview summary)
James Baker v. City of Maysville, et al.
Missouri Court of Appeals, Western District - WD88301

Appellant’s briefing deficiencies required dismissal
Rules of appellate practice protected the appellate courts’ neutrality by eliminating speculation as to the appellants’ theories. Those rules included the format for appellate briefs. An argument and statement of facts without citations to supporting authority and references to the record would have required the Court of Appeals to construct an argument for the appellant. After notice and failure to correct, the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Christine Harrelson v. David Culver, et al
Missouri Court of Appeals, Western District - WD88214

Appellant’s briefing deficiencies required dismissal
Rules of appellate practice protected the appellate courts’ neutrality by eliminating speculation as to the appellants’ theories. Those rules included the format for the appellate briefs. An argument and statement of facts without citations to supporting authority and references to the record would have required the Court of Appeals to construct an argument for appellant. After notice and failure to correct, the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Christine Harrelson v. Brandon Culver, et al
Missouri Court of Appeals, Western District - WD88213

Appellant’s brief must provide context for the appeal
Appellant’s briefs had to set forth the factual context and legal authority for appellants’ challenges to judgments. And appellants had to do so by compliance with rules that governed statements of fact and argument sections of the brief. Appellant’s statement of facts and argument so deviated from those rules that the Court of Appeals could not understand what happened in circuit court. “[O]ur purpose is to explain rather than to embarrass [.]” The Court of Appeals dismissed the appeal.
MARCUS DEANGELO JONES, Appellant v. JOSHUA WAYNE MORTON, Respondent
Missouri Court of Appeals, Southern District - SD39442

Appellant preserved no error
Mandatory compliance with rules of appellate procedure gave notice to other parties and the courts as to appellants’ theories and protected appellate courts’ impartiality by avoiding speculation as to appellants’ theories. Failure to comply was grounds for dismissal. Appellant’s statement of facts was incomplete, biased, inaccurate and lacked references to the record. Appellant’s points relied on failed to offer one—and only one—of the four theories for reversal and ruling challenged. Appellant’s argument omitted preservation statement, standards of review, and references to the record. Each of those deficiencies resulted in the preservation of no error. The Court of Appeals dismissed the appeal, which mooted all pending motions, which the Court of Appeals therefore denied.
AMY RINKER, Petitioner-Appellant v. CODY RINKER, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD38895

Civil

No judgment on claim not pleaded
“A trial court may not enter judgment on a cause of action that a plaintiff did not plead.” That included summary judgment. The Sunshine Law required public governmental bodies to produce records and allowed penalties for purposeful violations. Separate statutory provisions addressed those claims respectively. The plaintiff’s petition claimed that the defendants failed to comply with the Sunshine Law, while the plaintiff’s motion for summary judgment claimed that the defendants purposely violated the Sunshine Law, and the circuit court granted that motion. The circuit court had no authority to order any remedy on that claim, so the judgment was voidable. The Missouri Court of Appeals reversed the judgment, vacated the judgment, and remanded the action.
(Overview summary)
Cypress Horan, LLC, Respondent, v. City of Fenton, Missouri, et al., Appellants
Missouri Court of Appeals, Eastern District - ED113842

No personal jurisdiction under bond
To show that circuit courts had personal jurisdiction over non-resident corporate defendants, the plaintiffs had to show that the defendants performed activities described in the long-arm statute and that such activities constituted the minimum contacts that due process required. The long-arm statute provided jurisdiction over the defendants who insured anything in Missouri. The plaintiff cited the parties’ mechanics’ lien bond, but that bond covered only judgments of New York courts related to construction in New York. The plaintiff also cited a contract with a forum selection clause specifying St. Louis County, but the defendants were not parties to that contract. The circuit court dismissed the action and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
Hammer & Steel, Inc., Appellant, v. The J. Pilla Group, Ltd., and Philadelphia Indemnity Insurance Company, Respondents
Missouri Court of Appeals, Eastern District - ED113773

Constitutional

Rejected arguments were colorable at best
On a charge of domestic abuse, evidence that the defendant also damaged the victim’s car was admissible and “highly probative” to show the defendant’s mental state and explain the victim’s conduct. The sentence was subject to enhancement on facts that showed the defendant’s persistent offender status, so a jury had to find such facts. The governing statutes did not require a jury, but a rule and instructions did, so the Supreme Court of Missouri recently rejected a constitutional challenge to the statutes. That rendered the defendant’s argument merely colorable and not real or substantial, removing the appeal from the Supreme Court’s exclusive appellate jurisdiction. The Missouri Court of Appeals denied transfer and affirmed the conviction.
(Overview summary)
State of Missouri v. Michael Leroy Butler
Missouri Court of Appeals, Western District - WD87979

Criminal

Self-defense negated
The State had the burden to disprove beyond a reasonable doubt the defendant’s claim of self-defense. “Self-defense only provides a defense … when the danger is imminent, not when the victim is in retreat.” Self-defense with deadly force included an element of reasonable belief that deadly force was necessary to avoid death, serious injury, or a forcible felony. The State rebutted that reasonable belief with evidence that the defendant shot the unarmed victim four times — twice while the victim was fleeing and twice more while the victim was on the ground — so the circuit court did not err in denying the defendant’s motion for acquittal. The record showed that the circuit court based its sentence on the parties’ agreement, in which the defendant “shrewdly” waived jury sentencing, including findings of fact supporting a greater sentence, so the Missouri Court of Appeals declined plain error review of the sentence and affirmed the convictions.
(Overview summary)
State of Missouri, Respondent, v. Daryl Clemmons, Appellant
Missouri Court of Appeals, Eastern District - ED113421

Police officer knew the sound of racking a pistol
Preserving error required raising an objection and repeating it in a motion for new trial and on appeal. The defendant raised one objection at trial and another objection in the motion for new trial and so preserved neither objection. That left discretionary review only for plain error. Plain error meant an obvious error that resulted in a manifest injustice or miscarriage of justice, meaning that the erroneously admitted evidence was outcome determinative, which generally depended on the strength of other evidence. The statutes applicable to facts were the statutes in effect when the facts occurred. When the facts occurred, armed criminal action included unlawful use of a weapon by angry display of a firearm, an exception for unlawful use of a weapon having been repealed decades ago. Qualifications to testify as an expert included Daubert factors and the circumstances of a particular case, among which were whether the testimony was helpful to the jury. A police officer’s “extensive” training and experience with firearms put the officer “in a better position to know” the sound of a pistol being racked than the average juror. The Missouri Court of Appeals exercised its discretion against plain error review. The Court of Appeals reversed and remanded the judgment for a correction nunc pro tunc, to note the degree of domestic violence of which the jury found the defendant guilty, and the defendant’s status as a prior and persistent offender. Otherwise, the Court of Appeals affirmed the convictions.
STATE OF MISSOURI, Plaintiff-Respondent v. ERNESTO VALENTINO BELL, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD39090

Sentences had to run consecutively
The State could not convict any defendant of any offense alleged to have occurred on one date with evidence of an offense that occurred at wholly different time period, but the State’s evidence was sufficient to show that the charged offenses occurred on the date alleged. Offenses occurring at the same time had to result in consecutive sentences and the record showed that the circuit court carefully considered the facts on which the circuit court based the sentences “unaffected by any mistaken belief.” The Missouri Court of Appeals affirmed the convictions.
(Overview summary)
State of Missouri v. Gerald L. Smith
Missouri Court of Appeals, Western District - WD87798

Evidence

Propensity evidence was okay
Propensity evidence was admissible specifically for the offenses charged on a foundation that included probative value that outweighed unfair prejudice. Prior conduct was probative of a charged offense and a guilty plea to prior conduct removed all doubt. Differences of four years in the ages of victims and 17 years between prior conduct and charged offense did not negate probative value. “The evidentiary challenges presented by this type of case — coupled with the defense’s attack on the credibility of the State’s witnesses, including Victim — enhanced the probative value of the propensity evidence.” Proof of the prior conduct by documentary evidence of a conviction without undue emphasis, and proper jury instructions, diminished unfair prejudice. The Missouri Court of Appeals affirmed the convictions.
(Overview summary)
State of Missouri v. Curtis Carl Benenhaley, Jr.
Missouri Court of Appeals, Western District - WD87942

Local government

Trial procedure for municipal ordinance violations explained
In prosecutions of municipal ordinance violations, trials proceeded like a criminal action but remained civil actions. So, on trial de novo, a request for jury was due ten days before trial. The defendant’s request on the day of trial was untimely, and the circuit court did not err when denying it. On motions to compel discovery, the defendants had to show the circuit court how requests were reasonable and not just possibly helpful and, on denial, show an appellate court how the denial was outcome-determinative. The defendant failed to meet those standards as to other citations issued by the citing officer and manuals for a laser speed detector. Circuit courts did not have to delay judgment until the time for filing a motion for new trial expired and the defendant consented to immediate sentencing. Sentencing made the judgment final and started the time to appeal. Circuit courts had to advise the defendants of appeal rights, but the defendant’s knowledge of appeal rights negated any prejudice. The Missouri Court of Appeals affirmed the conviction.
(Overview summary)
City of Kansas City, Missouri v. Charles Lamar Burgett
Missouri Court of Appeals, Western District - WD88171

Ordinance was not in evidence
Municipal ordinances were subject to judicial notice only if filed with the circuit clerk and available for inspection. Otherwise, a certified or published copy was necessary for entry into the record. “Without proof of the ordinance supporting [defendant]’s conviction, no element of the offense is known, let alone established, resulting in a manifest injustice and a miscarriage of justice.” The city failed to enter the ordinance governing one set of the allegations against the defendant, so conviction on that charge was plain error. The Missouri Court of Appeals reversed that conviction.  
(Overview summary)
City of Kansas City, Missouri v. Charles Lamar Burgett
Missouri Court of Appeals, Western District - WD88170

Personal injury

Wrongful death petition untimely served must be dismissed
Circuit courts had to dismiss wrongful death petitions not served on the defendant within a specified time. The circuit court had no authority to extend the deadline. That applied to claims — however denominated — alleging death as a result of medical negligence, to a claim seeking damages for the decedent’s pain and suffering before death, and to claims for loss of consortium and economic loss from the decedent’s death. Because the plaintiff had already voluntarily dismissed the petition, the involuntary dismissal had to be with prejudice. The elements of a claim for negligent infliction of emotional distress included placement of claimant’s own person in a zone of physical danger. The plaintiff did not allege such facts, and so failed to state a claim for relief, which required dismissal without prejudice. The Missouri Court of Appeals made permanent its writ of prohibition barring any action except dismissal of those counts with prejudice, except the claim for negligent infliction of emotional distress, which the circuit court had to designate as with or without prejudice.  
STATE OF MISSOURI EX REL. BUTLER COUNTY EMS, LLC., Relator v. THE HONORABLE KACEY LEE PROCTOR, JUDGE OF THE CIRCUIT COURT OF BUTLER COUNTY, Respondent
Missouri Court of Appeals, Southern District - SD39365

Post-conviction

Assistance with plea bargaining was not deficient
Assistance of trial counsel included evaluating plea bargains. The movant claimed that a mental health examination would have helped the movant make a better decision on the State’s offer but his testimony rebutted that allegation. And the movant claimed that knowing that death was a possible sentence would have helped the movant make a better decision on the State’s offer but the State never sought the death penalty. Those facts showed that the trial counsel’s performance was not deficient. Also, the movant never intended to plead guilty so the movant experienced no prejudice. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment.
SETH ANDREW GOMEZ, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD39082

Plain error review declined, post-conviction relief possible
A matter on which an appellate court declined plain error review was subject to review for ineffective assistance of counsel. A claim not raised in the motion was unpreserved on appeal, even when the motion alleged facts relevant to the claim. Choosing to cross-examine an expert, instead of objecting to the expert’s testimony, was sound strategy. The movant did not show that a prior conviction had been expunged, so the movant did not show that trial counsel was ineffective for not knowing about the expungement. Trial counsel was not ineffective for choosing against making a meritless objection, like a relevance objection to relevant impeachment testimony. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment.
CURTIS JEROME WEBB, JR., Appellant v. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD39101

Confession instruction was contrary to sound strategy
The elements in a claim of ineffective assistance of counsel included deficient performance, which a sound strategy negated. Trial counsel chose to characterize the movant’s confession as exaggeration, which was a sound strategy because the confession was thorough, detailed, repeated, and corroborated by other evidence. The instruction on when to disregard a confession would have been inconsistent with that strategy and would not likely have altered the outcome. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
Larry D. Ratliff v. State of Missouri
Missouri Court of Appeals, Western District - WD87922

Civil

Reading deposition at trial was okay 
The plaintiffs showed no prejudice from the grant of the defendant’s motion for continuance, and the record showed that the continuance benefitted the plaintiffs, so the circuit court did not err. Preserving error in a jury trial required more than a motion for new trial; it required a timely objection. Unpreserved error was subject to review only for discretionary plain error. Plain error review required a facial showing of obvious error. No error occurred when a party read into the record some excerpts from an expert’s deposition as the parties agreed, so the Missouri Court of Appeals declined plain error review. The circuit court entered judgment for defendants, and the Court of Appeals affirmed the judgment. 
GILBERT MUCKE and AMY MUCKE, Appellants v. SRC CUSTOM HOMES, LLC, ET AL., Respondents 
Missouri Court of Appeals, Southern District – SD39113

Dismissal as a sanction affirmed, attorney fees for frivolous appeal awarded 
The plaintiffs sued to collect fees and the defendant counterclaimed to enforce rights already assigned to a third party. For that, the plaintiffs sought and received a dismissal of the counterclaim as a sanction against baseless claims. The defendant did not show that such a motion and order had to follow the procedure for dismissal on other grounds or summary judgment. On appeal, mischaracterization of the record and briefing deficiencies showed bad faith. The Missouri Court of Appeals affirmed the judgment and awarded damages against the defendant’s counsel to plaintiffs. 
(Overview summary) 
Pitzer Snodgrass, P.C., Respondent, v. Frederich Construction, Inc., Appellant, v. Louis J. Basso, P.C., Respondent 
Missouri Court of Appeals, Eastern District – ED113973

Evidence inadmissible at trial was okay for summary judgment 
“Summary judgment is not an extreme or drastic remedy.” It was owed to a defending party movant who negated an element of the claimant party’s theory by establishing in the prescribed format. The moving parties established facts by reference to supporting evidence and such evidence need not be admissible at trial to be admissible on summary judgment. Specifically, discovery materials like depositions, even from a different action, were admissible on summary judgment. Failure to deny and contradict the movant’s facts in the required format and with references to evidence constituted an admission. The elements of legal malpractice included proximate causation between an attorney’s negligence and the plaintiff’s damages, which required an examination of the case within the case. The case within that case was for deliberate indifference to a medical need. The defendant negated that element with evidence of their attention to the plaintiff’s condition. The circuit court granted summary judgment for the defendants, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Sheryl Gentry, Appellant, v. Craig J. Concannon, Respondent 
Missouri Court of Appeals, Eastern District – ED113791

Contract

Quantum meruit instruction was erroneous 
In an action for breach of contract, the elements included damages. The plaintiff claimed that rents were due but offered no evidence of rental value, only of yearly operational costs. Instructions had to have support in the record. Instructions could not mislead or confuse jurors and departure from approved instructions raised a presumption of prejudicial error. The submitted instruction on quantum meruit used “and/or,” which “creates an internal inconsistency within the instruction.” It also omitted a required conjunction. The instruction required the jury to find whether a party delivered services greater than “a typical broker” of airplanes, but “typical” was not the subject of any evidence. And the description of services did not distinguish between those admittedly already compensated and those yet unpaid, resulting in a roving commission. The Missouri Court of Appeals reversed the judgment as to breach of contract and remanded the judgment as to quantum meruit. 
(Overview summary) 
The Ritchie Group, LLC, Appellant/Cross-Respondent, v. Air Sansone, LLC, Lieber Spirit, LLC, and Steve C. Lieber, Respondent/Cross-Appellants 
Missouri Court of Appeals, Eastern District – ED113745

Criminal

Sufficient evidence negated plain error review 
Failure to preserve error, by omission from a motion for new trial, left only review for plain error, in which the burden included showing that the defendant’s “rights will suffer so substantially from the error that a miscarriage of justice or manifest injustice will occur if the error is left uncorrected.” Such was not the case where sufficient evidence supported the verdict. The defendant objected to the State’s argument that, in context, explained the law of self-defense in response to the defendant’s argument. The circuit court did not err in overruling the defendant’s objection. The Missouri Court of Appeals declined plain error review and affirmed the conviction. 
STATE OF MISSOURI, Plaintiff-Respondent v. ELIJAH N. WARD, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD38988

Rape Shield Statute applied 
To preserve error in the exclusion of evidence, the ruling on a motion in limine was not enough. The parties had to offer the evidence at trial, or at least state that they intend to offer it. The circuit court’s statement that the ruling in limine would stand was then enough to preserve error. The Rape Shield Statute generally barred evidence of a victim’s prior complaints of sexual assault with limited exceptions. The exception for knowingly false allegations required more than an investigative report finding the prior allegation “unfounded.” The exception for closely connected circumstances had to be relevant to some fact at issue, which the defendant did not show. The judicially created “right to fair trial” exception did not apply to impeachment evidence. Curative admissibility allowed rebuttal of inadmissible evidence only, and the defendant did not show that he was rebutting inadmissible evidence. The circuit court did not bar evidence of the victim’s motivation to fabricate; the defense preferred not to pursue that line of inquiry. The Missouri Court of Appeals affirmed the convictions. 
(Overview summary) 
State of Missouri, Respondent, v. Joshua Wooten, Appellant 
Missouri Court of Appeals, Eastern District - ED113976

Environmental

Denial of solid waste permit affirmed 
Permits from the Missouri Department of Natural Resources were necessary to operate solid waste facilities and denials were subject to review before the Administrative Hearing Commission. The applicants had first to pass a preliminary site inspection to show compliance with standards set forth by regulations. Those regulations addressed the composition of the site, protection of groundwater, and other matters. An internal manual addressing those regulations did not constitute an unpromulgated rule, because it added no obligations to the applicant, and the commission did not rely on that manual anyway. Substantial and competent evidence showed that the appellant applicant’s site for a solid waste facility did not comply with regulations. Briefing violations prevented the review of other charged errors. The Administrative Hearing Commission denied the application and the Missouri Court of Appeals affirmed that decision. 
CARDS RE HOLDCO, INC., Petitioner-Appellant v. MISSOURI DEPARTMENT OF NATURAL RESOURCES, MISSOURI ADMINISTRATIVE HEARING COMMISSION, Respondents-Respondents 
Missouri Court of Appeals, Southern District – SD39190

Insurance

Products-completed operations hazard exclusion applied to deceptive opioid advertisement 
In actions for breach of a contract for insurance, the insured had the burden of proof on coverage, and the insurer had the burden of proof on an exclusion. Judicial definitions of policy provisions were controlling. The insurer’s liability policy excluded from coverage any injuries arising out of warranties and representations related to insured’s product. “Arising out of” was an unambiguous phrase meaning having causation in fact in. The insured’s umbrella and excess policies limited coverage to claims made and reported during the policies’ terms and the plaintiff did not timely make any claims. The circuit court denied relief to the plaintiff and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Opioid Master Disbursement Trust II a/k/a Opioid MDT II, Appellant, v. Ace American Insurance, et al., Respondent 
Missouri Court of Appeals, Eastern District – ED113635

Post-conviction

Abandonment inquiry was necessary 
Circuit courts could not extend the time for filing an amended motion after the time for filing had lapsed. Circuit courts’ authority over motions depended on compliance with, or an exception to, the timely filing requirement. Exceptions included abandonment by appointed counsel, which was presumed when the amended motion was late, and on which the circuit court had to make a determination. Unless abandonment already appeared in the record, or had support in an affidavit of appointed counsel, the circuit court had to conduct an inquiry and make findings of fact. None of those things happened, so the Missouri Court of Appeals dismissed the appeal and remanded the motion to the circuit court to conduct an inquiry on abandonment. 
TERRANCE LAMONTE JOHNSON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District – SD39268

Real estate

Dissolution of permanent injunction depended on equities 
To dissolve a permanent injunction constituted an attack on a final judgment, which rules narrowly allow when a judgment is “no longer equitable[.]” Equity did not turn solely on a change in law, but included facts unique to each case. An earlier permanent injunction in favor of the appellant landowners restricted neighboring respondent’s shooting range activities. A later statute purported to bar any such injunction. The circuit court erred in holding that the change in law alone was enough to support dissolution of the injunction. But, in the alternative, the circuit court also held that the equities favored dissolution based on findings of fact as to the effect of the range’s activities on landowners. The circuit court dissolved the injunction and the Supreme Court of Missouri affirmed the judgment. 
(Overview summary) 
Glendale Shooting Club, Inc., Respondent v. William K. Landolt and Jeri F. Landolt, Appellants 
Supreme Court of Missouri – SC101187

Public use was no bar to prescriptive easement 
The plaintiff stated a claim for a private easement only, not a public easement, even after moving to conform the pleadings to the evidence. On a claim for a private prescriptive easement, the plaintiff’s burden of proof included showing an adverse use, which the law presumed whenever a use was contrary to the owner’s rights. Such use did not have to include a claim of full ownership, and need not have been intentional, nor exclusive. But the use did have to be individual, meaning distinctive from other persons’ uses. The plaintiff supported that element with evidence that the plaintiff used the disputed alley to receive deliveries for the plaintiff’s business. The plaintiff’s belief that the alley was a public space did not negate that evidence. The circuit court denied the plaintiff’s claim, so the Missouri Court of Appeals reversed the judgment and remanded the action. 
(Overview summary) 
Louis Klingert, Appellant, v. Fred Lee, Nancy Lee, et al., Respondents 
Missouri Court of Appeals, Eastern District – ED113803

Tax

Historic tax credits were not subject to earnings tax 
The tax protest procedure was mandatory when the collector assessed disputed taxes, but not when taxpayers filed self-assessed tax by filing a return later rejected. The refund procedure was an alternative to payment under protest. The taxpayer’s returns, showing a refund due, constituted applications for refund. Historic tax credits did not constitute earned income and so were not subject to a city’s earnings tax. 
(Overview summary) 
Laurel Apartments Master Tenant, LLC, and Laurel Hotel Master Tenant, LLC, Respondents, v. City of St. Louis, Missouri and Gregory F.X. Daly, Collector of Revenue for the City of St. Louis, Appellants 
Missouri Court of Appeals, Eastern District – ED113753

Appellate

Sufficiency of the evidence discussed 
When challenging the sufficiency of the evidence to challenge convictions, the appellants had to engage in a specific analysis: Identify the unsupported element, set forth the evidence tending to support that element, and show why such evidence did not support that element. The appellant failed to follow that analysis. The elements of second-degree rape included knowledge that the defendant did not have the victim’s consent. Supporting evidence included the interactions between the defendant and the victim, the defendant’s flight from the scene of the crime, and the victim’s search for help. The jury did not have to believe the defendant’s testimony. The Missouri Court of Appeals affirmed the conviction. 
(Overview summary) 
State of Missouri v. Warren Eric Carter 
Missouri Court of Appeals, Western District – WD87713

Criminal

AG aid to prosecuting attorneys included filing charges 
“[A] writ may be used when a trial court erroneously decides an important question of law, and no adequate remedy at law exists.” At the governor’s direction, the attorney general had to aid prosecuting attorneys with duties in circuit court. Those duties included commencing criminal actions. The governor directed the attorney general to aid the prosecutor in the action against the defendant, the attorney general filed a criminal complaint, and the defendant moved to dismiss the action. The circuit court granted the motion. Aiding prosecuting attorneys included commencing criminal actions, so the Missouri Court of Appeals issued a preliminary writ of prohibition against the circuit court and made the writ permanent. 
STATE ex rel. ATTORNEY GENERAL CATHERINE L. HANAWAY, Relator v. THE HONORABLE CHRISTINA L. KIME, ASSOCIATE CIRCUIT JUDGE, Respondent 
Missouri Court of Appeals, Southern District – SD39330

Witness didn’t receive offer, tampering conviction affirmed
The elements of tampering with a witness included offering to confer a benefit. Defendant believed that a witness owed defendant money and wrote an offer to forgive that debt if the witness withheld information. The witness disagreed that any debt was owed, and never learned of the offer, but the purpose of tampering with the witness was sufficient to support the finding of guilt. The Court of Appeals affirmed the conviction.
STATE OF MISSOURI, Plaintiff-Respondent v. RYAN L. STABENO, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD

Mental health

Foreign verdict was a guilty verdict 
In an action to commit someone to the Missouri Department of Mental Health’s custody as a sexually violent predator, the State had to show that the person had been found guilty of a sexually violent offense. Charged with such an offense under Oregon law, the appellant had received a verdict of “guilty except for insanity.” That verdict differed from a guilty verdict only as to dispositions, offering the possibility of alternatives to prison, but did require a unanimous finding on all elements of the offense. The circuit court ordered the appellant confined as a sexually violent predator, and the Missouri Court of Appeals affirmed that judgment. 
IN THE MATTER OF THE CARE AND TREATMENT OF JASON OSBORN, A/K/A/ JASON D. OSBORN, A/K/A JASON DAVID OSBORN, Appellant v. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals, Southern District – SD38870

Appellate

Appeal was dismissed when record was incomplete 
The appellants had to file the record on appeal, system-generated or non-system-generated. For the latter, rules set forth the content of the record on appeal, including transcripts and documents. Documents required included pleadings and judgments. The appellant failed to comply with those requirements. The incomplete record would have required “speculation and guesswork” to resolve the appeal. After notice and an opportunity to correct, the Missouri Court of Appeals dismissed the appeal. 
(Overview summary) 
In Re the Matter of J.N.H. v. M.J.S.
Missouri Court of Appeals, Western District - WD88288

Appeal was dismissed for citing fictitious authorities 
The Rules of Appellate Procedure protected the impartiality of appellate courts and the certainty of appellate rulings, so failures to comply were grounds for dismissal. The appellant’s brief cited the record inaccurately in the statement of facts and argument, omitted the index of citations from the table of authorities, inaccurately cited authorities, and cited fictional authorities. The appellant’s "reliance on nonexistent case law and his misrepresentations regarding case holdings constitute ‘an abuse of the judicial system.’” The Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
State of Missouri v. Timothy H. Moore
Missouri Court of Appeals, Western District – WD88189

Appeal was dismissed for omitting the transcript 
The Rules of Appellate Procedure aid the resolution of appeals. The appellant had to file the record on appeal, including transcripts of evidentiary hearings. The appellant challenged the evidentiary basis for the judgment but did not file a transcript of the evidentiary hearing. After notice and opportunities to correct, the Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
A.J.W. v. Nathan Shain Ford
Missouri Court of Appeals, Western District – WD88175

Civil

Jurisdiction and authority distinguished 
The subject matter jurisdiction of circuit courts was plenary and included matters over which circuit courts had no authority to grant relief. “[T]he court would still have subject matter jurisdiction to dispose of the [action] by denying the requested relief.” The defendant sought to dissolve a Colorado common-law marriage. The circuit court found that no marriage existed. But then, instead of denying relief, the circuit court dismissed the action for lack of subject matter jurisdiction. The Missouri Court of Appeals reversed the judgment and remanded the action for a ruling on the merits. 
(Overview summary)
S.J.M., Respondent, v. T.J.F., Appellant.
Missouri Court of Appeals, Eastern District – ED113863

Corporations and other legal entities

Corporate veils pierced 
The sufficiency of the evidence was always subject to appellate review whether preserved or not. Courts could disregard the corporate form and hold another entity liable for any limited liability company’s transaction when that other entity had “complete dominion” over the company’s policy, business practices, and finances as to that transaction. The defendant owned and controlled multiple limited liability companies that respectively operated long-term care facilities, another limited liability company that managed the facilities’ finances, and a further limited liability company that owned a limited liability company that provided pharmacy services to the facilities. Those facts supported a conclusion that the corporate forms were mere alter egos of defendant, so the defendant was liable for breach of a contract to sell the pharmacy company. The parties contracted to sell the pharmacy company to the plaintiff. The defendant knew that the pharmacy company’s service to some of the facilities was soon to terminate, because those facilities had been sold to a third party, and the plaintiff did not. Those facts showed fraud and a breach of contract. The plaintiff’s notice of claim under the contract was sufficient because it set forth the claims known to the plaintiff at the time of the notice. The evidence also showed that the co-defendant had only a small minority ownership interest in, and supervision of finances for, the management company. Those facts did not support a conclusion that the corporate forms were mere alter egos of co-defendant. The Missouri Court of Appeals reversed and remanded the judgment for further proceedings on the co-defendant’s liability. 
(Overview summary)
Pharmacy Corporation of America, Respondent, v. Binyamin M. Klein, et al., Appellants, and Paresh Vipani, Individually and as Trustee of the Paresh Vipani Revocable Trust Dated August 29, 2021, Defendant.
Missouri Court of Appeals, Eastern District – ED113688

Criminal

Plain error declined on strategic choice 
The elements of plain error review included an essential right, and obvious error affecting such right, and a resulting manifest injustice. On such a facial showing, appellate courts could still decline review. The appellant cited the admission of his non-Mirandized statements into evidence. But the statements did not occur pursuant to any attempt to circumvent Miranda, the appellant stated “no objection” to them, and that choice was strategic. The Missouri Court of Appeals declined plain error review and affirmed the convictions. 
(Overview summary)
State of Missouri, Respondent, v. Rodney Collins, Appellant.
Missouri Court of Appeals, Eastern District – ED113650

Differing verdicts on one set of facts were not inconsistent 
To preserve error in inconsistent verdicts, the defendant had to raise the matter before the circuit court discharged the jury, and failure to do so left only plain error review. The elements of burglary in the second degree included the purpose of committing an underlying crime in the burgled building. The other crime charged was violation of a protective order, on which the jury acquitted the defendant, while finding the defendant guilty of second-degree burglary. Those verdicts were not inconsistent because they had different elements and completion of the underlying offense was not an element of second-degree burglary. The Missouri Court of Appeals declined plain error review and affirmed the judgment. 
STATE OF MISSOURI, Plaintiff-Respondent v. STEVEN A HILGEDICK, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD39008

Proof of possession discussed 
On a challenge to the sufficiency of the evidence, appellate courts ignored all evidence and inferences contrary to the verdict and determined whether the remaining evidence was enough to convince a reasonable fact-finder of the defendant’s guilt. The elements of possessing a controlled substance included the defendant’s control of the substance and knowledge of what the substance was. The State supported those elements with evidence that the defendant owned and was driving the truck in which the substance was, admitted using the substance, tried to hide the substance, denied the presence of the substance that was in plain sight, and made other false statements to law enforcement. And the presence of the substance within the defendant’s easy reach was enough to show actual possession. The Missouri Court of Appeals affirmed the conviction. 
STATE OF MISSOURI, Plaintiff-Respondent v. STACIE DEWAYNE BLACK, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD39067

Joinder of separate incidents was okay 
Grounds for joinder of multiple charges in a single action included similar character and a continuing plan. The State alleged two incidents of domestic violence 12 weeks apart at the same place against the same victim and victim’s mother, so the charges were sufficiently related for joinder. The evidence was sufficiently straightforward to avoid jury confusion, as the jury’s acquittal on one charge showed, so the circuit court did not abuse its discretion when it denied the defendant’s motion to sever. The incidents were so closely related that, if the later event were tried alone, evidence of the earlier incident would have been admissible at such a trial. The Missouri Court of Appeals affirmed the conviction. 
(Overview summary)
State of Missouri v. Cadilac Meshawn Derrick
Missouri Court of Appeals, Western District – WD87697

Warrant to search one person’s premises included another person’s purse 
Preserving errors on the admission of evidence required the appellants to appeal the overruling of their objections when the State offered the evidence, and appealing the denial of a motion in limine was insufficient, leaving review only for plain error. Plain error review was discretionary and unlikely “when the appellant’s actions or inactions caused or contributed to the error alleged.” The defendant did not seek a continuing objection to the challenged evidence and stated “no objection.” The Missouri Court of Appeals declined plain error review and affirmed the conviction. 
(Overview summary)
State of Missouri v. Julie Catherine Mahler
Missouri Court of Appeals, Western District – WD88165

Bias not shown
Grounds for a change of judge included bias, meaning partiality from an extra-judicial source. At sentencing, defendant blamed defense counsel’s practice for defendant’s flight from Missouri, and the circuit judge commented on defense counsel’s practice. That comment did not show partiality and defendant did not show any extra-judicial source of favor. Denying defendant’s motion to recuse the circuit judge did not constitute an abuse of discretion, especially when another judge ordered the denial. The Court of Appeals remanded the judgment for correction nunc pro tunc and otherwise affirmed the convictions.
STATE OF MISSOURI, Respondent v. ROBERT WILLIAM SHIELDS, Appellant
Missouri Court of Appeals, Southern District - SD38971

Evidence

Delayed disclosure testimony 
Appellate review was usually for reversible error. Expert testimony was admissible only on a foundation that could include the witness’s experience. The State’s expert provided evidence of the witness’s experience with hundreds of children disclosing sexual contact so admission of the testimony was not error. And the testimony was cumulative, which was never prejudicial. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
State of Missouri, Respondent, v. Terrance Cadwell, Appellant.
Missouri Court of Appeals, Eastern District – ED113547

Legal relevance discussed 
Legal relevance meant that evidence’s probative value outweighed its prejudice, meaning “‘unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulativeness.’” The elements of statutory sodomy included a purpose of arousing or gratifying sexual desire, making relevant the defendant’s motivation. Motivation was subject to proof through circumstantial evidence. The State’s evidence included testimony that the defendant was aroused on other occasions when the victim was present in the witness’s residence. The circuit court did not err in overruling the defendant’s objection to the evidence. And overwhelming evidence supported the finding of guilt, negating prejudice. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
State of Missouri, Respondent, v. Lawrence Kloeppel, Appellant.
Missouri Court of Appeals, Eastern District – ED113539

Family

Purging of contempt mooted appeal 
Judgments of civil contempt enforced judicial orders by coercing compliance, so compliance with such orders mooted judgments of contempt. The circuit court’s decree of dissolution ordered the obligor appellant to pay certain sums, the obligor failed to do so, the obligee sought and received a judgment of contempt, the circuit court ordered confinement of obligor stayed pending compliance, and the obligor complied. Neither failure to comply with another order, which was not subject to the motion for contempt, nor post-trial motions filed after purgation altered that result. The stigma of a contempt judgment was less than a finding of juvenile or criminal guilt and was insufficient to support an exception for the public interest. The Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
Christina Dougherty, Respondent, v. Richard A. Mueller, Appellant.
Missouri Court of Appeals, Eastern District – ED113962

No appeal until all property divided 
The Missouri Court of Appeals had jurisdiction over final judgments, which in the case of actions for dissolution of marriage, included property division — classifying and awarding all property of the parties. The appellant appealed a judgment that identified some properties but did not divide them. That judgment was not final, so circuit court still had authority over the matter, and the Court of Appeals dismissed the appeal. 
(Overview summary)
Allison Renae Bomar, Respondent, v. Anthony Scott Bomar, Appellant.
Missouri Court of Appeals, Eastern District – ED113616

Dissolution decree was not final without division of business assets 
In any appeal, even when unchallenged, appellate courts always examined their jurisdiction. Jurisdiction over a final judgment included the judgment’s resolution of all issues. Issues in any action for dissolution of marriage always included classification and division of property. Property statements of both parties included business assets that the circuit court failed to address. The Missouri Court of Appeals dismissed the action, restoring the circuit court’s authority. 
(Overview summary)
Ryan Sandvoss, Appellant, v. Sarah Sandvoss, Respondent.
Missouri Court of Appeals, Eastern District – ED113512

Orders of protection

Harassment was not shown 
Judgments for full orders of protection were subject to appeal even after expiration. Full orders of protection could issue for harassment, which could consist of communications that caused “substantial emotional distress in a reasonable person.” The defendant’s communications with the victim did not rise to that level though they were “juvenile [,]” “annoying and boorish [.]” The Missouri Court of Appeals reversed and vacated the judgment. 
(Overview summary)
M.N.B., Respondent, v. A.J.R., Appellant.
Missouri Court of Appeals, Eastern District – ED113699

Appeal dismissed 
Appeals were subject to dismissal when moot subject to two exceptions. Orders of protection were moot when they expired. But expired orders of protection were still subject appeal generally under to a statute applying the public interest exception. And the appellant’s order was subject to appeal because the expiration occurred after the appeal was submitted. But review remained discretionary. The appellant committed “innumerable” and “flagran[t]” violations of the briefing rules, including misrepresentations of “what transpired at trial.” The Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
G.M., Respondent. v. T.M.G., Appellant.
Missouri Court of Appeals, Eastern District – ED113428

Distance from victim shown 
Circumstantial evidence could establish a fact beyond reasonable doubt if logical and not conjectural. The elements of class A misdemeanor violating a full order of protection included violating any provision of such an order. The order required the defendant to stay a specified distance from the victim. The State showed a violation of that provision with testimony of a witness who measured the distance from the defendant to the victim’s residence by eyesight, paces, and Google Maps. The Missouri Court of Appeals affirmed the conviction. 
(Overview summary)
State of Missouri v. Joey Everett Jonas
Missouri Court of Appeals, Western District – WD88080

Post-conviction

No relitigating appeal 
Post-conviction relief did not address matters reviewed for plain error in underlying criminal convictions if the matter did not constitute error or if no prejudice occurred. The appeal of the movant’s criminal convictions under plain error review addressed matters that did not constitute error, so no motion could charge trial counsel with ineffective assistance as to those matters. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Melvin Scherrer, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District – ED113649

Support was sufficient for findings on abandonment 
For a conviction appealed, an initial motion filed prematurely was deemed filed on the date that mandate issued on the conviction, so the movant’s initial motion was timely. The appointed counsel’s late filing of an amended motion raised a presumption of abandonment, which generally required the circuit court to conduct an evidentiary hearing to determine which motion to adjudicate. But no hearing was necessary when “the conclusion of abandonment is inescapable.” The amended motion showed on its face that post-conviction counsel had used the wrong revision of the governing rule, and miscalculated the time for filing, so no hearing on abandonment was necessary. The elements of a claim for ineffective assistance of counsel included the counsel’s deficient performance and resulting prejudice. Prejudice meant a reasonable probability that the outcome of trial would be different. Such allegations generally required the circuit court to conduct an evidentiary hearing to determine whether the allegations were true. But no hearing was necessary when the record had already refuted such allegations. The amended motion charged the trial counsel with failing to call an expert witness on psychological shock to explain away the movant’s inconsistent statements. But the movant did not allege that such a witness would have been available, nor show that such a witness would have helped, and other evidence of guilt was overwhelming. The amended motion charged the trial counsel with failing to seek a competency evaluation. But a competency evaluation required reasonable cause, and the movant did not allege facts constituting reasonable cause, nor show that the circuit court would have granted such a motion, and the record showed that the movant could understand the proceedings and consult rationally with counsel. The movant’s rejection of a plea agreement did not show that the movant was incompetent. The circuit court denied relief and the Supreme Court of Missouri affirmed the judgment. 
(Overview summary)
Glenda M. Young, Appellant, v. State of Missouri, Respondent.
Supreme Court of Missouri – SC101253

Real estate

Restrictive covenants waived 
The elements of challenging a ruling as against the weight of the evidence included identifying all evidence, and resolving all credibility determinations of contrary evidence, in favor of the ruling. The plaintiff appellants failed to do so for some of their points relied on, so the Missouri Court of Appeals dismissed those points. The intentions of grantors governed restrictive covenants. In an action for declaratory judgment, the circuit court found that the grantor of the parties’ land intended the restrictive covenants to limit construction to one-family residences only and only one per lot. Newspaper advertisements to the contrary were not credible because the advertiser was not the grantor. Widespread non-compliance with non-severable covenants constituted a waiver of all non-severable covenants, and the circuit court found many instances of the plaintiffs’ non-compliance with the restrictions on construction and materials. The circuit court found that the grantor intended those covenants to be non-severable, so the circuit court concluded that the covenants were unenforceable. On appeal, the appellants challenged that conclusion, but not that underlying finding, which mooted whether the plaintiffs had standing to bring the action to begin with. The Missouri Court of Appeals affirmed the judgment. 
DIXIE SLEIGHT, et al., Plaintiffs-Appellants v. BK&M, LLC, et al., Defendants-Respondents 
Missouri Court of Appeals, Southern District – SD38733

Homestead exemption discussed 
Appeal was possible from special orders after final judgment, which included rulings on enforcement of, or attack on, final judgments. Judgments were final when ruling as to all parties on all claims. “An effort to ‘enforce . . . one legal right’ is ‘a single claim, regardless of the fact that it seeks multiple remedies.’” Therefore, on a pleading seeking payment under alternative mutually exclusive remedies, granting relief on one theory implicitly denied relief on all others. The judgment included pre-judgment interest, and claims for attorney fees had to be a separate action, so the judgment was final. The special order after judgment did not have to be denominated a judgment to perfect an appeal from it. Appellate courts affirmed judgments when circuit courts reached the right result without regard to the reasoning that circuit courts used. On execution of a judgment, a specified amount of value in a homestead was exempt from execution, so “the sheriff could not proceed with his levy until he . . . ascertained, in the mode directed by the act . . . the value of the premises, and that they are beyond the limit protected against executions.” That value remained undetermined when the special order issued, so the Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
All Acres Roofing, LLC v. Brandon Beau Ballard
Missouri Court of Appeals, Western District - WD88100

Administrative

Primary jurisdiction doctrine applied 
When the General Assembly assigned authority over facts to an executive-branch agency, claimants had to exhaust that administrative remedy before seeking relief in circuit court, and circuit courts refrained from exercising their jurisdiction over such matters under the “primary jurisdiction” doctrine. The Public Service Commission had exclusive primary authority to determine whether a public utility charged more than allowed. So, any theory of recovery premised on over-earning, like the plaintiff appellant’s claims for breach of contract and Merchandising Practices Act violations, had first to find resolution of the over-earning allegation before the Commission. The circuit court dismissed the claims without prejudice under the primary jurisdiction doctrine. Dismissal without prejudice constituted a final judgment when the grounds for dismissal were incurable by further pleading, or plaintiff chose against further pleading, or — as with the plaintiff’s claims — both. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary) 
Bryan Buck, on behalf of himself and all others similarly situated, Appellants, v. Union Electric Company, d/b/a Ameren Missouri, and Ameren Corporation, Respondents 
Missouri Court of Appeals, Eastern District - ED113772

Appellate

Without transcript, appeal dismissed 
Rules of appellate procedure required the appellants to file a brief that included argument supported by citations to authority and a statement of facts with references to the record on appeal. The record on appeal had to include transcripts of any “portions of the proceedings and evidence not previously reduced to written form and necessary to determination of the issues on appeal.” The issues on appeal included factual support for the ruling appealed. The circuit court’s findings of fact stood on evidence presented at a hearing, but the appellant did not provide a transcript of that hearing, and the appellant’s references to the record and authority were inaccurate, depriving the appellant’s challenge of legal and factual support. The Missouri Court of Appeals could not review the appellant’s challenge so it dismissed the appeal. 
(Overview summary) 
State of Missouri vs. James Frederick Wilson 
Missouri Court of Appeals, Western District – WD87896

Deficient appellant’s brief required dismissal 
Pro se appellants were not subject to penalty for self-representation but were also not exempt from briefing rules necessary to maintain judicial impartiality. The appellant did not follow rules governing statements of facts, points relied on, and arguments, including preservation statements and standards of review. Each theory for reversal had a distinct and mandatory analysis that the appellant failed to follow. Reviewing the appeal would require a court to construct arguments for the appellant so the Missouri Court of Appeals dismissed the appeal. 
(Overview summary) 
J.C.T., Appellant, v. A.N.G., Respondent 
Missouri Court of Appeals, Eastern District – ED113730

Civil

Judgment could only award damages to a party 
“Trial courts only have the authority to grant relief for or against parties to an action.” The plaintiff brought an action for ejectment against John Miller, Jr. However, the “John Miller, Jr.” who answered and litigated was really John Miller III. John Miller III was not occupying the property and never joined the action. Nevertheless, John Miller III filed a counterclaim for unjust enrichment based on repairs made to the property, prevailed on the counterclaim, and received an award. Because John Miller III was never a party, the circuit court had no authority to make that award and vacated the judgment as to the award. 
(Overview summary) 
Laura A. Hayes, Appellant, v. John Miller, Jr., et al., Respondents 
Missouri Court of Appeals, Eastern District – ED113836

Amended judgment was too late 
After the issuance of judgments that disposed of all issues after all parties, circuit courts retained authority in the action for a set time, subject to post-judgment motions. In an action for discovery of assets and injunctive relief, a trustee sought to recover trust assets. The circuit court resolved a preliminary injunction barring transfer of assets when the judgment ordered the transfer of assets. The circuit court resolved the discovery of assets when it found wrongful distribution of assets and ordered the assets restored to the trust. No party filed any post-judgment motion. The circuit court had no authority to issue an amended judgment after the time set by rule. The Missouri Court of Appeals vacated the amended judgment and remanded the action to the circuit court with directions to re-enter the judgment. 
(Overview summary) 
Robert L. Herron, Sr., et al., Appellant, v. Morgan Stanley Smith Barney, LLC, et al., Respondent 
Missouri Court of Appeals, Eastern District – ED113254

Corporations and other legal entities

Allowing unlicensed representation was plain error 
Limited liability companies were legal entities separate from their owners that could only do anything through an individual. Only a licensed lawyer could represent any legal entity. The defendant filed a motion to dismiss the defendant’s LLC and the defendant. The defendant was not a licensed lawyer, so the filing was a nullity and the circuit court had no authority to grant it. “By filing the joint motion on behalf of the [LLC] and himself, he invalidates the entire pleading despite his right to self-representation.” Plain error occurred when the circuit court granted the motion. The Missouri Court of Appeals reversed the judgment and remanded that action. 
(Overview summary) 
Christopher Prosser, Appellant, v. Daniel Kellas d/b/a Over There Land Company, Respondent 
Missouri Court of Appeals, Eastern District - ED113891

Criminal

Sentence not corrected 
The defendants could waive the right to counsel. To make sure that such waivers were knowing and intelligent, rules and statutes set forth a procedure that included a Faretta hearing and a written form, the use of which raised a presumption of valid waiver. The defendant did not rebut that presumption. Advice on potential defenses was not necessary to an otherwise thorough colloquy. The Missouri Court of Appeals remanded the action to circuit court only to conform, by order nunc pro tunc, the sentence as written to the sentence as spoken on some counts. As to other counts, the Court of Appeals did not address clerical errors in the written sentence in the defendant’s favor because the State did not appeal. 
(Overview summary) 
State of Missouri vs. Lydell R. Walker 
Missouri Court of Appeals, Western District – WD87744

Judgment corrected by nunc pro tunc 
Clerical errors in judgments were subject to correction by orders nunc pro tunc solely to show what happened in circuit court. The sentence in the written judgment was 999 years. The sentence authorized were confinement for terms of either 10 to 30 years, or life. The sentences as announced were consecutive life imprisonments. The Missouri Court of Appeals remanded the action for an order nunc pro tunc conforming the sentence as written to the sentence as spoken. 
(Overview summary) 
Safeco Insurance Company of Illinois, Plaintiff; Erica Doss vs. Janae Bruce 
Missouri Court of Appeals, Western District – WD87680

Reversible error in opening statements was hard to show 
As to whether an argument in opening statement constituted reversible error, the analysis was similar to closing arguments, except “the impact of the prosecutor’s opening statement diminishes after the parties introduce evidence and give their closing arguments.” When the State’s opening statement approached the limits of propriety, the circuit court refrained from intervening sua sponte, and the Missouri Court of Appeals declined plain error review on those facts. When a witness blurted inadmissible evidence, the remedy was in the circuit court’s discretion. A witness mentioned the defendant getting out of prison and the defendants asked only for a mistrial. Mistrial was not necessary for the brief, isolated, and vague mention while mistrial was a drastic remedy. The circuit court did not abuse its discretion in denying a mistrial and the defendant sought no other remedy, like a curative instruction. “To violate the rule prohibiting evidence of other crimes or misconduct by the accused, the evidence must show the accused committed, was accused of, was convicted of, or was definitely associated with, the other crimes or misconduct.” Even then, such evidence was admissible to give a complete picture of the events at issue. A witness testified that they feared the defendant, the defendant tried to impeach that testimony, and the State responded with limited evidence of defendant’s violent past. The circuit court did not abuse its discretion by admitting that evidence. And other “extensive” evidence of the defendant’s guilt negated prejudice from those evidentiary rulings. The Court of Appeals remanded the action to the circuit court, only for nunc pro tunc conformance of the sentence as written to the sentence as spoken, and otherwise affirmed the convictions. 
STATE OF MISSOURI, Respondent v. FABAYAN L. LARRY, Appellant 
Missouri Court of Appeals, Southern District – SD38987

Resisting arrest conviction affirmed 
On a charge of resisting arrest, the State’s burden included showing that the defendant knew or should have known that the defendant was being arrested. The State showed that element with evidence that the arresting officers told the defendant that defendant was under arrest and physically subdued the defendant. The Missouri Court of Appeals affirmed the conviction. 
STATE OF MISSOURI, Respondent v. JEREMY RUIZ-TOMASSINI, Appellant 
Missouri Court of Appeals, Southern District – SD39058

Scope of cross-examination explained 
Criminal defendants who chose to testify were subject to cross-examination. “The scope of cross-examination of a defendant is not limited to a categorical review of matters stated or covered on direct-examination but may cover all matters within a fair purview of the direct-examination.” The State alleged that the defendant violated a full order of protection by approaching the victims in a grocery store. The defendant took the stand and testified that he felt threatened by the victims, so he filed 22 petitions for orders of protection in one year against victims, none successful. That testimony brought orders of protection into the scope of direct for cross-examination. The State could ask about approaching a victim by whom he felt threatened. The State also questioned the defendant about the petitions that defendant had filed. That evidence primarily related to charges of harassment on which the defendant received an acquittal, so the defendant showed no prejudice. The record supported convictions for violation of a protective order and for resisting arrest by physical force with overwhelming evidence of guilt, negating any prejudice from the challenged cross-examination. The Missouri Court of Appeals affirmed the convictions. 
STATE OF MISSOURI, Respondent v. HAROLD EDWARD LEE, Appellant 
Missouri Court of Appeals, Southern District – SD39159

No plain error in sentence assessed without a jury 
The defendant’s sentence was subject to enhancement for persistent offender status, which was defined by earlier convictions, and which was a matter of fact for jury. But the defendant did not preserve any error on that point so only plain error review was possible. The elements of plain error review included an error that was obvious, affected a substantial right, and resulted in manifest injustice. Even then, review for plain error was discretionary. An unauthorized sentence always constituted obvious error. The defendant charged that the circuit judge found that the defendant had prior convictions, based on matters outside the record, and enhanced the defendant’s sentence. As proof, the defendant referred to the circuit judge’s mention of the defendant’s other “bad decisions” as set forth in a sentencing report. Those bad decisions, in the context of the circuit judge’s statement, could have referred to the defendant’s choice of associates, litigation strategy, or commitment to rehabilitation, so defendant showed no error. The circuit judge did not have to explain the sentence and the defendant did not seek clarification that would have shown — and preserved — error. And, even if error occurred, the circuit judge presumptively ignored matters outside the record, so the defendant could show no prejudice. Further, even if the defendant had shown those elements facially, the Supreme Court of Missouri would have declined plain error review because the defendant offered no more than speculation. The Supreme Court of Missouri affirmed the judgment. 
(Overview summary) 
State of Missouri, Respondent, vs. Desmond Harris, Appellant 
Supreme Court of Missouri – SC101233

Plain error was the same for a structural error as any other 
Instructions had to define certain words, and the elements of first-degree assault as charged included serious physical harm, for which the instructions did not include a definition. The defendant’s sentence was subject to enhancement for persistent offender status, which was defined by earlier convictions, and which was a matter of fact for jury determination. But the defendant did not preserve any error on those points so only plain error review was possible. The elements of plain error review included an error that was obvious, affected a substantial right, and resulted in manifest injustice. Even then, review for plain error was discretionary. All that applied even to structural error, so structural error did not necessarily constitute manifest injustice. Omitting the definitional instruction was an error, but did not cause manifest injustice, because the existence of serious physical injury was not the defense. An unauthorized sentence constituted error. But certified court records raised an inference that defendant was a persistent offender, and the defendant did not show that a jury would have imposed a lesser sentence, so the defendant could not show any manifest injustice. The Supreme Court of Missouri declined plain error review and affirmed the convictions. 
(Overview summary) 
State of Missouri, Respondent, vs. John D. Otis, Appellant 
Supreme Court of Missouri – SC101190

Exclusions and exceptions to Rape Shield statute discussed 
The Rape Shield statute allowed evidence of a victim’s prior accusations of sexual assault for the purpose of impeaching victim’s credibility, including by showing a motive to fabricate allegations, if the accusations were false and the victim knew they were false. To show that the victim’s prior accusations were false, the defendant offered only inadmissible and inconclusive evidence. The statute admitted such evidence under a res gestae situation, but the defendant did not show that the evidence was related to allegations. The fair trial exception did not apply to impeachment. Curative admissibility supported the admission of otherwise inadmissible evidence to counter inadmissible evidence, but the State’s evidence was not inadmissible. The record showed that the circuit court understood the evidence at issue and intended the error to be preserved so the absence of a full offer of proof did not negate preservation of error. The Missouri Court of Appeals affirmed the convictions. 
(Overview summary) 
State of Missouri, Respondent, v. Joshua Wooten, Appellant 
Missouri Court of Appeals, Eastern District – ED113976

First-degree statutory sodomy conviction affirmed 
The elements of first-degree statutory sodomy as charged included hand-to-genital contact, which the State showed with the victim’s testimony. The victim’s failure to use “anatomically correct language” did not alter that result. The Missouri Court of Appeals affirmed the conviction and remanded the action only for an order nunc pro tunc conforming the sentence as written to the sentence as spoken. 
(Overview summary) 
State of Missouri, Respondent, v. Jeffrey Sawtelle, Appellant 
Missouri Court of Appeals, Eastern District – ED113554

Self-defense negated 
The State had the burden to disprove beyond a reasonable doubt the defendant’s claim of self-defense. “Self-defense only provides a defense … when the danger is imminent, not when the victim is in retreat.” Self-defense with deadly force included an element of reasonable belief that deadly force was necessary to avoid death, serious injury, or a forcible felony. The State rebutted that reasonable belief with evidence that the defendant shot victim four times: twice while victim was fleeing and twice more while victim was on the ground. The defendant “shrewdly” waived jury sentencing, including findings of fact supporting an enhanced sentence, so the Missouri Court of Appeals declined plain error review of the sentence and affirmed the convictions. 
(Overview summary) 
State of Missouri, Respondent, v. Daryl Clemmons, Appellant 
Missouri Court of Appeals, Eastern District – ED113421

Employment

Summary judgment filings showed claims partly time-barred 
On a motion for summary judgment, the moving party prevailed by establishing facts, the facts that legally entitled the moving party to a favorable decision. If that happened, the non-moving party could avoid summary judgment by raising a genuine dispute as to the established facts. Parties could only establish or dispute facts with support by citation to admissible evidence. The defendant’s amended answer pleaded the applicable statutes of limitations, and plaintiff did not allege a continuing violation, so all events outside the filing period were time-barred. Whether events were time-barred depended on when the event occurred, so allegations and supporting evidence had to specify those times. The appellants always had the burden of showing reversible error. Otherwise, appellate review of summary judgment was de novo, so whether the circuit court relied on materials outside the summary judgment record was irrelevant on appeal. The record showed that some events were time-barred and others were not, but the circuit court dismissed the entire action, so the Missouri Court of Appeals affirmed that judgment in part and reversed in part. 
(Overview summary) 
Amber Ledbetter vs. Jackson County, Missouri 
Missouri Court of Appeals, Western District – WD88095

Evidence

Hearsay exclusions and exceptions discussed 
In voir dire, two venire persons indicated difficulty following instructions, both changed their answers but only one credibly. The two were therefore not similarly situated and the circuit court did not err in rejecting a Batson challenge on that basis. An excited utterance constituted an exception to the rule against hearsay because the utterance was during and because of a stressful event. Inconsistent testimony did not prove perjury; it merely presented a credibility determination for the jury’s resolution and the appellate court's deference. Imperative statements only commanded someone to do something. Questions, unless disguising an assertion, only sought information. Neither asserted any truth, and so could not be offered for the truth of any matter asserted, and so did not constitute hearsay. Statements offered only to explain later police conduct, and statements of then-present intent to do something later, were not offered for the truth of the statements and so were not hearsay. The State had the burden on self-defense, which it carried with evidence that defendant was the initial aggressor, which the jury believed, and appellate courts did not re-weigh. That included evidence of prior uncharged offenses by defendant against victim. The associated instruction was approved and presumptively correct. No evidence supported an instruction on an initial aggressor’s withdrawal from the conflict. The State’s closing argument could include any inference that the record reasonably supported. Appellate courts need not rule on plain errors alleged on circumstances that, the record showed, did not occur. The Missouri Court of Appeals affirmed the convictions. 
(Overview summary) 
State of Missouri vs. Damon E. Goodrich 
Missouri Court of Appeals, Western District – WD87003

Family

No challenge to supported facts on appeal 
Circuit court findings were due deference in appellate courts. In an action to terminate parental rights, the elements included a specified basis for termination and the child’s best interests as shown by specified factors. The latter was the subject of the appellant’s challenge, arguing that those findings were against the weight of the evidence. Such a challenge required the appellant to set forth all the evidence offered in support of those findings. The appellant failed to do so and merely argued against the findings. The circuit court terminated appellant’s parental rights and the Missouri Court of Appeals affirmed the judgment. 
IN THE INTEREST OF L.M.M., GREENE COUNTY JUVENILE OFFICE, Respondent v. W.D.P., Appellant 
Missouri Court of Appeals, Southern District – SD39281

Custody and support modified 
The Uniform Interstate Family Support Act provided that a State gained jurisdiction over a subject matter when the parents and child resided there. The movant’s relocation to Missouri constituted a substantial change in the circumstances necessary to modify custody. The movant showed the best interests of the child with evidence that the movant allowed more frequent and meaningful contact with non-movant than the non-movant with the movant. Disputes over the better school for the child were for the circuit court to resolve. In determining child support, circuit courts could impute earnings to an unemployed parent, but nothing showed that the movant was less than truly disabled. The non-movant wanted to show that one of the respondent’s allegations was false, but the respondent already agreed that the allegation might be false and other evidence showed that it was, so refusing to compel evidence showing that the allegation was false was no basis for reversal. The exclusion of cumulative evidence was always harmless even if erroneous. 
(Overview summary) 
Brandi Hunter, Appellant, v. Frank Bernhard, Respondent 
Missouri Court of Appeals, Eastern District – ED113642

Granting one adoption petition barred another 
Grandparents and foster parents each brought actions for adoption of a child. The circuit court granted the foster parents’ petition first. And the grandparents could not have appealed the foster parents’ judgment because the grandparents lacked standing in the foster parents’ action. That judgment mooted the grandparents’ petition. Because appellate courts do not review the merits of moot actions, the full merits of the adoption will never receive review. The appellants could have avoided that outcome if the circuit court had granted intervention or consolidation, but grandparents sought neither. The circuit court dismissed the grandparents’ action and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
In the Matter of: O.S. 
Missouri Court of Appeals, Eastern District – ED113259

No challenging credibility on appeal 
Appellate courts deferred to circuit court determinations of credibility and did not re-weigh the evidence. Unless a judgment shows otherwise, appellate courts assumed that circuit courts found the facts in accordance with their rulings, so no “detailed findings of fact” were necessary unless requested. In an action for dissolution of marriage, the appellant did not request findings of fact, and the record supported the circuit court’s property valuations. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary) 
Sheri R. Goodwin, Respondent, v. Shawn R. Goodwin, Appellant 
Missouri Court of Appeals, Eastern District – ED113589

Local government

Injunctive relief and inverse condemnation against levee districts discussed 
“[S]ummary judgment tests ‘simply for the existence, not the extent’ of genuine issues of material fact [,]” meaning “evidentiary issues are actually contested, are subject to conflicting interpretations, or … reasonable persons might differ as to their significance.” In an action for injunctive relief against a levee district, seeking alterations to protect adjacent landowners, statutes governing the operations of the district provided an adequate remedy at law, defeating injunctive relief. The Missouri Court of Appeals affirmed summary judgment for defendants as to injunctive relief. Inverse condemnation was a taking resulting from a nuisance by an entity with the power of eminent domain. Natural events could not support inverse condemnation, but the plaintiff landowners also alleged a fault of the defendant levee district in lowering its levee. The plaintiffs thus raised a genuine dispute as to causation that thwarted defendant’s motion for summary judgment. The Missouri Court of Appeals reversed summary judgment for the defendants. 
(Overview summary) 
Kipping Farms, LLC, et al. vs. Wakenda Levee District of Carroll County, Missouri 
Missouri Court of Appeals, Western District – WD88277

No recovery of fees for recycling not done 
The plaintiff filed an action for money had and received because the defendant city retained recycling fees without conducting any recycling. Sovereign immunity barred suits against the State and its political subdivisions. Sovereign immunity was not an affirmative defense, it was the rule, so the plaintiffs had to allege facts describing an exception. Exceptions existed only by statute and incorporated common law, and a city charter provision authorizing the collector of revenue to file suit did not constitute a waiver. Statutes authorized suit on contracts that were — and voided contracts that were not — authorized, wholly executory, written, and signed. And that exception’s negative implication barred equitable claims like quasi-contract, quantum meruit, and money had and received. Taking contrary to law constituted an exception but the plaintiff alleged no such law or fact. Proprietary functions were another exception but disposal of waste was a governmental function. 
(Overview summary) 
State ex rel. City of St. Louis, Relator, vs. The Honorable Joseph P. Whyte, Respondent 
Supreme Court of Missouri – SC101315

City had sovereign immunity from indemnification of police board’s liability 
Plaintiff sought indemnification, for judgments against city employees, from the city. Actions against the city were subject to sovereign immunity. Sovereign immunity barred suits against the State and its political subdivisions. The city could not waive sovereign immunity by implied consent so failure to raise sovereign immunity in circuit court was no bar to raising sovereign immunity on appeal. Sovereign immunity was not an affirmative defense, it was the rule, so the plaintiff’s prima facie case included pleading an exception. Exceptions existed only by statute and incorporated common law. The plaintiff alleged no facts describing an exception to sovereign immunity. The circuit court dismissed the action and the Supreme Court of Missouri affirmed that judgment. 
(Overview summary) 
Michael J. Holmes, Appellant, vs. Kenneth Zellers, Catherine Hanaway, Mayor Cara Spencer, Bettye Battle-Turner, Richard Gray, Thomas Irwin, Erwin Switzer, Francis Slay, and City of St. Louis, Respondents 
Supreme Court of Missouri – SC101250

Personal injury

DHSS employee had official immunity 
Courts decided a motion to dismiss for failure to state a claim by determining whether the non-moving party’s allegations described facts on which the law allowed relief on any theory. The appellant plaintiffs’ theory was that the defendant, a Department of Health and Senior Services investigator, had defamed the plaintiffs by reporting financial exploitation of a senior. But persons making discretionary decisions within the scope of their authority on behalf of government had protection from suit, under the doctrine of official immunity, absent a specific intent to cause injure. The plaintiffs did not allege any specific intent to injure the plaintiffs, only generalized malice or bad faith. Official immunity was an affirmative defense, but could appear on the face of a pleading, so the defendant could raise official immunity in a motion to dismiss without having filed an answer. The circuit court did not have to grant leave to amend, and the plaintiffs did not seek leave to amend, so the circuit court did not err in granting no leave to amend. The circuit court dismissed the petition, and the Missouri Court of Appeals affirmed that judgment. 
JENNIFER L. GOURLEY and ROBERT L. CREWDSON, Plaintiffs-Appellants v. JEFFERSON B. GOURLEY, DONALD MANN, and LESLIE ALBRECHT, Defendants-Respondents 
Missouri Court of Appeals, Southern District – SD39126

Post-conviction

Affirmative misadvice explained 
The elements of a claim for ineffective assistance of counsel included deficient performance by counsel. The movant alleged that trial counsel advised the movant that the movant’s waiver of the right to testify was subject to appeal. But the circuit court was free to disbelieve the movant and found that the movant had misinterpreted trial counsel’s advice, which the record supported. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
DERONE BOOKER, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District – SD38874

Plea bargain was knowing and voluntary 
On charges of second-degree murder, defenses included imperfect self-defense, which — if found by the trier of fact — reduced the facts to involuntary manslaughter. Imperfect self-defense was the use of force on an unreasonable belief of necessity to protect oneself. The movant alleged that counsel failed to inform movant of that possibility. But the record showed that movant took an Alford plea knowingly and voluntarily to avoid the risk of a longer sentence. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Mitchell Odom, Appellant, v. State of Missouri, Respondent 
Missouri Court of Appeals, Eastern District – ED113663

Record on abandonment inquiry was insufficient for review 
Whether the circuit court could consider an amended motion, or only the initial motion, depended in part on timely filing of the amended motion. Appointed counsel’s failure to timely file an amended motion could constitute abandonment, which excused the untimely filing, so circuit courts had to conduct a hearing to determine whether abandonment occurred. With inapplicable exceptions, that hearing had to be on the record so that appellate courts could determine whether the circuit court reviewed the right motion. The circuit court made its abandonment determination based solely on unsworn statements of counsel, which did not constitute an adequate record for appellate review. The Missouri Court of Appeals vacated the judgment and remanded the action to the circuit court to make a record on abandonment. 
(Overview summary) 
Tyrone Butler, Jr., Movant/Appellant, v. State of Missouri, Respondent/Respondent 
Missouri Court of Appeals, Eastern District – ED113628

Real estate

Probate statutes of limitation did not bar claims 
A defending party could prevail on summary judgment by establishing facts that constituted the elements of an affirmative defense. The probate code’s statutes of limitations barred actions only against “the estate, the personal representative, the heirs, devisees and legatees of the decedent” to recover on a decedent’s pecuniary debt. Those statutes did not bar any action against any other person, or to recover specific property, or to recover property of which equity deemed the plaintiffs to be the owner, which described all of the appellant plaintiffs’ claims. The Statute of Frauds barred enforcement of contracts for the sale of land without a writing, but had exceptions to protect equity, which described some of the plaintiffs’ claims. A defending party could also prevail on summary judgment by establishing facts that negated any one element of the claim. The elements of adverse possession included hostile occupation for ten continuous years. The 10 years need not have occurred immediately before the claim. The defendants failed to negate those allegations by reference to the petition. Nevertheless, the circuit court granted defendants’ summary judgment. The Missouri Court of Appeals vacated the summary judgment and remanded the action to circuit court. 
JACOB MARSHALL and SAMANTHA MARSHALL, Appellants v. LEIGH MARSHALL and DEANNA NEEDHAM, Respondents 
Missouri Court of Appeals, Southern District – SD39112

Notice of termination was sufficient 
To charge that a circuit court “erred as a matter of law” did not articulate any theory for reversal. Every point relied on had to cite one, but no more than one, theory for reversal. Some of the plaintiff appellant’s points relied on cited none and others cited more than one. The latter were multifarious, as in one point claiming that a ruling was both unsupported by the evidence and was against the weight of the evidence. Other points were unaccompanied by argument. The Missouri Court of Appeals dismissed all points except one. A written lease contract’s provision for attorney fees applied only to the contract’s parties. In an action for unlawful detainer, delivery of a demand for possession was necessary only as to an intruder occupant. The defendants were tenants. A month-to-month tenant was entitled to a 30-day notice of termination, which the plaintiff landlord provided, the parties’ confusion over the tenancy’s characterization notwithstanding. Damages included double rent for holdover months. The circuit court held otherwise, so the Missouri Court of Appeals reversed the judgment as to unlawful detainer and entered judgment on that count for the plaintiff. 
(Overview summary) 
Lifetime Property Investments, LLC., Appellant, v. DKIS, LLC, RMSM, LLC, and Rebecca Medlin, Respondents 
Missouri Court of Appeals, Eastern District - ED113432

Civil

Grounds for motions to set aside distinguished 
Supreme Court rules superseded statutes so, when a time limit for filing as set forth in a rule and a statute conflicted, the rule prevailed. Circuit courts could set aside a judgment that was irregular, meaning procedurally flawed, on a motion filed within a reasonable time that was not more than a year after the judgment issued. The movants filed too late to set aside a judgment as irregular. Circuit courts could set aside a judgment that was void. A motion on that basis was due within a reasonable time that could be more than a year. Void meant issued without due process of law, which included notice and an opportunity to be heard. The movants had notice and an opportunity to be heard on the respondents’ motion to dismiss, presented argument, and never asked for an evidentiary hearing. The circuit court dismissed the motion to set aside, and the Missouri Court of Appeals affirmed that judgment but denied an award of attorney fees for the appeal. 
(Overview summary)
Paul David Holmes and Lorna Kay Holmes, Appellants, v. The Greens of Broadmoor Condominium Association, et al., Respondents
Missouri Court of Appeals, Eastern District – ED113819

No collateral attack on a foreign judgment 
“Wisconsin and Missouri discourage collateral attacks on final judgments particularly when the party has not appealed that final judgment” including judgments of dismissal. In an action filed in Wisconsin, the plaintiffs received a judgment of dismissal from which they sought no relief by post-judgment motion or appeal. Instead, the plaintiffs pursued a parallel action in Missouri circuit court. On the defendant’s motion for summary judgment, citing the Wisconsin judgment, the plaintiffs argued that the Wisconsin judgment was procedurally flawed and not entitled to full faith and credit. Those arguments constituted a forbidden collateral attack on the Wisconsin judgment. The circuit court granted the motion for summary judgment and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Kristine Timmerman, Individually, and as Guardian of Bruce Timmerman, Appellants, v. Actuant Corporation, Enerpac Tool Group Corporation, Enerpac Corporation, and Laclede Chain Manufacturing Company, LLC, Respondents.
Missouri Court of Appeals, Eastern District – ED113598

Criminal

Causation explained for child endangerment 
The appellant possessed controlled substances in a manner accessible to minors, who ingested them and suffered ill effects, one fatally. The elements of felony child endangerment included “substantial risk to the life, body, or health of a child [.]” Substantial risk did not include causation, much less proximate cause, of injury or death, so intervening cause was not a defense. As to prior and persistent offender status, the appellant stipulated to evidence and waived a jury finding, so the Missouri Court of Appeals declined plain error review of that finding. The appellants’ briefs had to include an argument section with citations to authority that applied to the facts, which the appellant’s brief omitted. Challenges to a judgment as unsupported by substantial evidence required the appellant to address all evidence favoring the judgment, which the appellant failed to do. Points not properly briefed were abandoned. The Court of Appeals affirmed the convictions. 
(Overview summary)
State of Missouri, Respondent, v. Thomas Noonan, Appellant.
Missouri Court of Appeals, Eastern District – ED113787

No plain error in description of defense expert’s relationship to defendant 
The defendant did not unequivocally stand on his right to remain silent, so the circuit court did not err in denying the defendant’s objection to statements made during interrogation. Constitutional provisions required the State to correct any evidence that it knew to be false. Even if the cited matter was false, it was also corrected before the circuit court made its findings of guilt. And the defendant failed to raise and maintain the matter at the first opportunity, as necessary to preserve the matter, and did not seek plain error review. Contrary to an order in limine, the State referred to the defendant as a client of a defense expert and the circuit court did not intervene. On that matter, the Missouri Court of Appeals declined plain error review because the defendant did not describe any manifest injustice or miscarriage of justice, considering the presumption that the circuit court would consider only admissible evidence in a bench trial. The Court of Appeals affirmed the convictions. 
STATE OF MISSOURI, Plaintiff-Respondent v. STEVEN C. CALVERLEY, Defendant-Appellant
Missouri Court of Appeals, Southern District – SD38828

Evidence was inevitably found under standard procedures 
On review of the circuit court’s ruling on a motion to suppress, appellate courts deferred the circuit court’s findings of fact but reviewed the ruling on those facts de novo. Warrantless searches were mostly illegal and supported the suppression of evidence found as a result. But evidence that law enforcement officers found inevitably under standard procedures for conducting an arrest was an exception to the warrant requirement. That included the arresting officers’ asking whether the defendant needed anything from the defendant’s house, the defendant’s request for personal items, the officers’ entry into the house, and the officers’ finding of methamphetamine and a firearm. The circuit court denied the motion to suppress, and the Missouri Court of Appeals affirmed the convictions. 
STATE OF MISSOURI, Respondent v. STEVIE DON LINLEY, Appellant
Missouri Court of Appeals, Southern District - SD39047

Evidence

An admission authenticated a signature 
At issue was the authentication of an arbitration agreement. A lender offered an affidavit stating that the signature was the borrower’s. But the affidavit was not notarized. Affidavits without notarization constituted hearsay and a hearsay objection was sufficient to preserve the matter for appeal. Nevertheless, a finding that the borrower signed the agreement had support in the borrower’s repeated admissions. “[W]e are not critical of counsel’s strategic decision to admit what appears to be the truth.” The circuit court affirmed an arbitrator’s award and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
NCB Management Services, Inc., Respondent, v. Eleanor Wallace, Appellant.
Missouri Court of Appeals, Eastern District – ED113669

Post-conviction

Hearing loss did not require intervention 
The right to counsel included the right to understand what was happening at trial and consult with counsel about it. The movant alleged a hearing loss in each ear, never told the circuit court about it, and offered an audiology test taken a year after trial. During the trial, when the movant could not hear questions, trial counsel and the prosecutor repeated their questions until the movant understood them. As to the answers, the movant’s testimony showed that he heard them. Because the movant did not show that he could not participate in his defense, the movant did not show that trial counsel was ineffective for failure to remedy that problem. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
DANIEL FLOYD FRANKLIN, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District – SD38956

Probate

Guardianship denied 
In an action for guardianship, the plaintiff had the burden of proving the respondent’s incapacity at the time of the hearing by clear and convincing evidence. That burden never shifted. The plaintiff’s evidence was stale, and the respondent refuted the plaintiff’s allegations by showing that medication had controlled the respondent’s mental illness, so the circuit court entered judgment for the respondent. A ruling against the party assigned the burden of proof needed no supporting evidence. Therefore, a judgment against such a party was not subject to appeal for the absence of substantial supporting evidence nor as against the weight of the evidence. Even if it were, the petitioner failed to follow the analysis for such challenges. The Missouri Court of Appeals affirmed the judgment.
(Overview summary)
In the Matter of: Canaan S. Davis Barbara J. Falbo vs. Canaan S. Davis
Missouri Court of Appeals, Western District - WD88339

Administrative

Tort Victims Compensation Fund payments pro-rated, claims for balances dismissed
When the amount in the Tort Victims Compensation Fund fell short of payments due for the year, the fund paid victims on a pro rata basis. Payments from the fund were subject to determination by the Missouri Division of Workers’ Compensation, and division determinations were subject to review by decision of the Missouri Labor and Industrial Relations Commission. Appellant claimants did not seek review of the division’s determination before the commission and challenged that determination in circuit court. The claimants thus “brushed aside” an administrative remedy that they had to exhaust before seeking review in the courts. In circuit court, the division and the commission both had the capacity to sue and be sued under their official names, which generally constituted a waiver of sovereign immunity. But statutes governing the fund specifically provided that the unpaid amounts did not constitute a claim. “Any award pursuant to this subsection that cannot be paid due to a lack of funds appropriated for payment of claims of uncompensated tort victims shall not constitute a claim against the state.” That language constituted a specific reservation of sovereign immunity. The circuit court dismissed the action for failure to exhaust administrative remedies and under sovereign immunity, and the Supreme Court of Missouri affirmed that judgment.
(Overview summary)
Louise Jones, et al., Appellants, v. Missouri Labor and Industrial Relations Commission, et al., Respondents
Supreme Court of Missouri - SC101256

Sunshine Law expenses limited
The Open Meetings/Open Records Act provided that a public governmental body could file an action for declaratory judgment to determine the opening of records “at the expense of that public governmental body.” The act also provided an award of litigation expenses in actions to judicially enforce the act against a knowing or purposeful failure to disclose. In such an action, the parties settled, and the circuit court incorporated those provisions into its judgment. When the city failed to comply with the judgment, the requester filed a contempt action for judicial enforcement of the judgment and for an award of litigation expenses. The circuit court denied the award of expenses because the circuit court found that the failure to comply was not willful, not knowing, and not contumacious. That finding was subject to deference on appeal, so the contempt action could not include litigation expenses. And the contempt action was filed by the requester as a “subsequent and separate cause of action" from the city’s declaratory judgment action, so the contempt action was not “at the expense of that public governmental body.” The circuit court denied relief, and the Missouri Court of Appeals affirmed that judgment.
CITY OF VIENNA, Petitioner-Respondent v. SHERIFF HAROLD C. HEITMAN, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD39019

Appellate

Appellant sanctioned over brief generated by artificial intelligence
“[P]ro se appellants have successfully argued and won appeals in this Court using freely accessible caselaw.” Appeals from circuit court judgments began with notices of appeal. Notices of appeal had to specify the judgment appealed. The appellants had to assemble and file the record including the legal file and transcripts. The appellants had to brief their challenges to circuit court rulings in a prescribed format that protected judicial impartiality, including appendices, a table of contents, a statement of facts, points relied on conforming to a prescribed template, and arguments. Arguments had to refer to the record and cite authority. Authorities cited in the appellant’s arguments were fictitious opinions generated by artificial intelligence, which constituted a fraud on the courts and a waste of the respondent’s resources. After notice and an opportunity to correct, the Missouri Court of Appeals sanctioned the appellant with an award of attorney fees and dismissed the appeal.
(Overview summary)
Terrina Boatner, Appellant, v. Tina Hickerson, Respondent
Missouri Court of Appeals, Eastern District - ED113978

Family

Claim for modification of custody and support stated
On dismissal without prejudice for failure to state a claim, the movant could decline to amend the petition and appeal. As to an award of joint physical custody, a motion to deprive a party of previously awarded custodial status had to allege a substantial change in circumstances. But a motion only to adjust parenting time did not have to allege a “substantial” change in circumstances, it had only to allege a change that made some provision of the parenting time unreasonable. The latter characterized the movant’s allegations because the movant alleged that a change in employment made the movant better available for more parenting time. The movant also alleged that child wanted to reside with child’s half- or step-siblings, and to learn more about farming, both of which were possible at the movant’s residence. Those allegations negated the circuit court’s dismissal for failure to state a claim. Dismissal for discovery violations had no support in the record because, though the circuit court mentioned it when addressing the parties, it was not in the judgment and the respondent did not ask for it. The Missouri Court of Appeals reversed the judgment of dismissal and the accompanying award of attorney fees, and it remanded the action.
(Overview summary)
E.H. By His Next Friend Joseph Waltemath and Joseph Waltemath, Individually v. Shelby Herbert
Missouri Court of Appeals, Western District - WD88121

Local government

Jury required in de novo appeal from municipal division
In municipal division, the defendant had no right to a jury in the trial of a local infraction. Appeal from the municipal division’s ruling was by trial de novo in circuit court, where the defendant always had the right to a jury on timely request. “In both procedural and substantive terms, a trial de novo in the circuit court of a prosecution first initiated in the municipal court for the violation of a city ordinance proceeds as an original cause in the circuit court.” Whether the ordinance had a statutory equivalent was irrelevant. The Missouri Court of Appeals made permanent its preliminary writ of prohibition barring the circuit court from denying the relator’s request for a jury.
(Overview summary)
State of Missouri, ex rel., Christopher Bank, Relator, v. The Honorable William Bynes, Respondent
Missouri Court of Appeals, Eastern District - ED114506

Orders of protection

No threat necessary to support full order
The Child Protection Orders Act addressed abuse by household members and stalking by any person, including persons outside the household. The elements of stalking included a child’s, or a parent’s, reasonable fear of physical danger to the child. The plaintiff showed both with evidence of the children’s reactions to, and the parents’ protective measures against, the appellant’s conduct. No physical confrontation or threat was necessary. The circuit court issued a full order of protection and the Missouri Court of Appeals affirmed that judgment.  
(Overview summary)
C.W. for Minors F.R.W. and B.L.W. v. Kevin Herlihy
Missouri Court of Appeals, Western District - WD88264

Appellate

Appeal from associate division was trial de novo in circuit court
Statutes determined whether and how an appeal from a civil judgment was possible. For special statutory landlord-tenant actions in associate division, the statutes allowed a trial de novo in circuit court. That applied to an action to set aside a default judgment in such an action. In an action for rent and possession, the plaintiff respondent obtained a default judgment, the defendant appellant filed an action to set aside the default judgment, and the circuit court denied relief. The appellant filed a notice of appeal instead of seeking trial de novo. In the absence of a judgment from a trial de novo, the Missouri Court of Appeals had no jurisdiction, so it dismissed the appeal. 
(Overview summary) 
Sandra K. Farrell, et al., Respondents, v. HGP Management, LLC, Appellant 
Missouri Court of Appeals, Eastern District – ED113926

Deficient brief required dismissal 
The rules governing appellants’ briefs protected the impartiality of appellate courts. The appellant departed from those rules as to points relied on, argument, preservation statement, and citations to authority. The departures were so great that the Missouri Court of Appeals could not rule on the appellant’s challenges without constructing them for the appellant. The Missouri Court of Appeals dismissed the appeal. 
STACEY BROOKS, Claimant-Appellant v. LICENSE OFFICE SERVICES, LLC, Employer, and STATE OF MISSOURI, DIVISION OF EMPLOYMENT SECURITY, Respondent-Respondent 
Missouri Court of Appeals, Southern District – SD39398

Certification for appeal reversed 
Appeal was possible only from a final judgment, meaning a judgment that resolved all claims as to all parties, unless the circuit court certified an interlocutory judgment for appeal finding no just reason for delay. But circuit courts could only certify rulings that disposed of a “judicial unit,” meaning events unrelated to the rest of the action. The appellant’s action sought a variety of relief on a variety of theories, on one of which the circuit court ruled, and issued an injunction. The circuit court certified the ruling for appeal and the Missouri Court of Appeals stayed the injunction. But ruling and the remaining matters related to one set of facts: standards governing appellant’s operation of a landfill. The Court of Appeals dismissed the appeal, dissolved the stay, and remanded the action. 
(Overview summary) 
Pettis County Development Company, LLC and Presidio Environmental Services, LLC vs. Pettis County, Missouri 
Missouri Court of Appeals, Western District – WD88538 consolidated with WD88559

Appellant’s theory did not determine standard of review 
The insured’s automobile policy excluded from coverage any injury to a resident of the insured’s household. In an action to enforce the policy, the insurer claimed that exclusion for the insured’s child. The circuit court determined that the child was not a resident of the insured’s household. That determination was a finding of fact subject to deference on appeal. The appellant could not make that finding subject to de novo review by characterizing it as a misapplication of law. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary) 
Shelter Mutual Insurance Company vs. Trevor Hill, et al. 
Missouri Court of Appeals, Western District – WD88065

No record, no appeal 
A summary judgment granted in part on evidence offered outside the summary judgment record was really a bench-tried case. The appellant had to file the record on appeal but failed to file a transcript of, and the exhibits offered at, the evidentiary hearing. The appellant’s brief failed to comply with the rules governing the statement of facts and the points relied on to such a degree that speculation or advocacy were necessary to determine appellant’s argument. The Missouri Court of Appeals dismissed the appeal. 
(Overview summary) 
La'Tanya Renee Smith vs. John Pruitt Killian, Public Administrator, Personal Representative: Mona Warren 
Missouri Court of Appeals, Western District – WD87955

Civil

Statute of limitations on enforcing contracts for money owed applied 
When circuit courts granted a motion to dismiss without providing any reasoning, the reasoning was presumptively on the grounds set forth in the motion. The plaintiffs had to initiate any action for enforce a contract within five years of the breach, except that the plaintiffs had 10 years to enforce a written contract for the payment of money. The plaintiff alleged a written contract for services to the defendant’s property with provisions for the defendants to pay the plaintiff’s “customary labor and material charges," which constituted “an admission of a debt due and unpaid.” Dismissals for failure to timely file a petition practically ended the litigation in circuit court, even when not labeled as “with prejudice” and so were subject to appeal. The circuit court erred in applying the five-year statute of limitations, so the Missouri Court of Appeals reversed and remanded the action. 
(Overview summary) 
NW MO Tow & Recovery, INC. vs. Michael Gillis, et al. 
Missouri Court of Appeals, Western District – WD88320

Good cause and a meritorious defense shown 
Default judgment was possible on failure to file an answer. Among the ways to set aside a default judgment was a separate action. Final judgments in such actions were subject to appeal. In such an action, the elements included good cause for the default. Good cause for the default included anything short of recklessness. Recklessness did not describe the appellant’s attempts to address the petition, summons, and premature discovery in the underlying action. The elements also included a meritorious defense to the defaulted claim. The claim was wrongful death, and the appellant alleged facts showing, if found true, that appellant was not liable. The circuit court denied relief from the default judgment so the Missouri Court of Appeals reversed that judgment and remanded the action. 
(Overview summary) 
Brian Dorrell vs. Corbin Langner 
Missouri Court of Appeals, Western District – WD88155

Sheriff’s return uncontradicted 
Grounds to set aside a default judgment included the circuit court’s lack of personal jurisdiction. The circuit court’s determination of personal jurisdiction was subject to review with deference to the findings of fact but de novo as to application of the law. Personal jurisdiction required service of process, which could happen by delivery to a person in charge of the defendant’s office at the time. That the person who received service claimed to be in charge of the office at the time of service was undisputed. The sheriff’s return presumptively demonstrated service by that method subject to clear and convincing evidence contradicting the return, which did not include a mere denial. Whether that person was in charge of the office at any other time was irrelevant. Nevertheless, the circuit court set aside the default judgment, so the Missouri Court of Appeals reversed that judgment and remanded the action for reinstatement of the judgment. 
(Overview summary) 
Lorrie McNowelly, Individually and as a Representative of the Estate of Lee McNowelly vs. Sodecia Automotive Kansas City, LLC 
Missouri Court of Appeals, Western District – WD88000

Constitutional

Governor could call an extraordinary session 
Constitutional provisions describing communications between the governor and the General Assembly gave the governor authority to proclaim an extraordinary session on “extraordinary occasions[.]” Those provisions granted “a great deal of discretion” to the governor. An extraordinary session was any session that was not a regular session. Extraordinary occasions were not limited to unusual events or events arising between sessions. In an action for declaratory and injunctive relief, the plaintiffs sought to prevent any legislation pursuant to the governor’s proclamation from taking effect. The circuit court denied relief, and the Supreme Court of Missouri affirmed that judgment. 
(Overview summary) 
National Association for the Advancement of Colored People Missouri State Conference, et al., Appellants, vs. Governor Mike Kehoe, et al., Respondents 
Supreme Court of Missouri – SC101541

Criminal

Predatory sexual offender status found without jury 
To preserve an allegation of error for appellate review, "an objection stating the grounds must be made at trial, [and] that same objection must be included in the motion for new trial[.]” The appellant did not meet those requirements, leaving review in the Missouri Court of Appeals’ discretion for plain error. No plain error occurred when the circuit court determined that the appellant was a predatory sexual offender because that determination only required the circuit court to find what the appellant’s previous conviction was. That determination did not require a jury. The circuit court did not err in finding grounds to enhance the sentence, so the Missouri Court of Appeals affirmed the conviction. 
(Overview summary) 
State of Missouri vs. Timothy Patrick O'Brien 
Missouri Court of Appeals, Western District - WD87865

Competence to stand trial affirmed
The defendants were presumptively competent to participate in the defense when the trial started and had the burden to show otherwise. Circuit courts had to address competency whenever it arose and could order the appointment of a mental health professional for a mental examination. Two mental health reports and the circuit court’s observations supported the circuit court’s finding that the appellant was competent. The Missouri Court of Appeals affirmed the conviction.
STATE OF MISSOURI, Plaintiff-Respondent v. SHANNON ROANNE WARD, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD39056

Fraud convictions affirmed
Judges had to preside over their cases unless recusal was necessary. Recusal was not necessary because no partiality appeared in a charge of tampering with the judge was pending in another action, nor in the denial of extraordinary privileges in jail. “Defendant’s petulance and belligerence toward the trial judge and others in the courtroom did not need to be rewarded.” Prior inconsistent statements did not, alone, show perjury. The circuit court did not abuse its discretion in excluding an unauthenticated document. “Intent to defraud is rarely capable of proof by direct evidence and may be – and usually is – proven entirely by circumstantial evidence.” Circumstantial evidence showing the defendant’s intent to defraud included preparing and filing forged and altered documents. The Missouri Court of Appeals declined plain error review of (1) whether double jeopardy occurred because, in charges of forgery, each separate writing forged or altered constituted a separate unit of prosecution; (2) whether the circuit court should have allowed self-representation after a signed waiver of counsel and multiple Faretta hearings; (3) whether the circuit court erred in refusing to appoint the defendant’s choice of private counsel because the circuit court had authority to appoint the public defender’s office only; (4) the exclusion of a video for irrelevance, lack of foundation, and discovery violation when the defendant challenged only relevance on appeal; (5) the circuit court’s response to a jury question to which defendant agreed; (6) a sentence that was in the range of the offense as charged and found guilty, though the circuit court thought a higher range applied; and (7) jail time credit because that was a Missouri Department of Corrections decision. The Court of Appeals remanded the action to correct the sentence nunc pro tunc and otherwise affirmed the convictions.
STATE OF MISSOURI, Plaintiff-Respondent v. ADEN XAVIER WARR HARPER, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD38807

Family

Custody modified permanently for military parent 
To raise an issue for the first time in a post-trial motion did not preserve error so appellate courts could review such matters only for plain error. Plain error meant an obvious error resulting in manifest injustice. No manifest injustice occurred when the circuit court failed to describe its order as temporary, even though the Deployed Serviceperson’s Protection Laws allowed only a temporary modification of child custody for the actively deployed appellant. That was because further modification was possible so the modification was not permanent. And the appellant did not allege that the appellant was deployed, so no obvious error occurred. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary) 
Michelle Yetter (F/K/A Speed) vs. Jason Napier 
Missouri Court of Appeals, Western District - WD88093

Personal injury

Recreational Use Act immunity discussed 
In any claim, a defending party could prevail on summary judgment by establishing, beyond genuine dispute, facts that negated an element of the claim. A claim for negligence included a duty of care from the defendant to the plaintiff. The Recreational Use Act negated that duty for “landowners who open their land to the public free of charge for recreational use.” That described the defendant Missouri Department of Conservation, according to facts that the defendant established without genuine dispute. The act provided an exception to immunity for gross negligence, which the plaintiff appellant argued, but supported only with conclusory opinions, which did not raise a genuine dispute. The circuit court dismissed the action. That judgment was subject to certification because the defense was unavailable to the other defendant. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary) 
Fred Cay and Tina Cay, Appellants, v. Mark Polson and Missouri Department of Conservation, Respondents 
Missouri Court of Appeals, Eastern District – ED113814

No waiver of sovereign immunity shown 
A default judgment for failure to timely file an answer was discretionary and not mandatory. The circuit court did not err in setting aside an interlocutory default judgment when the defendant had otherwise defended the action by pursuing discovery and negotiations. In any claim, a defending party could prevail on summary judgment by establishing, beyond genuine dispute, facts that negated an element of the claim. The common law doctrine of sovereign immunity barred suit against the state and its entities with limited exceptions for insured risks. An exception for proprietary functions applied to municipalities, not state entities. Facts and disputes of fact came into the record only in the numbered paragraph procedure with supporting evidence, but that procedure allowed corrections, and the circuit court did not err in allowing the defendant movant to replace an obsolete exhibit with a current version. The current version’s supporting affidavit authenticated that exhibit. The exhibit was an insurance policy. The defendant established that the defendant was a state entity with insurance that did not waive sovereign immunity. The plaintiff appellant alleged lack of consideration for that policy, but offered no evidence, and so raised no genuine dispute. The circuit court granted summary judgment, which mooted a pending motion to compel discovery, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Tim Eby, Appellant, v. The Board of Curators of The University of Missouri, Respondent 
Missouri Court of Appeals, Eastern District – ED113499

Defendant’s verdict affirmed on negligent entrustment of a firearm
A defending party could prevail on summary judgment by establishing facts that negated an element of the claim unless the non-moving party raised a genuine dispute as to those facts. Establishing and disputing facts required evidence admissible at trial so hearsay did not count. Facts material to a claim for negligent entrustment included entrustment and proximately caused damage. The movant established facts that negated the movant’s entrustment of a firearm to the shooter, and the shooter’s possession of some firearm from an unknown source did not raise a genuine dispute as to those facts. The circuit court granted summary judgment for the movant, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Cindy Sehorn, as Representative of the Wrongful Death Class of Sara Beth Maloney Pursuant to SEC.537.080 R.S.MO. vs. Richard L. Mitchell 
Missouri Court of Appeals, Western District – WD88462

Post-conviction

No objection to multiple acts verdict directors was reasonable strategy 
Claims for ineffective assistance of counsel required the movants to show prejudice resulting from deficient performance. Deficient performance virtually never included reasonable strategy. Reasonable trial strategy included choosing not to call a witness whose testimony could have undermined the defense on cross-examination, especially when the movant agreed with that choice. Reasonable trial strategy also included choosing not to object to the verdict directors in a multiple acts case when the defense strategy relied on credibility rather than details distinguishing the incidents. Prejudice meant a reasonable probability that the outcome would have been different absent the alleged deficiency. No prejudice resulted from the appellate counsel’s choice not to brief a discovery violation where none occurred. The State was not required to characterize a witness as an expert, to disclose statements that did not exist, or to disclose generalized testimony. The circuit court denied relief, and the Missouri Court of Appeals affirmed the judgment. 
ALAN HANELINE, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District – SD38945

Probate

Earlier discovery of assets did not preclude later discovery of assets 
Rulings disposing of petitions for discovery of assets were subject to appeal on final disposition of the estate or by interlocutory appeal. The appellant filed petitions, earlier and later, for discovery of assets. The circuit court dismissed the earlier petition for failure to join the estate’s personal representative. The appellant elected against such an appeal, but that fact was irrelevant to the Missouri Court of Appeals’ authority in an appeal from the estate’s final disposition challenging the dismissal of the second petition. The second petition was dismissed for collateral estoppel. Collateral estoppel barred re-litigation of claims already made and decided against the same parties. Judicial estoppel barred the personal representative from arguing that parties were the same in both petitions and the petitions addressed different claims. The circuit court erred in dismissing the second petition under collateral estoppel, so the Court of Appeals reversed that order and remanded the action. 
(Overview summary) 
In the Estate of: Darrell L. Hardin; Dawn Hardin vs. Troy L. Dietrich, Personal Representative of the Estate of Darrell Lynn Hardin 
Missouri Court of Appeals, Western District - WD88262

Real estate

Lis pendens constituted slander of title 
The parties entered into a contract for the sale and lease-back of real property. The lease-back, as the defendant buyer knew, was to give the plaintiff seller time to replace the subject property with a larger property for an expanding business. In any claim for breach of contract, the claimant had to show a material breach of the contract’s provisions. The contract provided that the defendant buyer had a duty to draft and present to the plaintiff seller a lease with provisions described in the contract. The defendant buyer drafted and presented a lease with different provisions, which supported the plaintiff’s claim for breach of contract. And the defendant buyer never complied with any of the other contract’s provisions either, which showed that the defendant buyer never intended to go through with the deal. That finding supported the plaintiff seller’s claim for fraudulent misrepresentation. Fraudulent misrepresentation negated any limitation of the plaintiff seller’s damages to the earnest money. The defendant buyer counter-claimed for specific performance and charged that the plaintiff seller had already terminated the contract, citing the plaintiff seller’s duty to deliver statements on the status of leases on the property. But the contract did not provide termination on those facts and the defendant buyer did not follow the contract’s termination procedure. Also, such statements were not material because the plaintiff seller and the sole tenant shared the same individual owner. Further, the buyer asked for any such statement. Pursuant to the counter-claim, the defendant buyer filed a notice of lis pendens on the property, clouding the title. Such notices were absolutely privileged when filed to adjudicate valid claims, but not when filed in relation to a bad faith claim. Bad faith claims included defendant buyer’s counterclaim for specific performance of a contract that defendant buyer asserted to have already lawfully terminated. That conclusion supported plaintiff seller’s claim for slander of title. Equity required awards on all theories — breach of contract, fraudulent misrepresentation, and slander of title — and did not require apportionment among those theories. Damages included direct damages, consequential damages, and attorney fees. The record supported the circuit court’s measures of damages, including the earnest money and increased expenses from delays in procuring the replacement property. Whether the defendant buyer knew the replacement property’s identity was irrelevant. The circuit court entered judgment for the plaintiff seller and awarded attorney fees to the plaintiff buyer for the appeal. 
(Overview summary) 
CBAM, LLC, Respondent/Plaintiff, v. Alps Acquisitions, LLC, Appellant/Defendant. 
Missouri Court of Appeals, Eastern District – ED113496

Workers compensation

Line of duty and workers' compensation claims were separate actions 
In any action, the law of the case doctrine provided finality to rulings unchallenged or affirmed on appeal. But that doctrine applied only to that action and did not bar re-litigation in a separate action. A claim on the Line of Duty Compensation Fund and a claim for workers’ compensation were both within the authority of the Labor and Industrial Relations Commission. But those claims had separate statutes of limitations and separate elements, so each was a separate action. The appellant claimant did not show that earlier decisions of the commission to the contrary changed that result. Therefore, the doctrine did not require the commission to find the same facts on the workers compensation claim as it found on the Fund claim. Nor did the appellant argue any error in the commission’s application of the statute of limitations to the claim on the fund. The commission denied the claim, and the Missouri Court of Appeals affirmed that decision. 
(Overview summary) 
Patrick Brian Williams, Deceased, Jennifer Williams vs. City of Kansas City, Missouri Fire Department, Employer, and Missouri Division of Workers' Compensation as Administrator of the Line of Duty Compensation Fund 
Missouri Court of Appeals, Western District – WD88291

Appellate

Attorney fees awarded for frivolous appeal 
Rules of appellate practice protected appellate court neutrality. Appellate briefs had to describe error in the tribunal below clearly enough for appellate courts and other parties to address the matters at issue. The appellant’s brief failed to comply with requirements for the statement of facts, points relied on, preservation statements, and arguments. And the appellant’s continuous litigation of matters already decided showed that the litigation was meritless and subject to sanctions. The Missouri Court of Appeals dismissed the appeal and awarded attorney fees against the appellant and appellant’s counsel. 
(Overview summary) 
Larry Rice, Appellant, v. Armstrong Teasdale, et al., Respondents.
Missouri Court of Appeals-Eastern District – ED113700

Civil

Forum non conveniens discussed
The doctrine of forum non conveniens gave circuit courts discretion to dismiss an action over which they had jurisdiction and authority. The plaintiff respondent had no burden of proof on a motion to dismiss. The movants defendants had to carry the burden of proof with “weighty considerations”. As to party nexus to Missouri, the plaintiff made no challenge, so that factor supported dismissal. As to forum selection clauses in transactions related to — but not the source of — the action, those clauses did not apply. As to public interest and the burden on the circuit court, the movants offered no evidence. As to locations of witnesses and alternative forums, potential numbers did not control, especially when discovery was incomplete, parties had not yet named any witnesses, and travel was necessary whichever forum tried the action. As to party residence to Missouri, the defendants operated and were registered in Missouri. As to where the claims accrued and their nexus to Missouri, the circuit court used variants of those standards, so it misapplied the law. On those facts, no oppression of the defendants appeared, and the circuit court abused its discretion in granting the motion to dismiss. The Missouri Court of Appeals reversed the judgment and remanded the action. 
(Overview summary)
Miramar Financial Holdings, LLC, Appellant, v. RBCD Ventures, LLC, et al., Respondents.
Missouri Court of Appeals-Eastern District – ED113698

Criminal

Batson challenge rejected
Race-neutral reasons for striking a black venire person included service on other criminal juries, even if the State was wrong about the number, which the struck juror’s white counterpart did not have. Race-neutral reasons for striking a black venire person included that person’s profession, all members of which the State struck. The appellant did not show any prejudice from brief and isolated evidence of an uncharged bad act. The defendant waived jury sentencing by failing to object to sentencing from the bench, so the Missouri Court of Appeals declined plain error review of sentencing without a jury. The Court of Appeals affirmed the convictions. 
(Overview summary)
State of Missouri, Respondent, v. Jkai S. Mabin, Appellant.
Missouri Court of Appeals-Eastern District – ED113014

Conviction vacated 
In an action by a prosecuting or circuit attorney to seek to set aside a conviction previously obtained by that office, the office had the burden to prove actual innocence or constitutional error at the original trial or plea that undermines the confidence in the judgment by clear and convincing evidence. Such evidence specifically included the record at proceedings on a writ of habeas corpus. When the State disclosed an investigator as a person having knowledge late, and refused to produce the investigator for a deposition, excluding that person’s testimony was no abuse of discretion; at least, not when the subject of the investigation was present. Substantial evidence supported the judgment and contrary evidence was irrelevant on appellate review. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
In re: Circuit Attorney, 22nd Judicial Circuit ex rel. Christopher Dunn, Respondent, v. State of Missouri, Appellant.
Missouri Court of Appeals-Eastern District – ED112933-01

Standard for appellate review of criminal convictions discussed 
Appellate review for sufficiency of the evidence to support a criminal conviction meant looking at the evidence that supported the conviction and ignoring any contrary evidence. The elements that the State had to prove included that the victim was under 14 years old when the events alleged occurred. The victim’s testimony that she was pre-teen satisfied that burden, and victim’s testimony equivocating on that matter was irrelevant on appellate review. The Supreme Court of Missouri affirmed the convictions. 
(Overview summary)
State of Missouri, Respondent, vs. James Guthrie, Appellant.
Supreme Court of Missouri – SC101373

No jail time credit was due 
When a petition failed to state a claim, there was no claim on which to reach the merits, so a dismissal for failure to state a claim never reached the merits of the petition. The circuit court purported to dismiss the appellant’s petition for failure to state a claim but really issued a judgment on the pleadings, so appellate review employed the standard for judgment on the pleadings de novo. When the sentence for an offense was confinement, credit was due only for jail time related to that offense. Therefore, no credit accrued for any time at which a separate basis for confinement existed. During the time for which the appellant sought credit, the appellant was confined while awaiting trial on more than one offense, and that fact negated the credit. Also, credit was due only for time confined within the State, or outside the State if caused solely by the State. That did not include facts used to enhance a federal sentence even if the State alleged them. In the appellant’s petition for declaratory relief, the appellant alleged facts on which the appellant was not entitled to relief. The circuit court denied relief and the Court of Appeals affirmed that judgment. 
(Overview summary)
Samuel D. Thornbury vs. Missouri Department of Corrections
Missouri Court of Appeals-Western District – WD88105

Sua sponte intervention discouraged 
Circuit court’s restraint from sua sponte intervention rarely resulted in plain error because sua sponte intervention could cause more problems that it solved. The State’s argument on the credibility of witnesses did not misstate the burden of proof. And submitting approved instruction negated any prejudice. No plain error occurred when the circuit court refrained from sua sponte intervention in the State’s argument. The Missouri Court of Appeals affirmed the convictions. 
(Overview summary)
State of Missouri vs. Tomorren D. Garrett
Missouri Court of Appeals-Western District – WD87095

DWI

Probable cause included hearsay 
When a driver refused a breath test and the Director of Revenue revoked that driver’s license on that basis, judicial review was limited. The Director had the burden to show that the circuit court should affirm the revocation. The elements of the Director’s case included the probable cause to believe that driver had been operating a motor vehicle while intoxicated. Probable cause meant “what the arresting officer had reasonable grounds for believing occurred” rather than “what actually occurred [.]” That included out-of-court statements from witnesses. Such witnesses’ credibility was not relevant. The circuit court affirmed the revocation and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Jonathan Olson vs. Director of Revenue, State of Missouri
Missouri Court of Appeals-Western District – WD88241

Family

Deemed performance negated contempt
Judgment had to be clear enough to enforce. The circuit court’s partial assignment of military benefits to the appellant was clear enough to enforce, despite ordering neither party to apply for that change, because federal law provided that either party could apply. Orders to pay child support pendente lite constituted judgments that, when not appealed, were subject to enforcement by execution or contempt. The circuit court denied the appellant’s motion for contempt, and that ruling had support in evidence of the amounts that the appellant received, using equitable authority to disregard the characterization assigned such amounts. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
In Re the Marriage of: John B. Cadwalader vs. Melissa L. Cadwalader
Missouri Court of Appeals-Western District – WD87695

Post-conviction

Speedy trial relief was not likely 
To state a claim for ineffective assistance of counsel, the movant had to allege deficient performance and resulting prejudice. The movant cited the trial counsel’s failure to file a motion to dismiss for lack of a speedy trial. The movant never asked counsel to file such a motion, participated in much of the delay, did not allege any date when trial ceased to be speedy, and did not allege any facts constituting prejudice from the failure to file. Specifically, the movant could not show that such a motion was likely to find a favorable ruling. The movant also cited trial counsel’s failure to seek a mistrial when the movant appeared in court wearing shackles. But the movant did not allege any facts that described any resulting prejudice. And the charges were bench-tried. The same judge presided at the criminal trial and on the motion. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Christopher L. Gates, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District – ED113683

Overwhelming evidence of guilt negated relief 
When charging ineffective assistance of counsel, the movants had to show a reasonable probability that, but for counsel’s deficient performance, the movant would have been acquitted. The movant charged trial counsel with failing to make a motion to strike a witness’s statement. But the Missouri Court of Appeals already ruled on direct appeal that, even without the statement, the evidence overwhelmingly showed the movant’s guilt. The movant could not argue theory again in a motion for post-conviction relief. And trial counsel’s failure to preserve error in the admission of evidence was never grounds for relief. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Travis Groce vs. State of Missouri
Missouri Court of Appeals-Western District - WD87994

Appellate

Appellant’s deficient brief required dismissal
Missouri appellate courts must hold pro se appellants to the rules of appellate procedure to preserve judicial neutrality. The appellants’ brief failed to comply with the rules governing the jurisdictional statement, statement of facts, points relied on, arguments, appendix and certification of compliance. After notice and opportunity to correct, the Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
Lakeview Loan Servicing, LLC, Respondent, v. Bobbie S. Jones and Ronice Porter, Appellants.
Missouri Court of Appeals-Eastern District - ED113556

Criminal

Refraining from a sua sponte objection endorsed 
Whether to review the events in circuit court for plain error was committed to the appellate courts’ discretion, and appellate courts expected circuit courts to refrain from participating in the defense. That included refraining from sua sponte objections, especially since the absence of an objection from the defendant might have been strategic. Such was the case with a State witness’s testimony: the defense counsel did not object so that the defense counsel could use that testimony against the witness on cross-examination. On those facts, the Missouri Court of Appeals declined plain error review. “Sentences of life and 999 years 'are materially different because, among other reasons, they have a different effect in determining parole eligibility dates.’” The Court of Appeals remanded the action for an order nunc pro tunc conforming the written sentence to the spoken sentence. 
(Overview summary)
State of Missouri vs. Tracy L. Homer
Missouri Court of Appeals-Western District – WD87970

Manslaughter conviction affirmed 
Challenges to the sufficiency of the evidence failed whenever a case was submissible. A submissible case of manslaughter in the second degree included criminal negligence. Criminal negligence included being unaware of a substantial and unjustifiable risk that circumstances exist, or a result will follow, when such failure constituted a gross deviation from the standard of that which a reasonable person would exercise in the situation. That described stealing a firearm from its owner and the ensuing struggle with the owner. The owner’s death when shot by the defendant’s confederate did not constitute an intervening cause that negated causation. The Missouri Court of Appeals affirmed the conviction. 
(Overview summary)
State of Missouri vs. Mekhi Donnell Curry
Missouri Court of Appeals-Western District – WD87621

Impeachment with post-arrest silence was okay 
“Uninvited interference by the trial judge in trial proceedings . . . invites trial error.” For that reason, refraining from sua sponte objection seldom resulted in plain error. The reading of Miranda rights assured the defendants that the State would not use post-arrest silence against them, even as impeachment; but without a reading of Miranda rights, there was no such assurance, so impeachment with post-arrest silence was possible. During such brief isolated instances of such impeachment, the circuit court did not intervene sua sponte, which did not constitute plain error. Jailhouse telephone records, authenticated by affidavit, were admissible, especially after extensive testimony by the affiant. The Missouri Court of Appeals affirmed the convictions. 
(Overview summary)
State of Missouri vs. Ivan D. Mock
Missouri Court of Appeals-Western District – WD87365

Instruction negated prejudice
In closing argument, the State attempted to describe reasonable doubt. The remark was brief and isolated, so no mistrial was necessary. And the circuit court gave the jury the approved instruction on reasonable doubt, which raised a presumption that the jury followed it, and “cures any harm from an erroneous statement of reasonable doubt by the prosecutor.” Also, the jurors acquitted on one charge, showing that the State’s argument did not mislead them and that they carefully considered the evidence. The Court of Appeals affirmed the judgment but remanded the action to conform the judgment as written to the judgment as spoken.
STATE OF MISSOURI, Respondent v. ALDO JAVIER MUNGUIA-HERNANDEZ, Appellant
Missouri Court of Appeals, Southern District - SD38679

Elections

Referendum petition did not suspend congressional re-districting legislation 
The procedures for a referendum petition included the number of signatures necessary, methods for verifying signatures, certification as to sufficiency of the petition, and judicial review of the certification. Nothing in those provisions suspended legislation on the filing of the petition alone. Legislation altering congressional districts had an effective date, but a timely filed petition for a referendum on that bill rendered the effective date indeterminate. If the petition was not sufficient, the legislation became effective as usual. If the petition was sufficient, the legislation became effective only on approval by vote of the electorate and without the governor’s signature. Insofar as the certification process was still pending, no further conclusion was possible. The circuit court ordered that the filing of the petition alone did not suspend the legislation, and the Supreme Court of Missouri affirmed that judgment. 
(Overview summary)
Jake Maggard, et al., Appellants, vs. State of Missouri, et al., Respondents.
Supreme Court of Missouri - SC101581

Congressional re-districting was okay 
The Missouri General Assembly had to legislate the State into congressional districts that were contiguous, compact, and equal in population; each as much “as may be.” In actions for injunctive and declaratory relief, the plaintiffs had the burden to show that the General Assembly “plainly and palpably [,]” “clearly and undoubtedly [,]” failed to meet that standard. To be compact was to present a “closely united territory [,]” which statistics, geographic boundaries, political subdivision boundaries, and other measures helped the circuit court to determine. Appellate courts did not re-weigh the evidence. The legislation improved on earlier legislation in significant matters like splitting municipalities. Communities of interest were not determinative. “[T]he existence of good faith in the legislature or lack thereof” and “the subjective policy preferences of the legislature and Appellants related to population density” were not relevant. Alternatives that improved compactness did not show lack of compactness. The plaintiffs presented no evidence on contiguity and population of a voting tabulation district. The circuit court held that the plaintiffs did not carry their burden of proof and the Supreme Court of Missouri affirmed that judgment. 
(Overview summary)
Elizabeth Healey, et al., Appellants, vs. State of Missouri, et al., Respondents. and Terrence Wise, et al., Appellants, vs. State of Missouri, et al., Respondents.
Supreme Court of Missouri – SC101570

Orders of protection

No alarm, no stalking 
“There are two bases for an order of protection in Missouri’s Adult Abuse Act: (1) domestic violence [,] and (2) stalking.” The former required evidence of specified familial relationships. The latter required evidence of alarm, meaning an objective and subjective fear of physical harm. No such evidence appeared in the record. Evidence that the appellant was the respondent’s future mother-in-law, and entered the residence of respondent and appellant’s son while they were absent, was no substitute. The circuit court abused its discretion in entering a full order of protection. The Missouri Court of Appeals reversed the judgment and vacated the full order of protection. 
(Overview summary)
A.D.S., Respondent, v. T.L.M., Appellant.
Missouri Court of Appeals-Eastern District – ED113953

Violation of order constituted burglary 
The elements of burglary in the first degree as charged included unlawfully entering a building with the intent of committing an offense in that building. The offense alleged was violation of an ex parte protective order. Insofar as the defendant knew that the order barred him from the building, the defendant knew he had to violate the order to enter the building. The Missouri Court of Appeals affirmed the convictions. 
(Overview summary)
State of Missouri, Respondent, v. John S. Kelly, Jr., Appellant.
Missouri Court of Appeals-Eastern District – ED113267

Personal injury

No official immunity for police non-emergency operation of patrol car 
Parties were entitled to a summary judgment when they established, beyond genuine dispute, facts in the summary judgment record entitling them to a favorable ruling. The summary judgment record consisted of allegations of material fact in numbered paragraphs, the responses to those numbered paragraphs, and respective citations to admissible evidence. Official immunity protected government employees from any suit when exercising discretion in the performance of official duties without malice. The summary judgment record showed that, when it struck the plaintiff’s decedent, the defendant police officer was operating a patrol car in a non-emergency situation. Non-emergency operation of a patrol car “does not involve policymaking or the exercise of professional expertise and judgment” so it was not within official immunity. Allegations that the defendant was acting in an emergency pursuit appeared only in the motion and a memorandum, which was not part of the summary judgment record. The circuit court erred in granting summary judgment for the defendant so the Missouri Court of Appeals reversed that judgment and remanded the action for further proceedings. 
(Overview summary)
Willie Jackson, Appellant, v. Preston Marquart, Respondent.
Missouri Court of Appeals-Eastern District – ED113388

Post-conviction

No duty to seek ruling in limine 
The circuit courts had to appoint post-conviction counsel and to notify post-conviction counsel of that appointment; the appointment was ineffective until such notice, and only then did the time for filing an amended motion or statement in lieu begin to run. The elements of a claim for ineffective assistance of counsel included prejudice from deficient performance. In strategic matters, courts did not second-guess counsel. The trial counsel’s duty to investigate did not require the trial counsel to file a motion in limine testing a defense. The trial counsel employed a battered spouse defense to offer evidence otherwise inadmissible on other defenses. To seek a ruling in limine on the defense’s applicability would not have furthered that strategy, so the trial counsel’s performance was not deficient for seeking such a ruling in limine. The circuit court denied relief on that theory, and the Missouri Court of Appeals affirmed the judgment as to that ruling. The counsel never had to advance meritless claims, like insufficient evidence, when evidence supported each element of an offense as charged. The evidence was sufficient to sustain a conviction for kidnapping, so the appellate counsel was not ineffective when choosing not to argue otherwise. Whether that evidence varied from the charging instrument did not alter that result. "Missouri courts have repeatedly rejected sufficiency-of-the-evidence claims that are disguised variance claims.” The circuit court granted relief on that theory and the Court of Appeals reversed the judgment as to that ruling and reinstated the movant’s sentence. 
(Overview summary)
Teresa Colby a/k/a Teresa Dawn Colby Weter vs. State of Missouri
Missouri Court of Appeals-Western District – WD87781 consolidated with WD87828

Date of sentencing determined filing of motions 
The date on which the circuit court sentenced the movant determined the time to file for the initial motion and the amended motion “, regardless of any later amendments.” The initial motion was timely but the appointed counsel filed the amended motion late. On those facts, the circuit court had to conduct an inquiry into whether the appointed counsel abandoned the movant, the result of which determined whether the circuit court had authority to rule on the amended motion or the initial motion. But the circuit court did not conduct such an inquiry and ruled on the amended motion. The Missouri Court of Appeals vacated the judgment and remanded the action for the circuit court to conduct its inquiry into abandonment. 
JACKIE LEON LIGHT, JR., Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals-Southern District – SD39030

Real estate

Award of costs affirmed in inverse condemnation 
Constitutional provisions required just compensation when the State took private property, including when a political subdivision unintentionally damaged such property, which constituted an inverse condemnation. Condemnation actions could include an award of costs, and the statute authorizing such an award showed an intention to link the award to the constitutional requirement. The plaintiff property owners showed that the defendant sewer district had notice of multiple backups and failed to take corrective action. Sovereign immunity protected the district from liability in tort actions, not constitutional condemnation actions. The circuit court awarded costs and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Driven Development, LLC, Respondent, v. Metropolitan Saint Louis Sewer District, Appellant.
Missouri Court of Appeals-Eastern District - ED113300

Appellate

No final judgment, no appeal 
“With exceptions not applicable here, ‘[a] final judgment is a prerequisite to appellate review.’” A final judgment was one denominated as a judgment and disposing of all issues as to all parties. In an action against two defendants, the circuit court dismissed a claim against one defendant but did not dispose of any claim against the other, and the circuit court did not denominate the dismissal as a judgment. A later ruling, denominated as a judgment, denied a motion to re-open but did not change that result. The Missouri Court of Appeals dismissed the appeal. 
GWEN WOOD, AN INDIVIDUAL, and G.L. MOORE PKG., INC., A MISSOURI CORPORATION, Plaintiffs-Appellants v. FEDEX GROUND PACKAGE SYSTEM, INC., and TIM ADKISSON, Defendants-Respondents
Missouri Court of Appeals-Southern District – SD39135

Appeal from summary judgment explained 
On summary judgment, once the movant established the facts material to its theory, the respondent could avoid summary judgment only by raising a genuine dispute as to at least one such fact. In circuit court, disputes of fact came into the record only as prescribed by the governing rule. The governing rule barred reliance on a party’s own pleadings. That rule further required any response to a motion for summary judgment to either follow a prescribed format — by numbered paragraph with support in admissible evidence — or be deemed to have admitted the numbered paragraph’s allegations. Appellate review of summary judgment was de novo so, on appeal, the same facts had to appear in the statement of facts in appellants’ brief. The appellant’s brief also had to set forth a preservation statement and points relied on that included a legal ground for reversal. The appellant failed to comply with those requirements, admitted material facts, and put no material fact in genuine dispute. The Missouri Court of Appeals could not conduct appellate review and, if it did, appellant could not prevail. The Court of Appeals dismissed a non-conforming point and the appeal. 
(Overview summary)
Jill Van Deel, Appellant, v. A-Plus Contracting, LLC, and Byron Cornell Jeffries, Respondents
Missouri Court of Appeals-Eastern District – ED114002

DWI

Administrative DWI records were subject to expungement 
Circuit courts had to order the expungement of any criminal record on the filing of a petition. And any State entity receiving such an order had to close any criminal or administrative record related to any offense listed in the petition. The petitioner driver pleaded guilty to careless and imprudent driving, but the State initially charged the driver with driving while intoxicated, which was also the subject of administrative proceedings before the Missouri Director of Revenue. Because those proceedings were related to the criminal action, the director of revenue had to close administrative records of driving while intoxicated. The circuit court erred in ruling otherwise, so the Missouri Court of Appeals reversed the judgment and remanded the action, instructing the circuit court to order the closure of the administrative records. 
(Overview summary)
S.E., Appellant, v. Director of Revenue, et al., Respondents
Missouri Court of Appeals-Eastern District – ED113932

Family

Attorney fees award affirmed 
Challenges to a judgment as unsupported by substantial evidence, or against the weight of the evidence, required the appellants to include a discussion of evidences and inferences favoring the judgment. The appellant failed to do, rendering the appellant’s analysis useless. Service on “John Doe” by publication was adequate for personal jurisdiction when the appellant refused to identify John Doe and waived any defense by failing to timely raise it. The circuit court’s 10-page detailed findings of fact, and earlier orders, showed careful consideration of the statutory factors applicable to custody determinations with supporting evidence. The circuit court could deny access to the children’s medical and educational records when it denied custody and an award of visitation did not change that result. The appellant’s repetitive motions, some almost identical to motions already denied, supported an award of attorney fees to respondent. The presumed child support amount covered children’s educational expenses so a separate amount attributed to educational expenses, but not characterized as extraordinary, was duplicative. The Missouri Court of Appeals affirmed the judgment, except as to the duplicative expenses. 
(Overview summary)
In Re the Matter of: David Eade vs. Jennifer Kennedy
Missouri Court of Appeals, Western District – WD88017 Respondent Consolidated with WD88018

Probate

Start challenges with the latest trust instrument 
Statutes provided a safe harbor under which a trust instrument’s no-contest clause was subject to challenge without enforcement of the clause. The grantor enacted an initial trust and two amendments, and all three instruments had no-contest provisions. The initial trust and each amendment created a new trust instrument. “[A] validity challenge must start with the current operative trust instrument and work backwards.” Nevertheless, in an action for declaratory judgment contesting the amendments, the circuit court entered judgment against the plaintiffs for failure to challenge the initial instrument and its no-contest provision. The Missouri Court of Appeals vacated that judgment and remanded the action. 
(Overview summary)
Rebecca Chipman, et al. vs. Jack Dougherty, et al.
Missouri Court of Appeals-Western District – WD88246

Local government

State pre-empted firearm storage provision in unattended vehicle ordinance 
Controversies over legislative provisions could be ripe for determination without prosecution pending. “Cases presenting predominantly legal questions are particularly amenable to a conclusive determination in a pre-enforcement context, and generally require less factual development.” That described the validity of a city ordinance under which the city prosecuted plaintiff but dismissed the action without prejudice. The General Assembly expressly pre-empted “the entire field of legislation touching in any way firearms” and barred any ordinance that addressed “‘keeping,’ ‘possession,’ or ‘transportation’ of firearms[.]” Those terms included storage, so a city ordinance purported to govern the storage of firearms in unattended vehicles. The circuit court held the ordinance invalid and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Michael Roth, Respondent, v. City of Saint Louis, Appellant
Missouri Court of Appeals-Eastern District – ED113811

Appellate

No standing to appeal
Standing to appeal a judgment required the appellant to have been a party to the action. The appellant filed the action in the capacity of trustee of a trust on behalf of the trust. The appellant appealed in the capacity of an individual beneficiary on her own behalf. Because the appellant as an individual was not a party to the action, she lacked standing to appeal. 
(Overview summary)
Alice Marie Riding as Trustee of Nation RAR Trust, et al. vs. United Consumer Credit Union, Defendant, Jason Neathery
Missouri Court of Appeals-Western District – WD88396

Evidence was sufficient when no objection made
In an action for dissolution of marriage, property valuations and equalization payments were subject to review for abuse of discretion. No abuse of discretion occurred when the circuit court valued the parties’ marital residence on evidence of assessed value for property tax because the appellant did not object to that evidence. “[A] party cannot resurrect an admissibility objection it failed to make, by arguing that the evidence was insufficient to support a decision because the unchallenged evidence should be disregarded.” The circuit court divided the property unequally as it announced, consistently with applicable statutory factors, the circuit court’s findings of fact, and the record. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
In Re: The Marriage of Kristin N. DeGrace vs. Philip A. DeGrace, III
Missouri Court of Appeals-Western District – WD87899

Civil

Motion to set aside default did not show timely filing 
The law also defended “the integrity of the legal process and procedural rules” even though it favored rulings on the merits over default judgments. A motion to set aside a default judgment for good cause and a meritorious defense was a separate action from the underlying action. The elements included filing the motion “within a reasonable time not to exceed one year after the entry of the default judgment.” One year was the latest possible for any motion, and the defendant respondent made that deadline on the last day. But that did not make the filing time reasonable. Reasonableness was a matter of fact requiring pleading and proof. The defendant respondent’s motion was unverified and did not allege any facts showing that 365 days was a reasonable time for filing. “[T]he record is thus devoid of evidence on which we can rely to affirm the judgment.” The circuit court abused its discretion when it granted the motion so the Missouri Court of Appeals reversed the judgment and remanded the action with instructions to reinstate the default judgment. 
MAD TAX LLC, Appellant v. JAMES WINFRED ROBINSON, Trustee, and Trustees and Beneficiaries of the J. Winfred Robinson and Barbara A. Robinson Revocable Trust Dated 9/5/2013, Respondents
Missouri Court of Appeals-Southern District – SD39093 and SD39275 Consolidated

Judgment on the pleadings reversed 
Judgment on the pleadings was due the party with the burden of proof when the face of the pleadings established the material facts beyond genuine dispute. The movant plaintiff’s claim was for enforcement of a settlement, which constituted an action for enforcement of a contract. A contract’s elements included acceptance of an offer, meaning a proposal of essential provisions and agreement without variance from those essential provisions. The provisions as alleged in the petition and the answer differed as to the release of claims, confidentiality, and non-disparagement. The differences alleged on the face of the pleadings showed that essential provisions were genuinely in dispute. On those pleadings, the circuit court erred in granting judgment for the plaintiff. The Missouri Court of Appeals reversed the judgment and remanded the action for an evidentiary hearing. 
(Overview summary)
Mouna Apperson, f/k/a Nicholas Apperson, Appellant, v. Stephen G. Davis, et al., Respondents.
Missouri Court of Appeals-Eastern District – ED113643

Constitutional

Motion to retax was the exclusive remedy 
Circuit clerks had a ministerial duty to tax statutorily determined court costs by bill of costs, and any unlawfully taxed cost was subject to correction on a motion to retax, which was the exclusive remedy. That applied to the appellant’s constitutional arguments: the appellant had to raise them in a motion to retax. The appellant raised a constitutional challenge to statutorily determined court costs in an action for unjust enrichment. The circuit court granted partial summary judgment in favor of that claim. The Missouri Court of Appeals vacated the judgment as to that ruling because the circuit court erred in reaching the merits outside of the exclusive remedy. Later recognizing the exclusive remedy, the circuit court entered judgment on the pleadings dismissing the action and the Court of Appeals affirmed that judgment. 
(Overview summary)
Benjamin Curtis Ramirez, Individually and on Behalf of All Others Similarly Situated, et al. vs. Missouri Prosecuting Attorneys and Circuit Attorneys' Retirement System, et al.
Missouri Court of Appeals-Western District – WD88010 Consolidated with WD88014

Criminal

Omission from police report did not require exclusion
Pre-trial discovery required the State to disclose police reports. The State’s opening statement’s purpose was to inform the jury of the evidence that the State anticipated presenting at trial, not evidence it disclosed in pre-trial discovery. Therefore, the absence of an identification from disclosure did not bar its mention in the State’s opening statement. Out-of-court declarations admitted as and limited to context explaining subsequent police conduct, not for the truth of the matter declared, were not hearsay and were not subject to exclusion. A statement given before the reading of Miranda rights was not subject to exclusion when first muttered inaudibly, or repeated at a law enforcement officer’s request, voluntarily outside of a custodial interrogation. Inconsistencies in identifying the defendants as perpetrators were for finders of fact to weigh, and appellate courts deferred to such credibility determinations. On a charge of resisting a lawful stop, the instructions had to include the reason for the stop, and doing so did not make the reason for the stop into an element of the offense. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
State of Missouri vs. Lawrence Allen Cole II 
Missouri Court of Appeals-Western District – WD87518

Nolle prosequi ended circuit court authority 
Nolle prosequi constituted a voluntary dismissal that instantly ended the circuit court’s authority over a criminal action without regard to any pending motion. And if a nolle prosequi occurred before jeopardy attached, the dismissal was without prejudice. Pending a motion to dismiss for lack of a speedy trial, the State filed a memorandum of nolle prosequi, after which the circuit court found a speedy trial violation and entered judgment dismissing the action with prejudice. That judgment was null so the Missouri Court of Appeals reversed and remanded the judgment with instructions to vacate the judgment. 
STATE OF MISSOURI, Appellant v. JACOB COLE BYLER, Respondent
Missouri Court of Appeals-Southern District – SD38929

For marijuana expungement, wrong procedure, right result
Appellate courts reviewed judgment for error but reversed only on prejudicial error, meaning error that “materially affect[ed] the merits of the action.” Constitutional provisions required circuit courts to expunge marijuana-related criminal records. The procedure depended on whether the records related to a “person currently incarcerated in a prison, jail or halfway house [.]” If so, the circuit court acted on a petition. If not, circuit courts acted sua sponte. The petitioner was not incarcerated in a prison, jail, or halfway house; the circuit court nevertheless failed to expunge the petitioner’s record; the petitioner filed a petition for expungement; and the circuit court granted that petition and expunged the record. That procedure was erroneous but also harmless. The circuit court granted the petition for expungement and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
D.S., Respondent, v. Missouri State Highway Patrol, Criminal Records Repository, Appellant.
Missouri Court of Appeals-Eastern District – ED113927

DWI

Refusal of field sobriety test supported probable cause 
In an action to suspend a license to drive, on appeal from the Director of Revenue’s decision to circuit court, the director had the burden of proof. The driver’s belief that the driver had to demonstrate sobriety did not show that the circuit court shifted the burden of proof. Refusing a field sobriety test was not cause for suspension but supported probable cause to believe that the driver was intoxicated. Any challenge to a judgment as against the weight of the evidence required the appellant to follow a specified analysis. That analysis included identifying the evidence supporting a challenged finding of fact necessary to the judgment and showing how such evidence failed to support that finding. The appellant driver’s failure to follow that analysis rendered the driver’s brief useless. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
Brandon Ward vs. Director of Revenue State of Missouri
Missouri Court of Appeals-Western District – WD87917

Elections

Congressional districting referendum ballot summary further corrected
Referendums could suspend legislation pending voter approval. For all referendums, the Secretary of State had to prepare a ballot summary that was fair and sufficient and circuit courts had no authority to remove words without a finding that the words were insufficient or unfair. No such finding appeared in the judgment as to the word “existing” in the phrase “the existing . . . congressional plan” and that word was not unfair or insufficient. The referred legislation’s language showed that it “keep[s] more . . . counties intact” so that ballot summary language was not insufficient or unfair. Other language was unfair or insufficient. Whether the referred legislation would “keep more cities . . . intact” depended on official maps. That information was not in evidence, not subject to judicial notice at trial, and not subject to any finding of fact in the judgment. Whether the new districts were “more compact” “could only be supported by extrinsic information and analysis” not in the record. The Court of Appeals reversed the judgment and entered judgment certifying ballot summary language without “keep more cities . . . intact” and without “more compact.”
(Overview Summary)
People Not Politicians and Richard Von Glahn vs. Denny Hoskins, in his Official Capacity as the Missouri Secretary of State
Missouri Court of Appeals, Western District - WD88795

Employment security

Wrong ruling appealed 
A deputy denied the claimant’s application for benefits. The deputy’s decision was subject to review before an appeals tribunal. The appeals tribunal also denied the claim. The appeals tribunal’s decision was subject to review by application timely filed with the Labor and Industrial Relations Commission. The commission determined that the claimant’s application was not timely filed and dismissed it. The commission’s decision was subject to review in the Missouri Court of Appeals by notice of appeal. The claimant filed a notice of appeal to the Court of Appeals but sought challenged only of the appeals tribunal decision, not the commission’s, and the appeals tribunal’s decision was not within the scope of the Court of Appeals’ review. The Court of Appeals dismissed the appeal. 
Bruce A. Halstead vs. Amazon.com Services, INC., Employer, and Division of Employment Security
Missouri Court of Appeals-Western District - WD88267

Family

Overnights awarded but not exercised 
An award of child support was subject to modification if the obligor showed a substantial and continuing change in circumstances, which was presumed if the change resulted in a reduction of 20% or more from the presumed amount as correctly calculated. The correctly calculated presumed amount accounted for overnight visits awarded and exercised. The movant for modification did not show that the movant exercised the visits awarded, and so did not correctly calculate the presumed amount, and was not entitled to the favorable presumption. The circuit court denied the modification and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Preston Scott Buckallew, Individually and as Next Friend of B.N.B. and K.L.B., Minors vs. Shelby Hall
Missouri Court of Appeals-Western District – WD88374

Future harm analysis “precisely” made 
Circuit courts could terminate parental rights on a two-step analysis. The first step was that clear, cogent, and convincing evidence showed a statutory basis for termination existed. The circuit court concluded that more than one ground existed, and the appellant challenged less than all grounds, leaving abuse and neglect as an unchallenged ground for termination. The second step was that a preponderance of the evidence showed that termination was in the child’s best interest. In both steps, the likelihood of future harm was a factor. The circuit court found that the parent had abused and neglected the children, denied that any abuse ever occurred, and refused to change. “This analysis, which specifically links the statutory grounds establishing Father’s past abuse and neglect with the likelihood of future harm to the Children, is precisely what is required [.]” The circuit court terminated parental rights and the Missouri Court of Appeals affirmed that judgment. 
IN THE INTEREST OF H.P. AND A.E.P. GREENE COUNTY JUVENILE OFFICE, Respondent v. B.A.P., Appellant
Missouri Court of Appeals-Southern District – SD39226 and SD39227 Consolidated

Health

State Legal Expense Fund was liable for providers’ defense 
The elements of a claim on the State Legal Expense Fund included having “provided services without compensation or with compensation only from a governmental agency.” Circuit courts could grant a motion for summary judgment on undisputed facts supported by the summary judgment record. The summary judgment record included “the State’s own admissions and concessions.” The claimant health care providers established the element of compensation and the State failed to raise a genuine dispute as to that fact without evidence. Limitations on coverage did not apply to health care providers. The circuit court entered summary judgment for the claimants and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Alexis Vollmar, M.D., et al. vs. Catherine L. Hanaway, et al.
Missouri Court of Appeals-Western District – WD88234

Local government

Findings of guilt affirmed without ordinances in evidence
Neighbors’ complaints and a city employee’s testimony were sufficient evidence to show a violation of the animal noise ordinance. The remedy for the city’s failure to support an element of a charge was dismissal, and the circuit court did not err in denying that remedy. The presence of a pile of wood chips in the defendant’s yard for two months supported a finding that the pile was a mosquito breeding site and not a ground cover. Testimony that the defendant called an animal back into her yard showed a violation of an animal-at-large ordinance. The defendant did not preserve any objection to the plaintiff city’s failure to disclose its certified copies before trial, and such failure was not plain error because no surprise occurred. The appellant also failed to preserve a constitutional argument by raising it at the first opportunity and including it in a point relied on, and including it in the brief’s argument section was insufficient. The provisions of an ordinance were subject to stipulation, but not judicial notice, and were admitted into the record only if on file or by certified printed copy. Without the ordinances setting the amounts of fines, the record did not support the fines that the circuit court imposed, so imposing the fines was plain error. The Missouri Court of Appeals affirmed as to all findings of guilt but reversed as to fines imposed without supporting ordinances in evidence. 
(Overview summary)
City of Florissant, Respondent, v. Jubin Lee, Appellant.
Missouri Court of Appeals-Eastern District – ED113228

Orders of protection

Evidence insufficient, new trial ordered 
Circuit courts could issue full orders of protection for stalking, the elements of which included a petitioner fear of physical harm. The petitioner testified to fear of physical harm to the petitioner’s children, but not to the petitioner. That evidence was insufficient to support a full order of protection. “Where a plaintiff prevails in the trial court and an appellate court reverses because of insufficient evidence, the preference is to remand for a new trial.” The Missouri Court of Appeals reversed the judgment and remanded the action for a new trial. 
(Overview summary)
R.B., Respondent, v. J.B., Appellant.
Missouri Court of Appeals-Eastern District – ED113707

Post-conviction

No investigation into facts was necessary when the defendant didn’t mention them 
“When a defendant fails to inform counsel of the facts necessary to support a defense, counsel does not render constitutionally deficient performance in failing to raise that defense [.]” The movant charged trial counsel with ineffective assistance for failing to investigate an interrogation that the movant alleged followed several sleepless nights. But the movant never told trial counsel about any sleep deprivation. And the record negated the movant’s characterizations of the interrogation as coercive and the movant’s statements as involuntary. Also, because objections to evidence of those statements would have been meritless, the movant suffered no prejudice. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Matthew Ryan Rouner vs. State of Missouri
Missouri Court of Appeals-Western District – WD87785

No transcript, no appeal 
Rules of appellate practice required the appellants to file a transcript of any evidentiary hearing, and appeals were subject to dismissal when the omission of a transcript inhibited appellate review. Such was the case when the appellant challenged a judgment for lack of substantial evidence. The circuit court denied relief after an evidentiary hearing, and the movant appealed, but the movant never filed a transcript of the evidentiary hearing despite notice and extensions of time to comply. Appellate courts could “presume that omitted portions of the record are unfavorable to the appellant and favorable to the trial court’s decision.” But the Missouri Court of Appeals could not review the judgment transcript so the Court of Appeals dismissed the appeal. 
(Overview summary)
Zachary D. Lee vs. State of Missouri
Missouri Court of Appeals-Western District – WD87324

No appointment, no abandonment
Timely filing was an element of any motion. Abandonment by post-conviction counsel was an exception to the requirement of timely filing but applied only to appointed counsel. Abandonment did not apply to counsel whom the circuit court did not appoint, even if counsel was a public defendant. Movant’s counsel entered an appearance but the record did not show an appointment. Nevertheless, the circuit court ruled on the amended motion instead of the initial motion. The initial motion had claims that were not in the amended motion so the judgment was not final. The Court of Appeals dismissed the appeal and remanded the action for the circuit court to rule on the initial motion.
CORNELIUS PERKINS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District - SD38999

Circumstances showed meth was not OTC
When abandonment was clear of the record, remand for an inquiry was unnecessary and courts reviewed motions “without further delay.” The elements of a claim for ineffective assistance of counsel included prejudice resulting from deficient performance and counsel’s performance was presumptively sufficient. Waiving a jury trial for a more dispassionate fact-finder was sound strategy. Evidence showing that movant possessed contraband, not over-the-counter, methamphetamine included chemical analysis, concealment, and intoxication. The elements of tampering with physical evidence as charged included the purpose to impair a felony prosecution, and that purpose need not come to fruition for a conviction. Trial counsel and appellate counsel were not ineffective for choosing against challenging those findings. Impeachment evidence supported movant’s claim only if it raised a reasonable doubt as to guilt and text messages from victim’s phone supported no defense. Appellate counsel’s choice of rulings to challenge was “virtually unchallengeable [.]” The Court of Appeals affirmed the convictions.
JONATHAN LEE JENKINS, Appellant v. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD38917

No relief on circuit court error
Circuit court error was subject to review on direct appeal, and anything subject to direct appeal was not grounds for post-conviction relief, absent rare and exceptional circumstance. And that circumstance had to have been unknown to movant during trial and direct appeal. Movant alleged that he preferred self-representation, and challenged the circuit court’s procedure on that matter, movant knew about the error at trial. Movant went through two appeals, did not raise the circuit court error he raised in the motion, and showed no rare and exceptional circumstance. The Court of Appeals dismissed the appeal.
STEPHEN G. PERRY, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD38890

Post-conviction relief

No prejudice, no relief 
On a claim of ineffective assistance of counsel, the movant had to show prejudice from the counsel’s deficient performance. Trial counsel omitted forcible felony language from a self-defense instruction, based on trial counsel’s extensive experience with juries, and the movant offered no evidence or authority showing that prejudice resulted. “This Court finds Movant’s argument to be purely speculative and conclusory, which does not satisfy his burden of establishing prejudice.” The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Thomas J. Bricker, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District – ED113343

Probate

No safe harbor for contesting trust 
Documents governing a trust could provide that any beneficiary who contested the instrument forfeited their benefit and courts enforced those provisions. That included a challenge to a document amending a trust. Neither good faith nor probable cause supported an exception to that rule. The circuit court ruled in the trust’s favor and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
In the Interest of: Suzanne M. Kolb, Deceased.
Missouri Court of Appeals-Eastern District – ED113967

Real estate

Beneficiary deed did not sever joint tenancy 
A party with the burden of proof prevailed on summary judgment when that party established the material facts of the claim — facts under which the law entitled that party to a favorable judgment — unless the non-moving party raised a genuine dispute as to at least one such fact. The plaintiff sought a declaratory judgment stating that the plaintiff was the sole owner of property. The plaintiff’s motion established that the death of the decedent left the plaintiff as the only surviving tenant held by joint tenancy with right of survivorship. Survivorship was an automatic inheritance of the surviving joint tenants subject to an inter vivos transfer. The defendant showed that the decedent had named the defendant on an executed and recorded beneficiary deed. But beneficiary deeds could not transfer of title to property held in joint tenancy with right of survivorship under the governing statute. Therefore, the defendant’s showing did not put any material fact in dispute. The circuit court granted summary judgment for the plaintiff and the Missouri Court of Appeals affirmed that judgment. 
BRIAN S. SIELERT, Respondent v. JORDAN G. SIELERT, Appellant
Missouri Court of Appeals-Southern District - SD39233

Schools

Defendant’s verdict affirmed in sex discrimination claims 
The plaintiff student charged the defendants school and gym teacher with gender-based discrimination and a hostile environment through excessive discipline, aiding and abetting that conduct, and intentional infliction of emotional distress. The elements of that claim included gender as a motivating factor, which required evidence of disparate treatment under similar circumstances, which the plaintiff did not show. And the evidence showed that the motivation was the plaintiff’s membership on an athletic team, not the plaintiff’s gender, so a directed verdict on those theories was not error. As to assault and retaliation, expert medical testimony was unnecessary to prove emotional damages, and the plaintiff’s offer of proof did not show that the evidence was not cumulative, so the plaintiff did not show that prejudice resulted from the exclusion of such evidence. When the defendant’s closing argument stated that the plaintiff had offered no evidence of therapy, and the circuit court overruled the plaintiff’s objection, no plain error occurred because the plaintiff could have offered such evidence and did not. The circuit court entered judgment for the defendants and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Patricia Jackson, as Next Friend for L.J., a Minor vs. Excelsior Springs School District and Terri Irons
Missouri Court of Appeals-Western District – WD87661

Civil

Summary judgment response no good, pleading of affirmative defense not preserved
“This Court rejects the proposition summary judgment is an extreme and drastic remedy.” Appellate review of summary judgment was de novo but the appellant still had the burden of showing error. Summary judgment was due any party who established beyond genuine dispute the material facts, that is, facts on which the law entitled the moving party to a favorable ruling. A defendant could do so by alleging and evidencing facts that described an affirmative defense. Any affirmative defense had to appear in an answer, but the appellant did not preserve that matter and could not raise it in a reply brief. Responses to summary judgment motions had to raise a genuine dispute of material fact by responding respectively to the paragraphs as numbered in the motion and supporting each response with admissible evidence. Failure to comply constituted an admission. The appellant failed to comply and alleged no further material facts. The appellant showed no error so the Supreme Court of Missouri affirmed the summary judgment.
(Overview summary)
Lucas E. Wilkinson, Appellant, vs. Farmers Holding Companies d/b/a Capital Sand, Inc., Respondent.
Supreme Court of Missouri - SC101268

Criminal

ShotSpotter data was okay 
Out-of-court declarations that a party offered for the truth of the matter declared, and that depended on the declarant’s credibility for probative value, constituted hearsay. But not when the declarant was a computer unguided by human entries. That described ShotSpotter technology as described by a witness detective. Therefore, the detective’s testimony about ShotSpotter data was not hearsay. And such testimony, when “limited to information included in and ascertainable from the ShotSpotter report [,]” constituted lay testimony and not expert testimony. The rule of completeness provided that admitting a part of a video recording made admissible the whole recording for context. But there was no other whole recording for context, because each video clip offered was triggered by a motion detector and complete in itself, not part of a continuous recording. Admitting videos of the video clips did not violate the best evidence rule because the content of the clips was not in dispute. Admitting the videos of the video clips was not an obvious error, so the Missouri Court of Appeals declined plain error review. The Court of Appeals affirmed the convictions.
(Overview summary)
State of Missouri, Respondent, v. Davon R. Griffin-Curry, Appellant.
Missouri Court of Appeals-Eastern District - ED113192

Family

No enforcement, no appeal of contempt ruling 
Judgments were not subject to appeal until final. Judgments of contempt were not final until enforced. For a judgment coercing compliance by threat of confinement, enforcement meant confinement or an evidentiary hearing on purgation and re-issuance of a warrant for commitment. The circuit court found the appellant in contempt for failure to comply with an order to pay college expenses or face jail time. But the circuit court had not enforced the order, so it was not subject to appeal. The accompanying award of attorney fees was subject to appeal but moot because the appellant paid it. The Missouri Court of Appeals dismissed the appeal and denied a motion to stay the appeal as moot. 
(Overview summary)
Colleen L. Malone, Respondent, v. Jason B. Malone, Appellant.
Missouri Court of Appeals-Eastern District – ED113508

Future harm analysis discussed 
Circuit courts could terminate parental rights on clear, cogent, and convincing evidence of a statutory ground and a preponderance of the evidence that termination was in the child’s best interests. The circuit court found grounds for termination in abuse, neglect, and failure to rectify. Challenging all but one of the grounds left a ground for termination unchallenged and required affirmation of the judgment. The likelihood of future harm was not an element of termination, required no findings of fact in addition to the statutory grounds and best interest analysis, and was subject to projection from past behavior. The circuit court relied on past physical injuries that experts testified could not have been accidental, the appellant parent’s denial of abuse, and the appellant’s refusal of services. The circuit court terminated parental rights and the Missouri Court of Appeals affirmed that judgment. 
IN THE INTEREST OF: H.P. and A.P., children under seventeen years of age. GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent v. T.R.K., Respondent-Appellant
Missouri Court of Appeals-Southern District – SD39223, SD39224

No evidence, no record 
Termination of parental rights was the family law equivalent of the death penalty, a severe impact on a fundamental right. The Children’s Division had to attempt reunification of children with parents. An exception functioned as an equivalent to termination of parental rights for parents whom a circuit court found on clear, cogent, and convincing evidence to have “subjected the child to a severe act or recurrent acts of physical, emotional or sexual abuse toward the child.” On such allegations by the juvenile officer, in an action for care and treatment against the appellant parent, the juvenile officer had the burden of proof by a preponderance of the evidence at an adjudication hearing and a separate dispositional hearing. The latter determined whether and what services were appropriate for reunification. The parent denied the allegations, the parties stipulated to entering reports into evidence, but the parent did not admit the truth of the reports’ content, and the circuit court did not take judicial notice. The reports only relayed allegations unsubstantiated in any way. Such a record did not support a judgment relieving the Children’s Division of attempts at reunification, but the circuit court found in favor of the juvenile officer so the Missouri Court of Appeals reversed and vacated the judgment. 
(Overview summary)
In the interest of: I.J.L. and J.L.G.-G., Juveniles; Juvenile Officer vs. L.M.G.
Missouri Court of Appeals-Western District – WD88220 (Consolidated with WD88221)

Equalization payment was okay 
Appeal was possible from a final judgment. A final judgment in an action for dissolution divided all property and debt. That described allocating 100 percent of a corporation’s stock to one party so no separate allocation was necessary for “goodwill” or other “inherent value [.]” Expert evidence of the appropriate valuation methods for a corporation supported the circuit court’s choice, and evidence of a corporation’s earnings and cash flow constituted substantial evidence of the corporation’s value. The circuit court calculated an equalization payment accordingly, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
In Re the Marriage of: Janice R. Rendleman vs. David G. Rendleman
Missouri Court of Appeals-Western District – WD87855

Orders of protection

Harassment shown 
Full orders of protection could issue on allegations of harassment, the elements of which included conduct that caused substantial emotional distress with no legitimate purpose. The petitioner respondent supported those elements with records and testimony about unwelcome visits and communications, which the circuit court found credible, and which was due deference on appeal. The parties had to preserve errors in rulings by objecting contemporaneously and specifically. An exception for lack of opportunity to object did not apply when the appellant never raised the matter at all. The circuit court adjourned an evidentiary hearing part-way through, re-scheduled, and the appellant never objected, so those rulings were unpreserved for appeal. The circuit court granted the full order and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
M.J.R. vs. E.R.
Missouri Court of Appeals-Western District – WD87974

Personal injury

Record of safe driving was inadmissible 
The record showed that the appellant’s relevance objection was clear and specific enough to preserve error. In an action charging a truck driver with negligence, a record of good driving in the past was not probative of negligence at the time of the injury. The respondent’s emphasis on that evidence in closing demonstrated resulting prejudice. The circuit court abused its discretion and the Missouri Court of Appeals reversed the judgment. 
(Overview summary)
Keith Taylor, Plaintiff/Appellant, v. B&D Hauling, Inc., Defendant/Respondent, and Hurshel Head, Defendant.
Missouri Court of Appeals-Eastern District – ED113578

Anti-SLAPP statute discussed 
The statute governing strategic lawsuits against public participation expedited the disposition of meritless actions intended to obstruct participation in governmental proceedings, authorized awards of attorney fees, and provided interlocutory appeals from judgments of dismissal without prejudice. That statute did not affect the elements of a claim for defamation and the appellant plaintiff did not show on appeal that the petition stated a claim for defamation. The circuit court dismissed the petition and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Brian Kirk vs. Grace Evangelical Church, et al.
Missouri Court of Appeals-Western District - WD88127

Post-conviction

Abandonment did not require a remand 
Abandonment by appointed post-conviction counsel occurred when the movant had no part in the late filing of an amended motion. A conclusion that no abandonment occurred without a finding of movant participation in late filing constituted clear error. But the judgment exhaustively reviewed all claims in the amended and initial motions, so no remand was necessary, and appellate review of the claims was possible. Trial counsel’s performance was not deficient for choosing not to proffer a self-defense instruction when no evidence suggested that the victim was the initial aggressor. 
(Overview summary)
George Joyner, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District – ED113520

Remanded necessary for determination on timely filing 
Courts had to determine whether motions were timely filed because timely filing was an element of a claim and determined the circuit court’s authority. Timely filing was subject to stipulations of fact but not concession or waiver. No motion to amend was necessary to preserve the matter. Timely filing depended on the rule in effect on the date of the movant’s sentencing, not the date of filing. The record unmistakably showed abandonment by appointed counsel, an exception to the timely filing requirement. In the amended motion, the movant alleged timely filing of the pro se motion, but presented no evidence on that matter. Judicial notice of the right facts could have substituted, but the movant did not ask the circuit to take judicial notice of any facts. And driving times and holiday schedules could not have established a mailing date even by inference. The State’s proposed judgment concluding that the initial motion was timely filed did not constitute an admission of fact as to timely filing. The Missouri Court of Appeals reversed the judgment and remanded the action for an evidentiary hearing on the timeliness of the initial motion. 
(Overview summary)
Randy M. Taylor vs. State of Missouri
Missouri Court of Appeals-Western District – WD87850

Strategy on confession was sound 
When the record unmistakably showed that abandonment by appointed counsel caused untimely filing, no remand for an evidentiary hearing was necessary. The elements of a claim for ineffective assistance of counsel included deficient performance, which evidence of a sound strategy negated. That described the trial counsel choice to downplay the movant’s confession by not including it in voir dire. Sound strategy included the defendant not testifying, as trial counsel advised, when such testimony would have given advantages to the State and none for the defense. Expert evidence on false confessions was inadmissible. It was also unnecessary because the jury had a video recording of the confession from which to assess its credibility. The circuit court denied relief and the Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
David A. Harris vs. State of Missouri
Missouri Court of Appeals-Western District – WD87651

Probate

Judgment in action for accounting affirmed 
A challenge to a finding as against the weight of the evidence had to identify a finding of fact necessary to the judgment. In an action for accounting against a personal representative, the issue was the decedent’s assets when the decedent died. The decedent’s assets seven years before the decedent’s death were irrelevant. The existence of consideration and other events seven years after the formation of a contract was irrelevant to the formation of the contract. Only a party to a contract could raise the Statute of Frauds as to that contract. Clear, cogent, and convincing evidence of a contract included the parties’ complete performance of that contract. The appellant also charged error in a finding of fact that did not occur, and substantial evidence was not necessary to support a finding not made. A proposed judgment setting forth the standard of proof did not preserve error as to the standard of proof. The appellant’s argument on appeal was insufficient to show judicial estoppel. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
In the Estate of Sue Ann Hughes, Deceased, Melanie L. Edwards vs. Christopher W. Hughes, as Personal Representative of the Estate of Sue Ann Hughes and Individually
Missouri Court of Appeals-Western District – WD87892

Tax

Standing to raise constitutional challenges discussed
Courts addressed controversies that were justiciable, meaning ripe for adjudication and brought by a party with standing. Standing meant having a legally protected interest that was subject to a substantial controversy. One person could not challenge another person’s property tax assessment. “This principle applies regardless of whether the plaintiff is a corporation, next-door neighbor, or a school district.” School districts could litigate their own rights to proper assessment procedure by declaratory judgment and writ relief, but challenging someone else’s assessment was litigation of someone else’s rights. The constitutional provisions addressing due process of law, retrospective laws, and irrevocable special privileges and immunities protected citizens, not the State, its political subdivisions, and their officers. But the assessor had standing to enforce constitutional provisions addressing the assessor’s own authority, like the ban on statutory tax exemptions, the duty to assess property at fair market value, and to assess property uniformly. Constitutional provisions also delegated the method of determining fair market value to the General Assembly, and the assessor did not show that a credit for improvements would eventually create an exemption. Uniformity applied to rates per subclass, not to assessment methods or results. The Supreme Court of Missouri dismissed for lack of standing all claims of the intervenor school district and some claims of the appellant county assessor. As to the remaining claims, the Supreme Court affirmed the judgment of the circuit court, which affirmed the decision of the State Tax Commission.
(Overview summary)
David Cox, Appellant, and Park Hill School District, Appellant, vs. Grady Hotel Investments, LLC, and Missouri State Tax Commission, Respondents.
Supreme Court of Missouri - SC101131

ADR

No notice given, no arbitration compelled 
When the facts were undisputed, appellate courts reviewed de novo whether an arbitration agreement was enforceable and the circuit court should have granted a motion to compel. When parties expressly agreed that State law governed their arbitration agreement, federal law did not pre-empt State law, even when the agreement involved interstate commerce. The parties agreed that the Missouri Arbitration Act applied to their arbitration agreement, so the Federal Arbitration Act did not apply. The Missouri Arbitration Act required arbitration agreements to include a notice as specified. “[W]hen an arbitration agreement is subject to the [Missouri Arbitration Act], and does not include the mandatory notice statement required . . . , the arbitration agreement cannot be enforced.” The circuit court denied the motion to compel, and the Missouri Court of Appeals affirmed that ruling. 
(Overview summary)
Tri-Star Imports, Inc., d/b/a Mercedes-Benz of St. Louis, Respondent, v. Jackson Lewis, P.C., et al., Appellants.
Missouri Court of Appeals-Eastern District - ED113734

Elections

St. Louis ethics initiative unripe for judicial action 
Summary judgment was due a party that established, beyond genuine dispute, the facts entitling it to a favorable ruling. Courts ruled only on claims that were justiciable. Justiciability included ripeness. Ripeness meant “an immediate, concrete dispute” in contrast to a “hypothetical or speculative situation that may never come to pass.” That described the plaintiff’s claim for declaratory judgment on an initiative addressing outside employment for members of the St. Louis Board of Aldermen. The plaintiff was a member of the board but did not allege that she had any outside employment or any such prospect. Those facts showed an unripe claim. On an unripe claim, courts would not reach the merits of the claim and would only dismiss the claim. The summary judgment record showed that the defendant City of St. Louis was entitled to a judgment of dismissal, so the Missouri Court of Appeals entered judgment accordingly. 
(Overview summary)
Laura Keys, Appellant, v. City of St. Louis, Respondent.
Missouri Court of Appeals-Eastern District - ED113771

Deceptive language stricken from ballot summary on initiative protections
On a record of undisputed fact, appellate courts review the judgment de novo. For constitutional amendments proposed by initiative petitions, the Secretary of State had to certify ballot summaries. The General Assembly enacted a procedure for the Secretary to revise ballot summaries by unconstitutional means, so any such revision was null. Ballot summaries had to be impartial and informative. That did not describe a ballot summary that included a matter not addressed in the proposed amendment, and that speculated as to a possible side effect without any reasoned basis. The summary argued that the proposal would increase non-Missouri influence, but the proposal only decreased the General Assembly’s influence, on initiatives. That language was “therefore deceptive, misleading, and argumentative [.]” The circuit court struck the offending language and the Court of Appeals affirmed that judgment.
(Overview Summary)
Caitlyn Adams vs. Denny Hoskins, in his official capacity as the Missouri Secretary of State
Missouri Court of Appeals, Western District - WD88831

Post-conviction

Credibility thwarted relief 
The movant claimed that the movant premised a guilty plea on the plea counsel’s advice that the movant could still seek suppression of evidence later. At the evidentiary hearing on the motion, the plea counsel testified that the plea counsel’s advice was the opposite: suppression would no longer be an option. The circuit court believed the plea counsel, and that determination found deference on appeal. The circuit court denied relief, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Rafael M. Armstrong vs. State of Missouri
Missouri Court of Appeals-Western District – WD87710

Advice against testifying was sound 
“Counsel’s advice regarding whether to testify ‘does not constitute a ground for post-conviction relief, absent exceptional circumstances.’” A claim for ineffective assistance of counsel required a showing of substandard performance, which was negated by a showing of sound strategy. Sound strategy included advice against testifying when the movant had already given two other inconsistent versions of the events, had prior convictions, and was on probation. The circuit court’s colloquy with the movant supported that conclusion, and the movant’s dissatisfaction in hindsight did not undermine that conclusion. A claim for ineffective assistance of counsel required a showing of prejudice, which the movant could not show because the movant’s third version of the events was self-defense, which was unavailable against the charge of felony murder. The circuit court denied relief, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Teraz L. Bateman, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District – ED113579

Investigation and evidence was sufficient 
“The selection of witnesses and the introduction of evidence are questions of trial strategy and virtually unchallengeable in an ineffective assistance claim.” Such a claim required the movant to show that prejudice resulted from the counsel’s deficient performance, which was negated by showing a reasonable strategy. Reasonable trial strategy included investigating and presenting evidence enough to refute the State’s allegations when further investigation and evidence would have provided no further viable defense. 
(Overview summary)
Marvin Rice, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District – ED113437
 

Tax

Local sales tax was optional 
Writs of mandamus were due only for ministerial duties to which the petitioner had an unequivocal right. When circuit courts issued a preliminary order in mandamus, and denied a permanent writ, that judgment was subject to appeal. Review was for abuse of discretion. When the parties did not dispute the facts, the only review was of the circuit court’s legal conclusions. Tax statutes were subject to strict construction against the tax. An initiative could authorize a county’s governing body to levy a sales tax by ordinance, and did not mandate such a tax. Without that mandate, the circuit court denied issuance of the writ. The Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Warren G. "Greg" Plumb and Tara Bennett vs. Missouri Department of Revenue, et al.
Missouri Court of Appeals-Western District - WD88043

Appellate

No ruling requested, no error preserved
If the State deliberately injected evidentiary error into a criminal trial, mistrial was a remedy. A State witness testified beyond the scope of the circuit court’s order in limine, the defendant moved for a mistrial, the circuit court gave a curative instruction, and the defendant neither objected nor sought a ruling on a mistrial. Those events preserved no error as to mistrial, leaving only review for plain error. Plain error’s elements included an obvious error that caused a manifest injustice or miscarriage of justice. The defendant did not show deliberate transgression of the order in limine, nor manifest injustice or miscarriage of justice in the curative instruction, and the law disfavored plain error review on ruling resulting from the defendant’s failure to act. The Missouri Court of Appeals declined plain error review and the affirmed the conviction. 
(Overview summary) 
State of Missouri, Respondent, v. Mark Love, Appellant. 
Missouri Court of Appeals-Eastern District - ED113402

Civil

Default pending removal affirmed
Notice of removal timely filed and served on all adverse parties would have subjected an action in circuit court to the jurisdiction of a United States district court, but the appellant defendant did not show compliance with that procedure, and such jurisdiction would have been concurrent with the circuit court. The timely filing of an answer would have negated default and required the circuit court to set aside the default judgment, but the defendant did not show timely filing of an answer. Parties in default had no right to notice of the default proceedings. The circuit court did not err in denying the defendant’s motion to set aside the default judgment. 
(Overview summary) 
Kathleen A. Kiska vs. Harold E. Fortner, Jr.
Missouri Court of Appeals-Western District – WD88015 consolidated with WD88016

Summary judgment responses stricken 
The movant for summary judgment prevailed by establishing beyond genuine dispute the facts that entitled them to a favorable judgment. On a motion for summary judgment, the non-moving party had to respond to the movant’s statement of undisputed facts with an admission or a denial, and a denial was deemed an admission unless it complied with the mandated format. That format excluded any matter beyond the numbered paragraph of the motion that the response addressed; and required the response to raise any genuine dispute of material fact by alleging such fact and supporting that allegation with evidence. Responses that only quoted deposition testimony did not comply. No court, neither circuit nor appellate, could “determine whether there are possibly isolated phrases or statements … that technically comply … without impermissibly acting as advocates … separating facts from conclusions, isolating admissions from disputes, and determining the material from the immaterial.” A motion to stay summary judgment pending additional discovery had to describe the relevance of such discovery and include a supporting affidavit, which the non-movant failed to do, so the circuit court did not abuse its discretion in denying the stay. Motions to strike challenged the content of motions and responses. The circuit court did not abuse its discretion in striking appellant’s non-compliant responses, and those non-compliant responses could not support an argument on appeal. The circuit court granted the motion for summary judgment, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Liliya Turubchuk, Individually and Personal Representative of the Estate of Aleksey Turubchuk, Deceased, Ludmilla Nemtsova, and Irina Turubchuk, Appellants, v. Jamie Boock, Matthew Rossiter, and Rossiter & Boock, LLC, Respondents. 
Missouri Court of Appeals-Eastern District - ED113473

Criminal

SORA included third-degree assault 
Missouri’s Sex Offender Registration Act required the registration of any person convicted of an offense, regardless of the offense’s category, against a minor on sexual facts. The facts were subject to proof by testimony and documents, not including abandoned pleadings, but including probable cause statements. In an action for declaratory judgment, petitioner sought removal from the registry. Petitioner had a conviction for assault in the third degree, the elements of which had no sexual nature. But the allegations in the probable cause statement included sexual contact. Petitioner did not carry the burden of proof, so the circuit court denied relief, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Brent E. Outersky vs. Missouri State Highway Patrol 
Missouri Court of Appeals-Western District – WD87818

Faulty instruction required new trial 
In criminal actions, instructions had to submit every element of the offense charged, and departure from approved instructions was presumptively prejudicial. The offense charged was resisting detention, the elements of which included the lawfulness of the detention, which the instructions substituted “that the basis for the detention was for service of a court order[.]” That alteration relieved the State of its burden to prove each element of the offense. The Missouri Court of Appeals vacated the conviction and remanded the action for a new trial. 
STATE OF MISSOURI, Respondent v. VICTOR LAMONT HOUSTON, Appellant 
Missouri Court of Appeals-Southern District – SD38926

Propensity evidence okay
In the trial of specified offenses, evidence of prior uncharged bad acts was admissible as corroboration or propensity evidence. Such evidence was also admissible to show motivation when the victim was the same in the charged and uncharged offenses. That described a video of victim describing a prior uncharged offense by defendant. The probity of such evidence outweighed any unfair prejudice. The Court of Appeals affirmed the conviction.
STATE OF MISSOURI, Plaintiff-Respondent v. DANIEL W. MATLOCK, Defendant-Appellant
Missouri Court of Appeals-Southern District – SD38693

Evidence

Expert testimony, punitive damages award, okay in industrial toxin case 
Motions in limine required corresponding objections and offers of proof to preserve error as to the admission or exclusion of evidence. The foundation for expert testimony included “knowledge, skill, experience, training, or education,” but not labels. The plaintiff’s expert had qualifications in industrial hygiene, including conditions that resulted from high concentrations of the defendant’s food flavoring chemicals in the plaintiff’s workplace, so whether the expert was a “flavor scientist” was irrelevant. The foundation for expert testimony also included an opinion based on the information ordinarily used by such experts, including another expert’s opinion, and that information did not have to be in the record. The testimony of an expert on the cause of a medical conditions was reliable when the expert began “by ‘ruling in’ all scientifically plausible causes of the plaintiff’s injury. The [expert] then ‘rule[d] out’ the least plausible causes of injury until the most likely cause remain[ed].” Other challenges went to the weight of the expert testimony and not admissibility. The circuit court did not err in admitting evidence of similar illnesses at other workplaces and excluding some of the defendant’s evidence related to alternate causes for the plaintiff’s condition based on probative value versus possible jury confusion. The appellant defendant’s motion for judgment notwithstanding the verdict challenged whether the plaintiff had made a submissible case on several elements. Each challenged element had to be the subject of a separate point relied on and combining them in a multifarious point preserved nothing for review. Punitive damages in the amount awarded were possible because they were possible in 1820. The elements of punitive damages included conscious disregard for safety, which the plaintiff showed with evidence that the defendant had failed to report information to OSHA. Reprehensible conduct punishable by fines supported the amount, and the ratio to compensatory damages, of punitive damages awarded. And the defendant’s net worth was “a valid consideration.” Post-judgment interest accrued on the entire judgment, including the State’s share of punitive damages. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary) 
James J. Graham, Respondent, v. Givaudan Flavors Corporation, Appellant. 
Missouri Court of Appeals-Eastern District – ED113318

Testimony controlled over exhibit 
The elements included use of a dangerous instrument. The State alleged that the defendant’s assault on a sheriff’s deputy included the use of a chair as a weapon. As proof, the State offered a demonstrative exhibit, described by the deputy as similar to the one that the defendant used. “The chair in the photo was wicker with a flat back, while the chair Carroll swung at the deputy was galvanized metal with a rounded back.” On those facts, the testimony was determinative and not the photo, and the photo could not have prejudiced the defendant. Therefore, admitting the photo into evidence was not error and resulted in no manifest injustice. The Missouri Court of Appeals declined plain error review and affirmed the convictions. 
(Overview summary) 
State of Missouri, Respondent, v. Craig Carroll, Appellant. 
Missouri Court of Appeals-Eastern District – ED113225

Orders of protection

Stalking not shown 
In actions for a protective order based on stalking, the petitioner had to show at least two events of a specific nature that caused petition to fear physical harm with no legitimate purpose. The petitioner showed only one such event at most. Another event had a legitimate purpose and did not cause the petitioner any apprehension. The Missouri Court of Appeals vacated the judgment and remanded the action to circuit court with directions to vacate the order and deny the petition. 
C.C., Petitioner-Respondent v. DENNIS MANNON, Respondent-Appellant 
Missouri Court of Appeals-Southern District – SD38864

Post-conviction

No claims for parole eligibility 
Rule applied to “the validity of judgments of convictions or sentences, and then only on specified grounds.” The movant did not challenge the validity of any judgment, conviction, or sentence; the movant challenged the Missouri Department of Corrections’ determination of the minimum sentence that the movant had to serve before becoming eligible for parole. The circuit court denied the motion without an evidentiary hearing and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Joshua Williams, Appellant, v. State of Missouri, Respondent. 
Missouri Court of Appeals-Eastern District – ED113664

Abandonment inquiry required
On the filing of initial motions, the circuit court had to appoint counsel. Timely filing of the initial motion was an element of any claim, with limited exceptions. But even if an initial pro se motion was late, appointed counsel was still due for investigation and the filing of an amended motion to plead an exception. Exceptions included third party interference. Timely filing of the amended motion was also an element of the amended claim, with limited exceptions. The exceptions included abandonment. Abandonment occurred when appointed counsel failed to file an amended motion or statement in lieu. An inquiry was due on allegations, or a record showing, abandonment. No specified format was necessary as long as the inquiry was sufficient for appellate review. Movant filed the initial motion pro se, alleging third party interference, the State filed a motion to dismiss, and appointed counsel never filed an amended motion or statement in lieu. The circuit court did not make any inquiry into abandonment and granted the motion to dismiss without an evidentiary hearing on the motion. The Court of Appeals reversed the judgment of dismissal and remanded the action for an inquiry into abandonment.
DAVID KARL BAUER, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD38925

Tax

City licensing tax settlement enforced 
Cities imposed business license taxes on the gross receipts from the sale of telecommunication services and settled disputes with telecommunications service sellers by written agreement. Settlement agreements were subject to enforcement like any other contract and did not implicate the Hancock Amendment. Only contracts in which no ambiguous language required parol evidence were subject to summary judgment. But courts held sophisticated parties to objectively plain contract provisions “without regard to the parties’ subjective intent.” Summary judgments were subject to appellate review de novo. To define the scope of the tax’s levy, the agreement referred to the United States’ Mobile Telecommunications Sourcing Act’s definition of mobile telecommunications services. That definition did not include sales of miscellaneous goods and services in dispute. And the United States’ Internet Tax Freedom Act and Missouri statutes barred taxation on bundled internet access charges that were separately stated and reasonably identified. As to gross receipts from those sales, the Missouri Court of Appeals affirmed summary judgment for the respondent sellers. The Mobile Telecommunications Sourcing Act also defined mobile telecommunications services to exclude certain pre-paid services from local sourcing but not the defendants’ pre-paid services. The circuit court erred by excluding pre-paid services, so the Court of Appeals reversed summary judgment for the sellers to that extent and remanded the action to circuit court to determine the plaintiff cities’ damages from the sellers’ improper sourcing. 
(Overview summary) 
City of University City, Missouri, et al., Appellants, v. AT&T Wireless Services, Inc. et al, Respondent. 
Missouri Court of Appeals-Eastern District – ED113046

Appellate

No transcript, no appeal 
Every appellant’s brief had to state whether and how the appellant preserved error, set forth each error under each theory in a separate point relied on, restate each point relied on at the beginning of the argument discussing that point, and refer to the record by page number in the statement of facts and argument. The appellants had to compile the record and, when challenging a judgment’s evidentiary basis, include any transcript from any evidentiary hearing. The appellant failed to comply with those requirements. Those requirements were necessary to preserve judicial impartiality and give notice of any theory for reversal. “Additionally … we have been unable to locate one of the cases with the citation provided or by use of the party name.” After notice, opportunity, and failure to correct, the Missouri Court of Appeals granted respondent’s motion to dismiss the appeal. 
(Overview summary) 
In the Interest of: D.S.G., Individually and by His Next Friend, Laura Jo Fretwell, and Laura Jo Fretwell, Individually vs. Jon Frederick Gue
Missouri Court of Appeals-Western District – WD87845

Contracts

Forum selection clause was not enforceable
Courts did not hear actions not ripe for adjudication, meaning allegations too uncertain to assess the facts, and the petition alleged events that had occurred and damages that had accrued, so the action was ripe. Petitions also had to allege facts describing a claim for relief; and the defendant did not show that the petition lacked any element of breach of contract, fraud, fraudulent inducement, tortious interference with a contract, and interference with a business expectancy; so the petition stated a claim. The circuit court ordered the action heard in a Delaware court of general jurisdiction, because the contract selected Delaware courts that lacked subject matter jurisdiction, but courts could not re-write contract provisions even when such provisions were impossible to enforce. Neither the doctrine of forum non conveniens nor comity required filing in Delaware because Missouri courts were the more convenient forum in that the defendant solicited Missouri business. “If [the defendant] finds Missouri entities appealing to its economic appetite then Missouri courts can fulfill its legal tastes as well.” The circuit court abused its discretion when dismissing the action, so the Missouri Court of Appeals reversed that judgment and remanded the action. 
(Overview summary) 
Kogent Holdco, LLC and Katalyst Holdco, LCC, Appellant, v. Carl Zeiss Meditec, Inc., Respondent 
Missouri Court of Appeals-Eastern District – ED113482

Criminal

Pre-trial motion to suppress was insufficient 
The defendants had to object and make a motion for suppression at trial so that circuit judges could rule on the evidence presented on the motion at trial. A pre-trial motion to suppress was, alone, insufficient. And, even if sound trial strategy supported the defense’s use of the evidence that was subject to the motion to suppress, introducing such evidence rendered the admission of that evidence invited error. The Missouri Court of Appeals declined to review such invited error. 
(Overview summary) 
State of Missouri vs. Christopher M. Marshall 
Missouri Court of Appeals-Western District – WD87258

Employment

Gender and disability claims not stated 
Any petition had to state a claim for relief by alleging ultimate facts, meaning more than conclusory assertions, on which the law granted a remedy, and failure to do so was grounds for dismissal. The Human Rights Act provided private rights of action for employment discrimination and hostile work environments based on gender and disability. The plaintiff asserted a gender-based hostile work environment, but described only isolated incidents, rather than the severe and persuasive harassment that constituted a hostile work environment. Disability meant having, or being treated as having, an impairment of a major life function. The plaintiff alleged that she had pregnancy complications that were only temporary, and subject to accommodation by remote work or other jobs, which did not describe disability. The circuit court did not err in dismissing the claims for employment discrimination and hostile work environments based on disability. The circuit court also did not err in implicitly denying leave to amend the petition when the plaintiff never proposed any amendment. But the circuit court erred in dismissing the plaintiff’s gender discrimination claim based on pregnancy for failure to exhaust administrative remedies. While courts had no authority to grant any remedy until the plaintiff had exhausted any available administrative remedy, and the act provided an administrative enforcement action, the plaintiff alleged adverse employment actions based on pregnancy complications, and so did not have to amend her notice to include her eventual firing. The circuit court erred in holding otherwise, and was proffered no other grounds for dismissal, so the Missouri Court of Appeals vacated the dismissal of and remanded that claim to the circuit court. 
(Overview summary) 
Chelsea Elder, Appellant/Plaintiff, v. The Washington University - St. Louis, Respondent/Defendant 
Missouri Court of Appeals-Eastern District - ED113610

Evidence

Probity and prejudice discussed
Point relied on and arguments preserved nothing for review that cited events at trial generally instead of specific rulings and failed to apply the standard of review. Abuse of discretion was more than disagreement with the circuit court’s ruling; it was a test of any reasonable person could have made that ruling. Even then, reversal required appellants to show that the ruling was so prejudicial as to be outcome-determinative. The exclusion of evidence was not grounds for reversal unless the evidence’s relation to the issues and probative value was clearly greater than the risk of confusion and prejudice. Confusion and prejudice were likely with evidence of settlement preparations because juries could confuse negotiation positions with legal or factual merit. Without explanation of any non-hearsay purpose, plaintiffs offered a memorandum that included layperson’s hearsay opinion and was prepared for settlement negotiations 20 years earlier. Plaintiff also offered a settlement contract setting forth the defendants’ joint efforts at remediating ground contamination after the events at issue. Neither plaintiff’s expert’s use of the memorandum to prepare an opinion, nor plaintiff’s characterization of the memorandum as a business record or prior inconsistent statement, made the memorandum admissible over considerations of probity and prejudice. The record supported a defendants’ opening statement description of the plaintiff’s evidence so the documents did not constitute opened-door evidence. The circuit court excluded the documents from evidence, barred plaintiff from using the settlement on direct examination of plaintiff’s expert to impeach anticipated testimony of defendants’ expert, and barred plaintiff from using the memorandum to cross-examine a defendants’ expert. None of those rulings constituted an abuse of discretion. Also, plaintiff made no offer of proof as to what the experts’ testimony on the memorandum would have been. And the proffered evidence was cumulative of other evidence entered without objection. When plaintiffs never asked a defense expert’s opinion about contamination at a specific well, the expert’s opinion on that matter was not a new opinion. Asking the expert during a deposition generally for all opinions was insufficient. “A party cannot claim surprise based on ‘new opinions’ as to matters about which the expert witness has not been asked during discovery.” The circuit court did not abuse its discretion in overruling plaintiffs’ objection to the opinion testimony. The circuit court entered judgment for the defendants and the Court of Appeals affirmed that judgment.
CRYSTAL GRAY, individually and as NEXT FRIEND of minors C.G., E.G., and Connie Gray, as Class I Beneficiaries of WILLIAM GRAY, et al., Plaintiffs-Appellants v. MODINE MANUFACTURING COMPANY and HAMILTON SUNDSTRAND CORPORATION, Defendants-Respondent
Missouri Court of Appeals, Southern District - SD38369

Local government

Collection of judgment against city discussed 
Judgments denying a writ of mandamus were subject to review for abuse of discretion. Judgments granting a writ of mandamus were subject to review like any other civil judgment: “sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.” Judgments against incorporated cities were subject to collection by taxes to satisfy those judgments as ordered by writs of mandamus. Writs of mandamus issued only to compel the performance of duties for which the law prescribed the conditions and manner of performance even without the writ. The circuit court ordered debtor city to pay a judgment from existing city funds, which no law required. And circuit courts could issue such writs only after an unsatisfied attempt at execution by levy on city property — even though levying on city property was generally barred. The circuit court erroneously declared or applied the law, so the Missouri Court of Appeals vacated the judgment and remanded the action. 
STATE OF MISSOURI EX REL. REBECCA VARNEY, Relator-Respondent v. CITY OF EDGAR SPRINGS, MISSOURI, ET. AL., Respondents-Appellants 
Missouri Court of Appeals-Southern District - SD38838

Personal injury

Instruction described contributory negligence and not assumption of the risk 
The parties were entitled on request to any instruction for which the jury had enough evidence to find that the instruction’s proffered facts were true. The Federal Employer’s Liability Act provided that railroads were liable to their employees for workplace negligence, subject to employee contributory negligence, but not subject to assumption of the risk. Assumption of the risk meant consenting to risks that the employer created. Contributory negligence meant that the employee created additional risk. Additional risk included failing to keep a lookout for and yield to, oncoming trains in a railyard. The evidence supported an instruction on that matter and the instruction did not constitute an assumption of the risk defense. 
(Overview summary) 
Ronnie Inglis vs. BNSF Railway CO 
Missouri Court of Appeals-Western District – WD87866

Post-conviction

No evidentiary hearing was necessary to deny DNA testing 
On any motion for DNA testing, circuit courts issued show-cause orders. But no evidentiary hearing on a show-cause order was necessary when the motion, or “the files and records of the case[,] conclusively showed that the movant is not entitled to relief.” The elements of a claim for post-conviction DNA testing included that DNA was unavailable for trial but the movant had six months to procure DNA testing. The elements also included a reasonable probability that exculpatory results would have resulted in acquittal, but other evidence supported the convictions. The circuit court did not err in denying relief. 
(Overview summary) 
State of Missouri, Respondent, v. Darrell Bolden, Appellant 
Missouri Court of Appeals-Eastern District – ED113948

Choice among mutually exclusive strategies was reasonable 
No claim resolved on direct appeal was grounds for post-conviction relief. The movant first claimed that trial counsel was ineffective for failing to raise a relevance objection to an exhibit. The Missouri Court of Appeals had already found no plain error in the admission of that exhibit on relevance grounds. That ruling barred the movant’s first claim. The movant also claimed that trial counsel was ineffective for failing to present general self-defense and self-defense under the castle doctrine. On charges of unlawful use of a weapon and assault in the fourth degree, the elements included the use of force. Trial counsel chose to negate the use of force, and that choice was reasonable because evidence supported it. Reasonable strategies negated charges of ineffective assistance of counsel. That applied to selection of a reasonable trial strategy that excluded other reasonable trial strategies. Each of the movant’s preferred defenses conceded the use of force, making them mutually exclusive with trial counsel’s chosen trial strategy. The circuit court denied relief, and the Court of Appeals affirmed that judgment. 
(Overview summary) 
Leonard H. Burst, Jr., Appellant, v. State of Missouri, Respondent 
Missouri Court of Appeals-Eastern District – ED113827

Reasonable reliance not shown 
Circuit courts could deny relief when the record refuted the movant’s allegations. The elements of ineffective assistance of counsel included substandard performance, which the movant’s praise of counsel refuted. The elements of ineffective assistance of plea counsel included a guilty plea entered not knowingly and not voluntarily. Such was the case when plea counsel made a positive representation about sentencing, upon which the movant relied on mistakenly but reasonably. The movant did not reasonably rely on any representation that the movant would receive probation when plea counsel characterized probation as “extremely unusual” and “completely rare[.]” The circuit court denied relief, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Gregory V. Thornton, Appellant, v. State of Missouri, Respondent 
Missouri Court of Appeals-Eastern District – ED113502

Appellate

Written findings of fact offer an advantage on appeal 
Circuit courts had to make written findings of fact on a request made before the introduction of evidence and specifying controverted material facts on which the movant sought written findings. The appellant failed to comply with those requirements and so “forfeits that advantage on appellate review, because the trial court’s findings are considered as having been found in accordance with the judgment.” And appellate courts affirmed judgments on any basis that had support in the record, so challenging less than all theories required the Missouri Court of Appeals to affirm the judgment. 
(Overview summary)
Michelle Cerruti, et al., vs. Bank of Odessa
Missouri Court of Appeals-Western District – WD87822

Notice of appeal was too late 
Appellate courts had to examine their own jurisdiction sua sponte and on theories besides those raised by the parties. The circuit court’s authority over the original judgment extended until, and expired when, the circuit court ruled on all timely filed after-trial motions. The ruling made the judgment final, starting the time to file a notice of appeal. That ruling also ended the circuit court’s authority so an amended judgment entered after that — even on the same day — was unauthorized and so did not start another time to file authorized after-trial motions. The appellant timely filed a notice of appeal from the void amended judgment but not from the original effective judgment. The Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
200 W Armour Boulevard, LLC vs. Tabitha A Judson
Missouri Court of Appeals-Western District – WD87282

Criminal

Propensity evidence discussed
The sufficiency of the evidence required no preservation and depended on whether all evidence, whether or not published to the jury, supported a conviction on the offense as described in the charging instrument. Propensity evidence was admissible in criminal actions alleging sexual misconduct with a child depending on probity of guilt and unfair prejudice to the defense. When the defense attacked the victim’s credibility, and the prior bad act alleged was similar to the charged offense, probity was increased. When the defense’s cross-examination elicited evidence that prior bad acts were never prosecuted, prejudice was decreased. When the record showed no violation of a motion in limine, the Missouri Court of Appeals denied plain error review. The record supported a conviction for either solicitation of a child or for the attempt. Matters tried to the bench were presumptively free of any error based on inadmissible evidence, and the defendant did not overcome that presumption as to the victim impact statement of the victim of the defendant’s prior bad acts. The Court of Appeals affirmed the convictions. 
(Overview summary)
State of Missouri vs. Timothy Edward Brown
Missouri Court of Appeals-Western District – WD87759

Felony resisting v. Misdemeanor resisting 
The sufficiency of the evidence depended on whether all evidence, including evidence not published to the jury, supported a conviction. Resisting arrest by fleeing was a felony if the arrest was for a felony. The defendant fled from an arrest for offenses that included a felony so the defendant was guilty of a felony. The warrant for the arrest was in evidence so it supported the conviction. Moreover, it was not published to the jury on the parties’ admissions and stipulation. The Missouri Court of Appeals affirmed the conviction. 
(Overview summary)
State of Missouri vs. Micah Nathaniel Cunningham
Missouri Court of Appeals-Western District – WD87681

Cell phone seizure and search okay 
The search of a cell phone seized incident to an arrest was subject to the requirement of a warrant, or an exception to the warrant requirement, and the seizure may become unreasonable over the time between the seizure and an application for a search warrant. One and a half days was not too long for a reasonable seizure, especially when the defendant made no demand for a cell phone’s return, and considering the potential value of evidence in the phone. On the admission of testimony, preservation of error required a contemporaneous objection and a pre-testimony objection was insufficient. No manifest injustice or miscarriage of justice, and hence no plain error, resulted from the admission of cumulative evidence identifying the defendant as the driver of a vehicle. On the exclusion of evidence, preservation of error required an offer of proof. The defendant did not show any manifest injustice or miscarriage of justice, and hence no plain error, resulting from the exclusion of evidence not described in any offer of proof, especially considering other evidence of guilt. The Missouri Court of Appeals affirmed the convictions. 
(Overview summary)
State of Missouri vs. Cleon D. White
Missouri Court of Appeals-Western District – WD87062

Two victims, two convictions, no double jeopardy 
Double jeopardy left legislatures free to define offenses and fix punishments, but barred courts from trying any defendant for any one offense more than once, and from imposing multiple punishments per offense. Multiple punishments therefore depended on whether multiple offenses occurred, and multiple offenses could occur on a single set of facts, like causing injuries to multiple persons. The elements of driving while intoxicated felony class E included the driver causing physical injury to another person. The elements of driving while intoxicated felony class D included the defendant causing serious physical injury to another person. Those provisions constituted, not differing degrees of one offense, but separate offenses with separate elements. The driver caused physical injury to a first victim and serious physical injury to second victim, which supported convictions for each victim, class E and D respectively. The Missouri Court of Appeals affirmed the convictions. 
STATE OF MISSOURI, Respondent v. RAYETTA ANN LAYTON, Appellant
Missouri Court of Appeals-Southern District – SD38797

No sentence of confinement without counsel 
No person could receive a jail sentence unless represented at trial. The defendant was indigent and never waived counsel. Plain error occurred when the circuit court imposed a sentence that included confinement in jail without appointing counsel. The Missouri Court of Appeals vacated the conviction and remanded the action. 
CITY OF BRANSON WEST, Plaintiff-Respondent v. NATASHA RICHARDSON, Defendant-Appellant
Missouri Court of Appeals-Southern District – SD39051

Defendant opened the door to evidence of bond violations 
To counter a matter raised first by the defendant, the circuit court could admit otherwise inadmissible evidence from the State; so, when the defendant raised the conditions of the defendant’s bond, the State could offer evidence of the defendant’s bond violations. Evidence of escape was admissible to show consciousness of guilt and the defendant’s explanation went only to the weight of such evidence. When the error charged was the erroneous admission of evidence, prejudice meant that a finding of guilt was not reasonably likely without that evidence. That did not describe the firearms-related literature and paraphernalia found in the defendant’s possession when compared to “the weighty and material evidence the State presented to the jury to support his conviction.” Plain error review was discretionary and inviting error in general — specifically, complaining of an instruction that the defendant submitted — supported a determination to decline plain error review. The defendant had the right to jury findings on his status as a prior and persistent offender status, and the circuit court made those findings instead; but those findings had no effect on the sentence, so no plain error occurred. 
(Overview summary)
State of Missouri, Respondent, v. Mark R. Perry, Appellant.
Missouri Court of Appeals-Eastern District - ED113016

Family

"Thorough and thoughtful judgment” affirmed on property valuation and maintenance 
Rulings on judicial notice were subject to review for abuse of discretion. No abuse of discretion occurred when the circuit declined to take judicial notice of an interlocutory ruling in the manner sought; the record showed that the circuit court did take official notice of the interlocutory ruling, and the appellant showed no prejudice. Circuit courts were free to find the value of property anywhere within the range of values that evidence supported. “Indeed, it is difficult to countenance Husband’s complaint on appeal when he was awarded a home specifically valued at $965,033 while Wife was imputed a home valued at $600,000.” The circuit court made no error in calculating the expenses and income of the party receiving maintenance, and in adjusting the paying party’s income by considering a substantial over-withholding for income taxes. Circuit courts had to make written findings of fact on request and failure to comply was cause for reversal when material interference with appellate review resulted. “Here, the judgment is indeed ‘exemplary’ and demonstrates careful consideration of the facts and law. Without relying on proposed judgments from the parties, the judge wrote his own findings and conclusions addressing the controverted issues . . . and certainly addresses the material issues. Such a thorough and thoughtful judgment actually drafted by the trial judge supports rather than interferes with appellate review.” 
(Overview summary)
Ivan S. Ganev, Appellant, v. Dondee D. Ganev, Respondent.
Missouri Court of Appeals-Eastern District - ED113253

Insurance

Insurer’s right to intervene explained
An arguable defect in the appellant’s point relied on did not impede appellate review and so did not require dismissal. In actions for personal injury, when the plaintiffs and defendants agreed to settle for insurance coverage limits, the defendants’ insurers had the right to intervention unbound by any stipulations that the plaintiff and defendant made. The purpose of intervention was to contest the defendants’ liability on the merits, not merely coverage, including trial by jury. A partial summary judgment resolving only one of three cross-claims by the defendant against the defendant’s insurer did not constitute a final judgment subject to appeal. It also did not resolve any claim, because all the defendant’s theories arose from the same events, and so was not subject to certification for appeal. The Missouri Court of Appeals dismissed that appeal. The circuit court’s summary judgment for the plaintiff against defendant, and purporting to bind intervenor insurer over intervenor’s objection, was error. The Court of Appeals reversed that summary judgment and remanded the action. 
(Overview summary)
Connie E. Lyda and Mark Northcott vs. Allstate Fire and Casualty Insurance Company and Allstate Vehicle and Property Insurance Company
Missouri Court of Appeals-Western District – WD87901 consolidated with WD87902

Post-conviction

Same argument, same finding, same result 
Ineffective assistance of counsel meant substandard performance resulting in prejudice. As to a guilty plea, prejudice meant a less than knowing and voluntary plea. The motion for relief charged that plea counsel should have argued a motion to suppress better. The movant did not show any clear error because the arguments in the motion for relief and the motion to suppress were the same and the judge ruling on the motion to suppress and the motion for relief were the same. The motion alleged a fourth amendment violation in the search of a barn on property where the movant alleged that he lived, but the circuit court disbelieved the movant and so found no grounds for suppression. That finding found deference on appeal. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
JEFFREY DUANE BROOKE, Appellant v. STATE OF MISSOURI, Respondent
Missouri Court of Appeals-Southern District – SD38980

Rejection of defense negated prejudice 
The elements of ineffective assistance of counsel included prejudice resulting from substandard performance. On a charge of tampering, trial counsel supported the movant’s defense of duress with photographic and expert evidence, so lay witnesses’ observations would have been cumulative. And those witnesses could also have harmed the defense. On those facts, trial counsel’s choice against calling the lay witnesses was a reasonable trial strategy, especially when the movant agreed with it. As to other charges, the defense was that the movant did not participate, which a duress instruction would have contradicted, so choosing against that instruction was sound trial strategy. Sound trial strategy negated substandard performance, and the jury rejected the duress defense for tampering, which negated prejudice as to the instruction. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
KIMBERLY D. RISTON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals-Southern District - SD38918

Public defender not appointed, no abandonment 
Timely filing was an element of any claim for post-conviction relief, and circuit courts had no authority to rule on a motion filed late. Exceptions included abandonment by post-conviction counsel appointed by the circuit court as required, typically a public defender; but not by any other counsel, even a public defender if not appointed. “Ironically, ‘[t]he public defender’s entry of an appearance without an appointment order obviates the need for the motion court to appoint counsel under Rule 29.15(e) because the movant is shown of record as represented by counsel.’” A public defender entered an appearance for the movant without appointment, so the abandonment doctrine did not apply to the movant’s amended motion untimely filed. The circuit court had no authority to rule on the amended motion, only the initial motion, and the initial motion’s claims remained unaddressed. The judgment was therefore not final. “Words matter in the law and the court encourages continued close coordination between the public defender’s office and motion courts on these important issues.” The Missouri Court of Appeals reversed the judgment on the amended motion and remanded the action for a ruling on the initial motion. 
(Overview summary)
Desmond A. Mills, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED113258

Real estate

Condo declarations required arbitration
Grounds for vacating an arbitration award included the absence of an agreement to arbitrate. An agreement to arbitrate consisted of owning condominium property that was subject to declarations requiring arbitration of certain disputes. Those disputes included any matter arising under the declarations, which governed parking spaces, which was the subject of the appellant’s dispute. The circuit court did not err in affirming the arbitration award and denying the appellant’s motion to vacate. 
(Overview summary)
Julia A. Haack as Trustee of the Julie A. Haack Family Trust, Dated March 25, 1999, as Amended and Restated by the Fully Amended and Restated Julie A. Haack Family Trust, Dated September 21, 2013 and Further Amended by Amendments Thereto Dated February 5, 2015 and December 11, 2018 vs. Donald E. Jarvis, as Trustee of the Donald E. Jarvis and Wilma A. Jarvis Revocable Trust
Missouri Court of Appeals-Western District – WD88062

Workers’ compensation

Attorney’s fee lien had to include past medical expenses 
The Labor and Industrial Relations Commission’s determinations of credibility and findings of fact received deference on appellate review, subject to the overwhelming weight of the evidence. The record supported a finding that the respondent employer did not act in bad faith when delivering less than all video surveillance of the claimant so the Commission did not err in denying a remedy. The Commission found that the appellant claimant was not permanently and totally disabled. The claimant did not show that the overwhelming weight of the evidence was against that finding. The employers had to provide the claimants with medical treatment for covered conditions and, when the employers refused such payment, the claimants were entitled to past medical expenses that claimants covered themselves regardless of payment from a collateral source like the claimants’ insurance. The Labor and Industrial Relations Commission erred when it ordered payment of past medical expenses to the claimant’s health care providers instead of the claimant. “[T]he notion that application of an individual’s own insurance does not cost the individual anything is typically contrary to the practical reality of private medical insurance.” And the attorneys who had to litigate medical expenses were due a fee, and a lien to enforce that fee, for that litigation. The Missouri Court of Appeals remanded the action to the Commission to determine the fee due for litigating past medical expenses. 
(Overview summary)
Russell Chick vs. City of Centralia and Treasurer of Missouri as Custodian of the Second Injury Fund
Missouri Court of Appeals-Western District - WD88273

Appellate

Dismissal necessary on appellant’s deficient briefing 
Appellate briefing requirements preserved judicial impartiality. The appellants’ briefs had to include specified components with specified content. Statements of facts had to include references to the record. Point Relied On had to set forth the standard of review, follow the prescribed template, and include a list of authorities. Arguments had to show how the appellant preserved the matter. The appendix had to include, but was limited to, specified documents. After notice of those deficiencies, an opportunity to correct the deficiencies, and an extension of time to make those corrections, the appellant failed to correct all those deficiencies in an amended brief. The Missouri Court of Appeals dismissed the action. 
(Overview summary)
Ruqaiyah I. Hunter, Appellant, vs. Transimpex Translators Interpreters Editors Consultants INC., Employer, and Division of Employment Security, Respondent
Missouri Court of Appeals-Western District – WD88174

Civil

Standing required causation 
To bring any action in circuit court, a party had to have standing, which was a legally protected interest harmed — or at least imminently threatened — by the wrong alleged. The wrong alleged was unwanted texts barred by the federal Telephone Consumer Protection Act but received because of the defendant’s operation of an internal do-not-call list. But the defendant’s operation of that list could not have caused the plaintiff any harm because the plaintiff never asked to be on that list. 
(Overview summary)
Dennis Thompson, Appellant, v. Genesco, Inc., Respondent
Missouri Court of Appeals-Eastern District – ED113775

Commercial

Fraudulent transfers discussed 
The appellant’s motion to amend judgment resulted in the timely issuance of an amended judgment that nullified the initial judgment. A premature notice of appeal was deemed filed when the amended judgment became final. The Missouri Court of Appeals dismissed the appeal as to the original judgment and reviewed the amended judgment. Any contest as to evidence resulted in deference to the circuit court’s findings of fact. In challenging a finding as against the weight of the evidence, any departure from the prescribed analysis rendered the appellant’s arguments useless. Circuit courts could conclude that a transfer in fraud of creditors occurred on a finding that a party either intended to defraud creditors or received property in exchange for less than reasonably equivalent value. The circuit court found both and the appellant buyer challenged only one, leaving an unchallenged basis to affirm the judgment. Fair market value was sufficient to show reasonably equivalent value and the value of encumbrances was not. The circuit court entered judgment for the seller’s creditor and the Court of Appeals affirmed that judgment. 
FREEDOM BANK OF SOUTHERN MISSOURI, Respondent, v. JACKIE ROSS, Appellant, and CHRISTOPHER R. ROSS and SECURITY BANK OF SOUTHWEST MISSOURI, Respondents
Missouri Court of Appeals-Southern District – SD38963 and SD38975

Contracts

Spousal consent did not reach property held in tenancy by the entirety 
Judgments on the pleadings certified for appeal with no just reason for delay, became final 30 days after entry the same as other judgments. Because a judgment on the pleadings issued as a matter of law, appellate review was de novo. All property held in tenancy by the entirety was owned by each spouse indivisibly, so “[n]either spouse, acting alone, can convey the other spouse’s interest,” and was subject to encumbrance only on the consent of both spouses. The defendant surviving spouse did not sign, and was not named in, any document as a borrower of guarantor. A “Spousal Consent” showed only that the defendant surviving spouse had knowledge of a loan that the deceased spouse had guaranteed and did not make the surviving spouse a guarantor of that loan. The circuit court granted judgment on the pleadings for the defendant surviving spouse and the Missouri Court of Appeals affirmed that judgment. 
SHIFT CAPITAL INCOME FUND, LP, Plaintiff-Appellant, v. STANDLEY PLASTICS, INC., et al., Defendants-Respondents
Missouri Court of Appeals-Southern District – SD38802

Breach of good faith found 
The parties’ contract provided that the seller would deliver to buyer a certain amount of soybeans at certain times for a certain price, with scheduled increases in price according to market fluctuations. The purpose of those provisions was to protect both parties from price fluctuations. The contract also provided that the seller’s inability to comply was not a breach of contract if the seller gave a required notice. But all contracts included an implied covenant of good faith and fair dealing that required best efforts at compliance and barred opportunistic dealings. Compliance and breach of those provisions was a matter of both determinations of contract provisions’ meanings and witnesses’ credibility in circuit court. On appeal, the former was subject to de novo review and the latter was due deference. Price fluctuation was, therefore, not an excuse for the seller to charge more; especially when the seller did not give the required notice, alternative sources were available, and the buyer was under duress in having run out of soybeans. The circuit court concluded that the seller had failed to use best efforts at compliance, engaged in opportunistic dealings, and breached the implied covenant of good faith and fair dealing. The Missouri Court of Appeals affirmed that judgment. The contract also provided an award of attorney fees for the prevailing party so the Court of Appeals remanded the action for the circuit court to make that award. 
(Overview summary)
Majestic Milling Company, LLC, Respondent, vs. River Valley AG Exchange, LLC, Appellant
Missouri Court of Appeals-Western District – WD87895

Guaranty enforced 
An indispensable party’s absence was not a defect in subject matter jurisdiction, so failure to preserve that matter in circuit court barred it on appeal. Also, a party to a contract, related — but not subject — to the action in circuit court was not indispensable. Summary judgment was due the movant respondent when the movant established, beyond genuine dispute, facts that supported all the elements of the movant’s claim. The movant’s claim was enforcement of the appellant guarantor’s guaranty. The guaranty and the underlying loan were separate contracts; so a loan provision, protecting the borrower from collection until other sources of collection satisfied a portion of the loan, did not protect the guarantor. 
(Overview summary)
Edward Jones Trust Company and Anna C. Gross, as Co-Trustees of the Lawrence R. Gross and Anna C. Gross Joint Revocable Trust U/A/D December 31, 2019, and as Co-Trustees of the Anna C. Gross Survivor's Trust Dated June 3, 2021, Respondents, vs. Michael E. Wilcox, et al., Appellant
Missouri Court of Appeals-Western District – WD87875

Criminal

Third party searches discussed
On a motion to suppress evidence, the State had the burden of proving that the State obtained the evidence lawfully. Circuit court rulings on motions to suppress were subject to interlocutory appellate review. The standard for reversal was clear error. No warrant was necessary for the State to examine what a third party disclosed to State agents; beyond that limit, a State agent’s further examination constituted a search, so a warrant was necessary. A third party showed certain content of the defendant’s cell phone to a law enforcement officer and the officer’s search of the cell phone beyond that content without a warrant was unlawful. The State raised no exception to the warrant requirement in circuit court and so failed to preserve the good faith exception on appeal. The circuit court granted the motion to suppress and the Missouri Court of Appeals affirmed that ruling. 
(Overview summary)
State of Missouri, Appellant, vs. Robert L. Roth, Respondent
Missouri Court of Appeals-Western District - WD88224

Employment

Attorney fees on appeal awarded 
The Human Rights Act allowed an award of attorney fees to the prevailing plaintiffs and the respondent plaintiff prevailed over the defendant appellants. The appellants filed their notice of appeal three and a half months after the judgment because final, and made no timely filing that appellate courts treat as a motion to file late, so the Missouri Court of Appeals had no jurisdiction over that judgment. The appellants filed their notice of appeal before the circuit court ruled on the respondent’s motion for attorney fees, which constituted a separate judgment in a separate action, so the notice of appeal was not untimely as to that ruling. Market rates did not restrict the hourly rate, while the attorneys’ qualifications and risks taken could raise that amount. Those circumstances also supported the use of a 2x multiplier. The circuit court did not abuse its discretion in declining to exclude hours. Partial success — two out of three claims — led to a substantial judgment and so did not have to reduce the award. “A party cannot litigate tenaciously and then be heard to complain about the time necessarily spent overcoming its vigorous defense.” The plaintiff also demonstrated reasonable litigation expenses on appeal so the Court of Appeals awarded that amount. 
(Overview summary)
Scott Caldwell, Respondent, v. UniFirst Corporation, and Michael D. Seever, II, Appellants
Missouri Court of Appeals-Eastern District – ED113618

Personal injury

Workers’ compensation was the exclusive remedy for mesothelioma 
“To preserve a jury-tried issue for appellate review, a party must include the issue in both a motion for directed verdict at the close of all evidence, if the defendant puts on evidence, and in a motion for” judgment notwithstanding the verdict. A motion for new trial could not substitute for a motion for judgment notwithstanding the verdict. Workers’ compensation was the exclusive remedy for workplace-related illnesses. Enhanced coverage in workers’ compensation insurance policies was an element of the employers’ exclusive remedy defense, and the employer entered such evidence into the record. The elements of that defense did not include paying the premiums, having employees in Missouri, or having an office in Missouri. Whether coverage was effective was a fact question to which a lay witness could testify from experience; the use of experience did not make coverage a matter for expert testimony. No approved instruction was available and the circuit court’s instruction tracked the exclusivity statute, so submitting that instruction was not error. The circuit court entered judgment for the employer and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Roslyn T. Barnes, Appellant, vs. Athene Annuity & Life Assurance Company, et al., Respondent
Missouri Court of Appeals-Western District - WD87843

Post-conviction

No re-litigation of issues decided on appeal 
The movants could not re-litigate in a motion an issue decided on appeal. On appeal, the movant argued that the circuit court erred in denying a continuance because trial counsel did not communicate with the movant but the record did not support that argument. In the motion, the movant charged trial counsel with ineffective assistance for failure to communicate. The circuit court denied relief and the Missouri Court of Appeals affirmed that judgment. 
RODNEY BAKER, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals-Southern District - SD38962

Real estate

Open and notorious possession shown 
The elements of a claim for adverse possession included open and notorious possession of the disputed land, meaning possession that reasonable inquiry discloses. That element had support in evidence of the plaintiffs’ daily use and improvements audible and visible from the defendants’ residence. Because the plaintiffs had possession of the disputed land, the plaintiffs were not liable for trespass. A point relied on that conflated theories for reversal and offered no supporting authority preserved nothing for review. 
(Overview summary)
Denise D. Bourbon, Lee Dearden, and Mary K. Dearden, Appellants, v. Colby A. Benson, Respondent
Missouri Court of Appeals-Eastern District – ED113648

Administrative

No substituting lay opinion for expert opinion
A licensing agency decided license applications under an objective system that assigned numerical scores to questions on the applications. The agency required contracted scorers (“scorers”) to possess qualifications for scoring, making their scores a form of expert opinion. The agency repeatedly emphasized that identical answers merited identical scores. Nevertheless, the scorers assigned differing scores to identical answers (“disputed scores”) on which the agency denied the applications. On review at the Administrative Hearing Commission (“Commission”), the applicant showed what the disputed scores should have been through expert evidence that the agency did not contest. Moreover, the record impeached the qualifications of the agency contractor scorers. The Commission re-determined the disputed scores using neither the method of the scorers nor the applicant’s experts. Instead, the Commission substituted its own lay opinion based on its perception of what the scorers’ subjective intent was: the score most frequently appearing. No evidence supported that method, resulting in an unreasonable and arbitrary decision. The circuit court affirmed the Commission. The Court of Appeals reversed the circuit court's judgment and remanded the action to the circuit, ordering the circuit court to grant the applications.
HIPPOS, LLC, Petitioner-Appellant v. MISSOURI DEPARTMENT OF HEALTH AND SENIOR SERVICES, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD38218

ADR

Arbitration clause’s exclusion applied
The denial of a motion to dismiss was not subject to interlocutory appeal. Challenges to standing were subject to challenge by writ of prohibition. The denial of a motion to compel arbitration was subject to appeal de novo because arbitration was a matter of contract and contractual language was as a matter of contract. The appellant movant bank’s arbitration agreement expressly excluded business accounts like the subject of the party’s litigation. The Missouri Court of Appeals affirmed the denial of the appellant ‘s motion to compel arbitration. 
(Overview summary)
Michael Waller, Respondent, vs. Commerce Bank, et al., Appellants.
Missouri Court of Appeals-Western District – WD87936

Criminal

No motion, no severance 
Incorporation by reference was not sufficient for a preservation statement or any other part of an argument section. Appellate courts generally did not review matters not raised in circuit court, including severance of charges not the subject of a motion in circuit court. Unpreserved but plain errors affecting substantial rights were “sparingly” subject to review in appellate courts’ discretion. Acquiescence to facts that enhanced the sentence substituted for a jury finding on those facts so the enhanced sentence did not constitute error. The Missouri Court of Appeals exercised its discretion against performing plain error review. 
(Overview summary)
State of Missouri, Respondent, v. Anthony M. Brewer, Appellant.
Missouri Court of Appeals-Eastern District – ED113149

Crime Victims’ Compensation Fund assessment adjusted
Unpreserved matters were subject to review for plain error. Even if plain error occurred, appellate courts had discretion whether to review it. Plain error meant an error that was obvious, affected a substantial right, and determined the outcome. Acquittal on one charge negated the outcome-determinative character on other charges of admitting prior misconduct evidence. A sentence in excess of the maximum authorized by law constituted plain error. The consequences of any offense depended on the statutes in effect at the time of the offense. At the time of the defendant’s offenses, sentences could include payments to the Crime Victims’ Compensation Fund for some offenses, but not for any class E felony, because that classification did not exist. When no discretion was involved in the sentence, no remand was necessary, and appellate courts could enter the judgment that the circuit court should have entered. The Missouri Court of Appeals entered judgment sentencing the defendant as the circuit court did, but without payment to the fund for the class E felony. 
(Overview summary)
State of Missouri, Respondent, v. James McGregory, Appellant.
Missouri Court of Appeals-Eastern District – ED113080

Family

Designation of address was necessary 
A finding on the child’s best interest was necessary to determine which school the child should attend and written findings of fact were required on that matter. But no motion to amend was necessary to preserve that matter when the appellate theory was the absence of any substantial evidence in support. Substantial evidence supporting the ruling included the parties’ proximity and work schedules, and the child’s close relations with half-siblings who all attended the chosen school. The appellant’s agreement to pay private tuition at another school constituted substantial evidence that the appellant should pay private tuition at the chosen school. The circuit court had to designate a parent’s residence as the child’s address for education and mailing purposes, and base that determination on the child’s best interests, but failed to do so. The Missouri Court of Appeals remanded the action for the required findings and designation, and otherwise affirmed the judgment. 
(Overview summary)
Wade Curtis Brandl, Individually and as Next Friend for H.C.B., Appellant, vs. Adria Sophia Anderson, Respondent.
Missouri Court of Appeals-Western District - WD88111

Move out of state supported motion to modify 
The elements of a motion to modify child custody included a change in the circumstances existing when the previous custody order issued. To change from joint to sole, the change had to be substantial, but not when the change was from sole to joint. The movant met that standard by alleging that one parent was moving out of state, so the circuit court erred in dismissing the motion. The Missouri Court of Appeals vacated the judgment and remanded the action to determine the child’s best interests. 
(Overview summary)
David Lee Couzens, Jr., Respondent, vs. Devyn Lea Post, Appellant.
Missouri Court of Appeals-Western District – WD88021

Child support calculated on appeal 
Stock options constituted contingent benefits subject to distribution as marital property. Their contingent nature notwithstanding, the appellant did not show any abuse of discretion in the property division, because the judgment showed that circuit court carefully considered all relevant factors including risk. The appellant argued that no substantial evidence supported the date at which the circuit court calculated a pension’s value but the appellant ignored evidence that favored that date, so the appellant did not show error. The face of the judgment showed that the circuit court’s calculation of child support rested on a miscalculation of each party’s overnights, so the Missouri Court of Appeals estimated the number of overnights due the appellant, and the amount of child support due on that number, and entered judgment accordingly. 
(Overview summary)
In RE the Marriage of: Kelly Ann Bennett, Respondent, vs. Travis Warren Bennett, Appellant.
Missouri Court of Appeals-Western District – WD87984

Orders of protection

Lifetime renewal supported 
The elements of an ex parte order of protection included an "immediate and present” danger, while that language was absent from the elements of a full order of protection. Grounds for issuance — and therefore, presumably, renewal — of a full order of protection included domestic violence, stalking, sexual assault, or harassment. Harassment did not appear in the judgment, but the judgment included findings on the other grounds. Those grounds had support in evidence of the appellant’s physical threats to the respondent and the respondent’s family, and violations of previous orders; and the exhibits that the appellant omitted from the legal file presumably supported the judgment as well. Lifetime renewal required written findings of fact but the appellant failed to preserve that issue because the appellant failed to file a motion to amend. The Missouri Court of Appeals affirmed the judgment renewing the full order for the appellant’s lifetime. 
(Overview summary)
L.J.F., Respondent, vs. J.F.G., Appellant.
Missouri Court of Appeals-Western District – WD87987

Personal injury

Judgment on police shooting affirmed in part, reversed in part
Appellate courts addressed arguments as to the finality of judgments, whether preserved or not preserved, when the entry of a final and appealable judgment was the basis of their jurisdiction. In actions for wrongful death, orders relating to the enforcement of judgments were necessary, but did not have to be part of any judgment. The petition prayed for punitive damages but the plaintiffs failed to submit that matter to the jury, which “irrevocably abandoned” the matter, so the judgment did not have to address punitive damages. The plaintiffs’ judgment, omitting those unnecessary matters, was nonetheless final. Official immunity barred any liability in a public employee for conduct undertaken in the discretionary exercise of official duties absent an intention to harm the person actually harmed. Even recklessness did not substitute for intention and only intentional torts were subject to transferred intent. The plaintiff alleged that the appellant defendant law enforcement officer intended to injure the plaintiff passenger in a fleeing vehicle, but that allegation had no support in any evidence, and the defendant’s testimony refuted that allegation. The circuit court erred in denying the defendant’s motion for judgment notwithstanding the verdict for failure to make a submissible case. That conclusion mooted the defendant’s claims of error in the instructions’ definitions of malice. Intentional torts were not subject to the official immunity defense but were subject to other defenses. Criminal instructions on self-defense were inapplicable, not submitted, and the circuit court’s failure to submit sua sponte was not plain error. Reasonableness as to the defendant law enforcement officer shooting of the plaintiffs’ decedent driver was a question of law only on undisputed facts and was otherwise a jury question. Recorded exhibits, expert testimony explaining the synchronizing of audio and video, and an arrow to distinguish defendant, was necessary to help lay persons understand their import; and the defendant showed no prejudice. The defendant showed no prejudice from the definition of malice as to the driver because they only increased the plaintiffs’ burden of proof. The Missouri Court of Appeals affirmed the judgment, except as to the passenger, as to whom the Court of Appeals entered judgment for the defendant. 
(Overview summary)
Randi McGaugh, et al., Respondents, vs. Tyler Naudet, et al., Appellant.
Missouri Court of Appeals-Western District – WD87542 consolidated with WD87576

Administrative

Practice supported firing
Agency employees were subject to employers’ standards, and to discipline in reasonable accord with the gravity of a breach of such standards. Agency decisions carried a presumption of correctness, and were subject to judicial review in any court on the whole record, not just the evidence supporting the decision. The respondent fire district’s procedure constituted due process. The record supported a finding that the appellant employee violated a supervisor’s safety directive, creating an unjustified danger to other employees and property owners, and an environmental hazard. The record also supported a finding that the employee changed another employee’s leave to a taxpayer-funded category in violation of agency practice. Clear notice of standards was “generally” due “[but] these notice requirements do not apply ‘where the conduct was clearly wrong.’” The record further showed that uncharged conduct was not among the grounds for the agency’s termination of the employee. Courts also deferred to the weight that the agency assigned to the evidence and the discretion that the employer exercised on the facts. The Missouri Court of Appeals-Western District reversed the circuit court, affirmed the agency, and remanded the action to the circuit court to reinstate the agency decision. 
(Overview summary)
David Matusik, Respondent, vs. Lake Ozark Fire Protection District, Appellant.
Missouri Court of Appeals-Western District – WD88004

Administrative remedies not exhausted 
The elements of declaratory judgment included the absence of an adequate remedy at law, like an administrative hearing, on which the appellant’s petition for judicial review was still pending. An exception when notice was lacking did not apply because the plaintiff received notice, which cut off actions in circuit court, and acted on it. Another exception applied when the only question was whether an ordinance conflicted with a statutory provision, or a statute conflicted with a constitutional provision, but the presence of factual disputes negated that exception. The circuit court dismissed the action and the Missouri Court of Appeals-Eastern District affirmed that judgment. 
(Overview summary)
QuikTrip Corporation, Appellant, v. City of St. Charles, Missouri, Jennifer O'Connor, and Zachary Tusinger, Respondents.
Missouri Court of Appeals-Eastern District – ED113624

Appellate

No dismissal, no appeal
On a motion to compel arbitration, the procedure in circuit court and appellate courts depended on the presence of factual disputes. When no party disputed the existence of an arbitration agreement, no evidentiary hearing was necessary and appellate review was de novo. When a party contested the existence of an arbitration agreement, an evidentiary hearing was necessary, and review was for abuse of discretion. The appellant cited the wrong standard of review, and the right standard of review could engage any one or more of four theories, so the Missouri Court of Appeals-Eastern District dismissed that point relied on. The existence of an arbitration agreement was in dispute but the evidentiary hearing required no live testimony, only sufficient other materials for resolution, and the appellant showed none. The appellant offered no live testimony so the Court of Appeals did not hear the appellant’s challenge to the absence of live testimony. The denial of a motion to dismiss was not part of a final judgment and did not constitute any other ruling subject to appeal. The Court of Appeals dismissed the appeal. 
(Overview summary)
Michael Harris, et al., Respondents, v. Starbucks Corporation, Appellant.
Missouri Court of Appeals-Eastern District – ED113748

No review for invited error 
Appellate courts did not review invited error, including the admission of testimony that the defendant elicited on cross-examination. The Missouri Court of Appeals-Eastern District affirmed the conviction, except as to the written sentence’s departure from the spoken sentence, for which the circuit court remanded to correct by order nunc pro tunc. 
(Overview summary)
State of Missouri, Respondent, v. Christopher J. Whitbey, Appellant.
Missouri Court of Appeals-Eastern District – ED113286

Civil

Mistrial preserved
A treating physician could offer expert testimony. Expert testimony was admissible on a foundation that included a reliable basis, which the treating physician offered, so the circuit court did not abuse its discretion in admitting the testimony. Context determined whether closing arguments misstated the law, and the plaintiff’s discussion of percentages of fault occurred in the context of the verdict director. And correct instructions negated any prejudice. Parties waived mistrial when they continued with the trial inconsistently with their objection, which did not include seeking a mistrial soon after submission to the jury. The defendant did not show prejudice from a limited reference to a matter partially not in evidence. Preservation of instructional error required “a specific objection” “stating distinctly the matter objected to and the grounds of the objection.” That applied to the rejection of a proffered instruction and a motion for new trial was no substitute. 
(Overview summary)
Terence Marks, Respondent, v. City of St. Louis, Appellant.
Missouri Court of Appeals-Eastern District – ED113479

Consumer

No sovereign immunity for selling patient data 
Motions to dismiss for failure to state a claim looked to whether allegations, if true, described any claim for relief. The circuit court did not err in excluding matters outside the petition from its consideration. Sovereign immunity negated claims in that it protected municipalities as to governmental functions but not proprietary functions. The distinction depended on whether the activity alleged to have caused the injury benefited either the general population or profited the municipality. The plaintiffs’ “copiously detailed allegations” described a proprietary function: not health care generally, specifically the secret sale of patients’ personalized data. Under those allegations, sovereign immunity would not protect the hospital and its governing body. The purchase of liability could waive sovereign immunity under either of two statutes, so the circuit court erred in failing to apply one of those statutes, and the allegations described a waiver of sovereign immunity. The public duty doctrine protected municipal employees who in the exercise of duties owed to the general public but not duties specific to the plaintiff, which is what the plaintiffs alleged, so the public duty doctrine would not apply to the facts alleged. Statutes imposing civil liability for violation of criminal statutes did not apply to the municipality, its hospital, and its board, because those entities were not subject to criminal liability. The Missouri Court of Appeals-Western District affirmed the judgment of dismissal as to those claims, reversed the judgment as to the remaining claims, and remanded the action. 
(Overview Summary) 
John Doe, Jane Doe, Jan Doe, Janet Doe, and Judy Doe, Individually and On Behalf of all Others Similarly Situated, Appellants, vs. Meritas Health Corporation and Board of Trustees of North Kansas City Hospital, Respondents. 
Missouri Court of Appeals-Western District – WD87830

Criminal

No plain error review for instruction’s definition of assault
The elements of resisting arrest included at least an attempted stop and a reasonable person’s understanding that an attempted arrest of defendant was in progress. Defendant’s stated desire to elude the law enforcement and law enforcement’s statement “Police, don’t move,” were sufficient, and other circumstances added to the State’s case. Using an approved instruction was never error. The criminal instruction for assault used a civil definition that resembled assault in the fourth degree, while the jury found defendant guilty of assault in the third degree. Neither clear error nor manifest injustice occurred and the Court of Appeals declined plain error review on that point. The Missouri Court of Appeals-Southern District affirmed the convictions. 
STATE OF MISSOURI, Plaintiff-Respondent v. ANGELA KAY FURTADO, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38810

Retaliation not shown 
The parties’ agreement rendered moot the defendant’s earlier motion for continuance and the defendant failed to preserve the grounds for a later motion for continuance by failing to raise it in circuit court. A similarly situated but unstruck juror supported a Batson objection to a peremptory strike and negated clear error. “To prevail on a claim that the trial court improperly increased his sentence in retaliation for exercising his constitutional right to trial, [defendant had to] show not only that the court considered his decision to proceed to trial, but also that it was the “determinative factor” in the sentence imposed.” That did not describe the circuit court’s reference to pre-trial plea bargaining when weighed with other significant factors relevant to sentencing. The Missouri Court of Appeals-Eastern District affirmed the conviction. 
(Overview summary)
State of Missouri, Respondent, v. Stephen Andrew Eagleton, Appellant
Missouri Court of Appeals-Eastern District - ED113204

Family

No final judgment without property distribution
Appellate courts always examine their own jurisdiction. Appellate jurisdiction included final judgments, meaning judgments that ruled on all issues as to all parties. In actions for dissolution of marriage, circuit courts had to distribute property. The earlier judgment distributed respective dollar amounts of property, but not by item, so the earlier judgment was not final. Therefore, earlier judgment did not start the time by which the circuit court lost authority over the action, and the later judgment was timely. The later judgment was final, and unchallenged on appeal, so the Missouri Court of Appeals-Eastern District affirmed the later judgment. 
(Overview summary)
Kyle Wagner, Appellant, v. Tammy Wagner, Respondent.
Missouri Court of Appeals-Eastern District - ED113807

Real estate

Quiet title judgment needed better descriptions 
The elements of adverse possession included exclusive possession, so whether a trustee farmed land for the trust or for himself individually was relevant, and the circuit court did not err in allowing cross-examination on that matter. On the exclusion of evidence, an offer of proof was necessary to preserve the matters, even if the matter was subject to a motion in limine, because motions in limine resulted in interlocutory orders. And, without an offer of proof, the letters were not part of the record on appeal, and the appellant did not include them. Affirmative converse instructions were appropriate for verdict directors that omitted an element of the claim. The verdict director and a converse instruction already covered the element addressed in a proffered affirmative converse instruction so the circuit court did not err in rejecting the proffered instruction. Judgment determining title to real estate had to describe their subject matter with enough certainty for finality and recording. The parties’ description of the subject tracts was sufficient for finality but not for recording. The Missouri Court of Appeals-Western District remanded the judgment to circuit court for inclusion of a sufficient description any further proceedings necessary for that purpose. 
(Overview summary)
Kevin Rosenbohm, Trustee of the Kevin and Michele Rosenbohm Family Trust Dated July 1, 2011 and Matt Rosenbohm and Nick Rosenbohm, Respondents, vs. Gregory Stiens, and Gregory Stiens, Trustee of the Anthony Stiens Trust, Appellants. 
Missouri Court of Appeals-Western District – WD87720 consolidated with WD87756

Civil

Default judgment set aside 
The courts favored the setting aside of default judgments, and appellate courts were more likely to a affirm a ruling that granted a motion to set aside than a ruling that denied a motion to set aside. The circuit court could set aside default judgments on the showing of two elements: good cause and a meritorious defense. A meritorious defense meant any substantive matter. Appellant failed to challenge one of the defenses ruled meritorious, leaving that defense in support of that element. Good cause meant a mental state less than recklessness and included delays in a good faith attempt to secure counsel. The circuit court granted the motion to set aside the default judgment, and the Missouri Court of Appeals affirmed that ruling. Whether a preliminary writ stopped the circuit court from setting aside the default judgment on its own motion also was moot. 
CITY OF OSAGE BEACH, Appellant v. DUENKE REAL ESTATE HOLDINGS, LLC; TAN-TAR-A ESTATES, LLC, and TAN-TAR-A ESTATES COMMUNITY ASSOCIATION, INC., Respondents
Missouri Court of Appeals-Southern District – SD39033

Appeal extended time for revival of judgment 
The date on which the circuit court filed a final judgment marked the end of circuit court authority in the action, and an appeal altered that result only as set forth in the appellate court’s mandate, with the law of the case foreclosing litigation of any other matter. The same date also started the time for filing a motion for revival of judgment. That time applied differently to two defendants in the original judgment because the Missouri Court of Appeals eventually ruled differently as to the two defendants. As to the first defendant, the Court of Appeals affirmed the judgment, so the circuit court had no authority to enter any judgment on remand as to the first defendant, and its attempt to do so was void. As to the second defendant, the Court of Appeals reversed and remanded, so the circuit court had authority to file a judgment on remand. Two different deadlines for revival thus applied to the two defendants: from the original judgment for the first defendant, and from the judgment on remand for the second defendant. The motion for revival of judgment was timely as to the second defendant and untimely as to the first defendant. The circuit court erred in granting the motion for revival as to first defendant, so the Court of Appeals reversed that ruling and remanded the action for an order of revival against the second defendant only. 
IN THE ESTATE OF: IRENE LAMBUR a/k/a VERNA IRENE LAMBUR, Deceased, JOYCE BAXTER, individually and as Personal Representative of the Estate of Irene Lambur, and RUTH BECKER, ROLAND PAYNE, and JOHN PAYNE, Petitioners-Respondents v ANNA STIDHAM and MATT STIDHAM, Respondents-Appellants
Missouri Court of Appeals-Southern District – SD39143

Missouri law applied to Missouri assets 
Bank deposits were subject to the law of the state where they were located, regardless of the funds’ source, and the decedents’ property was subject to the law of the state where they resided. For the decedent and the decedent’s accounts, both were in Missouri. Deposits were presumed held as a tenancy by the entirety subject to rebuttal by evidence that was “clear, strong, unequivocal, and so definite and positive[.]” That described the contract for the decedent’s account, which stated that the account was held as a joint tenancy with right of survivorship. The decedents’ property transferred to a joint tenancy with right of survivorship was subject to recovery in an action for accounting. 
(Overview summary)
Estate of Etsuko Toguri, by and through its trustee and executor, Kathleen Miki Toguri, Appellant/Cross-Respondent, v. Estate of Osvaldo Pierotti, by and through its personal representative, Anna Marie Pierotti and Anna Marie Pierotti, an individual, Respondent/Cross-Appellant.
Missouri Court of Appeals-Eastern District - ED113234

Criminal

Miranda rights waived 
Detectives’ statements encouraging the defendant to be honest, and the defendant’s fatigue, did not constitute coercion that negated a knowing and intelligent waiver of Miranda rights. The variance of the written sentence of 999 years from the spoken sentence of life in prison required a remand for correction. 
(Overview summary)
State of Missouri, Respondent vs. Jessie Randall Williams, Appellant
Missouri Court of Appeals-Western District – WD87393

Body cam recording and testimony were enough 
The elements of assault in the second degree included recklessness. The victims’ testimony alone was sufficient to show that the defendant acted purposely or knowingly, which was more than enough to find recklessness, so it was irrelevant whether body cam recordings were clear enough to support the charges. And the recordings corroborated the testimony and supported the verdict. The Missouri Court of Appeals affirmed the convictions. 
STATE OF MISSOURI, Respondent v. RUSSELL KENNETH CLANCY, Appellant 
Missouri Court of Appeals-Southern District – SD38782

Solicitation defined 
The elements of enticement of a child as charged included soliciting sexual contact, which included a demand, and which eventual coercion did not negate. Evidence of an uncharged prior bad act was subject to exclusion, but evidence that the defendant tickled the victim’s sister did not constitute evidence of an uncharged prior bad act, so the Missouri Court Appeals declined plain error review of that evidence’s admission. 
(Overview summary)
State of Missouri, Respondent, v. Richard E. McCoy, Appellant.
Missouri Court of Appeals-Eastern District - ED113082

Must seek to change venue and judge simultaneously
In any criminal action, when defendant sought a change of judge and a change of venue, defendant had to file a motion for both simultaneously within a specified time. The addition of more charges and a new case number did not re-start that time. Defendant filed a motion for change of judge too late and a judge granted it. The Court of Appeals made permanent its writ of prohibition, barring the transferee judge from doing anything other than transferring the action back to the previous judge.
STATE OF MISSOURI ex rel. CATHERINE HANAWAY, Relator v. THE HONORABLE JAMES R. BICKEL, ET AL., Respondents
Missouri Court of Appeals, Southern District - SD39245

DWI

Intoxication shown, driving while suspended not shown 
To show possession, the State did not have to enter the item possessed into evidence; testimony or a video recording was sufficient. No notice or opportunity to dispose of such contraband was necessary to support a conviction for possessing an item forbidden in jail. Physical debilitation showed that the defendant was intoxicated by prescription medications and other substances. The elements of driving while suspended included driving with criminal negligence as to whether defendant’s license was suspended. To be criminally negligent was to be unaware “of a substantial and unjustifiable risk that circumstances exist or a result will follow, and such failure constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation [.]” The State did not show that the defendant was criminally negligent as to the consequences of her traffic violation record because the State did not offer any evidence of that record. 
(Overview summary)
State of Missouri, Respondent, vs. Jeri Sue Lasker, Appellant.
Missouri Court of Appeals-Western District – WD88083

Employment

Retaliation alleged without underlying discrimination 
To state a claim, the plaintiffs had to set forth more than “[t]hreadbare recitals of the elements of a cause of action, supported only by conclusory statements [;]” they had to allege facts that described a claim. The Human Rights Act created claims that included discrimination in employment based on disability, and for retaliation against complaining about such discrimination. Disability meant “substantial impairment to a major life activity” related to employment. Plaintiff described temporary “mere difficulties” in breathing and walking, and failed to allege severe and pervasive conduct by her employer, so the circuit court did not err in dismissing the discrimination claim and affirmed that ruling. The circuit court also did not abuse its discretion by implicitly denying leave to amend. Retaliation was actionable even when the alleged discrimination was not. Allegations that adverse actions followed discrimination complaints raised an inference of retaliation. The Missouri Court of Appeals vacated the dismissal of the retaliation claim and remanded the action. 
(Overview summary)
Kathryn Torre-Stewart, Appellant/Plaintiff, v. The Washington University-St. Louis, Respondent/Defendant.
Missouri Court of Appeals-Eastern District - ED113602

Evidence

Elements of municipal offense not inferred 
Drivers were subject to enhanced sentences for earlier intoxication-related offenses. The driver’s earlier municipal conviction was for “driving while intoxicated.” That recitation was insufficient to support an inference that the elements of the municipal offense included driving, as currently defined. “The offense might have been for physically driving or operating a vehicle while intoxicated, but it also might have been for being in physical control of a vehicle while intoxicated. While the former conduct would qualify the 2002 offense [for enhanced sentencing], the latter would not[,]” so evidence of the municipal ordinance’s language or “some other evidence to show the conduct involved in the offense” was necessary. The Supreme Court of Missouri vacated the judgment and remanded the action for re-sentencing. 
(Overview summary)
State of Missouri, Respondent, vs. James Willis Peters, Appellant.
Supreme Court of Missouri – SC101218

Exclusion of expert testimony reversed 
On a motion for summary judgment, supporting evidence had to be admissible at trial. To be admissible at trial, expert testimony required a foundation that included showing that the testimony was “the product of reliable principles and methods . . . and that the expert reliably applied those principles and methods to the case [,]” which required more than “the ipse dixit of the expert.” The circuit court did not err in excluding the expert testimony and entering summary judgment for the defendant. 
(Overview summary)
Christopher Hanshaw, Appellant, vs. Crown Equipment Corp., et al., Respondents.
Supreme Court of Missouri – SC101091

Family

Grandparent relationship preserved in adoption 
In an action for adoption, circuit courts did not determine custody, they determined whether creating a parent/child relationship was in the child’s best interest. The grandparent appellant did not show that the evidence weighed against that element, in that evidence of a threat to the appellant’s relationship with the child did not outweigh the respondent’s evidence of respect for that relationship. A ruling that preserved that relationship was the relief that the appellant requested, so the appellant could not challenge that ruling on appeal. 
(Overview summary)
In re the Adoption of: K.L.C.B., N/K/A K.L.C.S.; D.B., Appellant, vs. J.A.S., Respondent
Missouri Court of Appeals-Western District – WD88045

Maintenance denied 
The appellant’s points relied on had to be concise and phrased in a summary fashion, with a list of authorities, and the related argument had to link those authorities to the facts of the appellant’s case. Failure to comply with those requirements barred appellate review because appellate review would require an appellate court to build an argument for appellant, which no appellate court would do. The purpose of maintenance was to bridge the gap between a receiving spouse’s income and reasonable expenses subject to the paying spouse’s ability to pay. Awards of maintenance were discretionary while the factors determining the amount were mandatory. In determining a maintenance, circuit courts had to avoid counting the paying spouse’s resources already awarded in the property division. The circuit court did so by separating a business’s return on investment from the amounts that the business paid that spouse. But even including return on investment, the circuit court found a negative cash flow that supported a denial of maintenance. 
(Overview summary)
In re the Marriage of: Stacey L. Noble, Appellant, vs. Bradford R. Noble, Respondent.
Missouri Court of Appeals-Western District – WD87485

No action for third-party visitation 
Visitation with, and custody of, a child were available to a person unrelated to the child by blood or marriage in a pending action for divorce, separation, or paternity, but not by independent action. The judgment awarding custody when outside a pending action in which custody was not at issue aggrieved the appellant adoptive parent, so the appellant had standing to appeal. The Supreme Court of Missouri entered judgment for the appellant. 
(Overview summary)
In re the matter of: A.L.P. and S.H.P., minors; Alicia Smith, Respondent, vs. Lora Martinez, Appellant. 
Supreme Court of Missouri - SC101121

Post-conviction

No abandonment hearing was necessary 
The face of the pleadings showed that post-conviction counsel applied the wrong version of the rule setting the deadline for filing an amended motion, resulting in late filing without the movant’s fault, so no remand for a hearing on abandonment was necessary. On claims that trial counsel was ineffective for failure to call witnesses, movants had to show that “(1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness’s testimony would have produced a viable defense.” On the first element, the circuit court found against the movant, and appellate courts defer to that finding, and the movant offered no evidence to support the other elements. 
(Overview summary)
Rodger Sisemore, Appellant vs. State of Missouri, Respondent.
Missouri Court of Appeals-Western District – WD87891

Not pursuing informant was a reasonable trial strategy 
Trial counsel’s choice of witnesses was virtually unchallengeable. When the movants charged that the counsel’s conduct constituted ineffective assistance of counsel, showing a reasonable strategy negated that charge. Reasonable trial strategy included choices that “avoid highlighting” “potentially unfavorable evidence.” That described trial counsel’s choice against pursuing the confidential informant who participated in one of the movant’s offenses. The movant also failed to allege how the confidential informant’s testimony would have helped. 
ALPHONSE AVILA, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals-Southern District – SD38960

Folding knife constituted a deadly weapon 
The elements of a claim for ineffective assistance of counsel included substandard performance and resulting prejudice. On direct appeal, the Missouri Court of Appeals found that the exclusion of evidence did not prejudice the movant. That finding negated the prejudice element of ineffective assistance. Voir dire showed that brief mentions of previous convictions did not prejudice the movant. Choosing self-defense of imperfect self-defense was a sound trial strategy that negated substandard performance. The evidence was sufficient to show that the movant’s folding pocket knife was a deadly weapon, so neither trial counsel nor appellate counsel were ineffective for arguing otherwise. The verdict director did not cross-reference the self-defense instruction, but the record negated any prejudice. The self-defense instruction was sufficient without no-retreat language because the evidence did not call for a retreat. Choosing to submit no lesser-included offense was sound trial strategy. The record showed previous convictions that supported sentencing the movant as a persistent assault offender despite legislative changes to the criminal code. Absent any prejudice, there could be no cumulative prejudice, even if the movant had preserved that matter. The Court of Appeals affirmed the convictions. 
BRADLEY DOUGLAS COOK, Appellant v. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals-Southern District – SD38718

Real estate

Variance from historic district standard granted 
The appellant agency’s decisions were subject to review in circuit court. The circuit court could hear additional “evidence of alleged irregularities in procedure or of unfairness by the agency [.]” Judgments were subject to appeal, but the appellate court again reviewed the agency decision with the additional evidence and not the judgment. The defendant historic district’s ordinances included construction standards and variances from those standards. The elements of a variance included that, in the absence of a variance, the owner could not put the property to a reasonable beneficial use and could not earn a reasonable return on their investment. The respondent property owner carried that burden by showing that the property was already operating at a loss, had suffered damage, and required repairs to prevent further damage. The additional evidence also supported reversal of the denial as arbitrary and capricious. 
(Overview Summary)
Elevi Holdings, LLC, Respondent, v. City of St. Louis, et al., Appellants.
Missouri Court of Appeals-Eastern District - ED113528

Appellate

Multifarious point dismissed 
Appellate courts would not guess at an appellant’s claim because the appellate court might get it wrong and, in constructing an argument for an appellant, the appellate court would inevitably become an advocate for the appellant. Appellate rules required the appellants to plead each claim in a separate point relied on, with one challenged ruling and one theory of reversal per point. The appellant challenged multiple rulings on both evidentiary and legal theories. The appellant also failed to set forth the standard of review, arrange his argument in the same order as his point relied on, follow the required analysis for the claims, and “tie his multiple allegations of trial court error to the facts in this case.” The Missouri Court of Appeals dismissed the appeal. 
In Re the Marriage of: HEIDI JO CLANTON, Petitioner-Respondent v. DANIEL PAUL CLANTON, Respondent-Appellant
Missouri Court of Appeals-Southern District – SD38889

No appeal from probation revocation 
“Missouri Supreme Court rules of criminal procedure provide the rules of civil procedure apply to [probation] revocation hearings” as part of the criminal action. Appeals were possible only as authorized by law, including by final judgment. Final judgment did not include the revocation of probation. Review was by petition for an extraordinary writ. The Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
State of Missouri, Respondent, v. Jan Kawa, Appellant.
Missouri Court of Appeals-Eastern District – ED113752

Implicit finality explained 
Appeals were possible only as authorized by law, including by final judgment, meaning a ruling that disposed of all theories as to all parties. That included a ruling implicitly final, meaning that the ruling on less than all counts “necessarily carries with it a finding upon other counts [.]” That described a summary judgment on the petition. The petition set forth three counts, each under a different theory, but all seeking recovery for one injury. For any one injury, there could be only one recovery, so summary judgment for plaintiff on one count implied denial on the other two. For that reason, the Missouri Court of Appeals had jurisdiction to review the judgment. But defendant appellant failed to comply with rules governing appellant’s brief, including the jurisdictional statement, statement of facts, references to the record, points relied on, authorities, standard of review, and argument. Such failure made appellate review impossible without constructing an argument for the appellant, which appellate courts will not do, so the Court of Appeals dismissed the appeal. 
(Overview summary)
Concrete Coring Company of North America, Inc., Halcyon, LLC, and Howard H. Hall III, Appellants, v. American Contractors Indemnity Company, Respondent.
Missouri Court of Appeals-Eastern District – ED113390

Criminal

Trespass and harassment convictions affirmed 
Denial of a motion to dismiss was subject to review for abuse of discretion. The constitutional provision that guaranteed open courts protected claims from arbitrary or unreasonable restrictions. The defendant refused to comply with the local rule that barred recording devices, so barring the defendant from the courthouse for 24 hours was not irrational. Denial of a motion for acquittal was subject to review for whether reasonable fact-finder could have found the defendant guilty beyond a reasonable doubt. The elements of harassment in the second-degree included an intent to cause emotional distress, meaning greater distress than usual in context, even if unsuccessful. The defendant’s visit to the circuit court’s chief marshal, at the marshal’s personal residence and with no business purpose, implied that intent and the record showed that the chief marshal’s wife suffered such distress. 
(Overview summary)
State of Missouri vs. Kendall Wayne Crockett
Missouri Court of Appeals-Western District – WD87758

No plain error review for omission of definition 
An in-court identification of the defendant as the perpetrator was not necessary when other evidence made that connection and, even if it were, a witness other than the victim identified the defendant in court. The instructions submitted to the jury increased the State’s burden by requiring the State to show that the victim could not consent due to youth and that the defendant knew of that inability, which the State showed with evidence that included the 35-year age difference between the victim and the defendant, and the defendant’s attempts to keep their relationship secret. That evidence also established the victim’s inability to consent, negating any manifest injustice or miscarriage of justice from the clear and obvious error of omitting a definition for consent. “Where a verdict director effectively omits an essential element of the offense, such an instruction rises to the level of plain error if the evidence in the case fails to establish the existence of the omitted element ‘beyond serious dispute.’” The Missouri Court of Appeals declined plain error review of the omission and affirmed the conviction. 
STATE OF MISSOURI, Respondent v. JEFFREY LEE WALLER, Appellant
Missouri Court of Appeals-Southern District – SD38562

Orders of protection

Notice was enough for conviction 
The elements of violating an order of protection, class A misdemeanor included notice of the full order of protection, which included actual notice, even without service. The State satisfied that element with proof that the defendant respondent was present at the trial at which the circuit court granted the full order, as that order showed, and by the defendant’s earlier violations and pleas of guilty to charges of violating the order. The Missouri Court of Appeals affirmed the conviction. 
(Overview summary)
State of Missouri, Respondent, vs. Gerald R. Nytes, Appellant.
Missouri Court of Appeals-Eastern District – ED113261

Criminal

Victim inconsistencies resolved in deliberation 
The elements of plain error included an obvious error that was outcome-determinative. No witness, even an expert, could testify to another witness’s credibility. The State’s expert testified that physical evidence supported the victim’s description of the events alleged, and the circuit court did not intervene sua sponte. That testimony did not constitute a comment on the victim’s credibility and defense counsel used it to strategic advantage. Those facts did not describe plain error so the Missouri Court of Appeals declined plain error review. “[T]he testimony of young victims about sensitive matters commonly contains some variations, contradictions, or lapses in memory [that] are matters for the fact-finder to resolve.” The jury’s questions during deliberation showed that such resolution occurred. The Court of Appeals affirmed the convictions. 
STATE OF MISSOURI, Plaintiff-Respondent v. CEDRIC TERRIL PACE, Respondent-Appellant 
Missouri Court of Appeals-Southern District – SD38716

Family

Appellant’s brief abandoned theories 
The appellant challenged the circuit court’s ruling on the respondent’s income as against the weight of the evidence but failed to include the evidence supporting that finding. The appellant challenged the circuit court’s ruling on child support as a misapplication of the law requiring a downward adjustment for visitation, but no downward adjustment was required when, as here, the appellant did not exercise visitation. The appellant challenged the circuit court’s ruling denying an abatement of child support, alleging that the circuit court excluded supporting evidence, but the record refuted that allegation. Omitting a preservation statement also abandoned review for all but plain error. Plain error’s elements included an obviously erroneous circuit court ruling that resulted in a manifest injustice or miscarriage of justice. The circuit court’s findings favoring the appellant did not support the award but the appellant did not show a manifest injustice or miscarriage of justice. The appellant challenged the circuit court’s ruling on attorney fees as an abuse of discretion but could not show a manifest injustice or miscarriage of justice, especially having omitted the transcript.
(Overview summary) 
M.D.M, Appellant, v. A.W.S., Respondent 
Missouri Court of Appeals-Eastern District - ED113141

Post-conviction

No new claim on appeal 
The movant claimed ineffective assistance of plea counsel. The motion alleged that trial counsel said that movant would be eligible for long-term treatment. On appeal, the movant alleged that plea counsel promised that the movant would receive long-term treatment. The latter claim did not preserve the former claim, but the Missouri Court of Appeals ruled on the appeal anyway. The record refuted that claim by showing that the colloquy at the plea hearing included repeated explanations of why the movant was not eligible for long-term treatment. The circuit court did not err in denying relief, and the Court of Appeals affirmed that judgment. 
DIECKON T. CARDIN, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals-Southern District - SD39041

Waiver of testimony was knowing and voluntary 
Criminal defendants had the right to testify, only the criminal defendants could waive that right, and waivers had to be knowing and voluntary. The record from the criminal trial and the evidentiary hearing on the motion showed that the movant’s waiver met those standards. When a claim for ineffective assistance of counsel included failure to call a witness, the elements included testimony that would have unequivocally supported a defense, which the movant did not show. The circuit court did not err in denying relief, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Derrie S. Williams, Appellant, v. State of Missouri, Respondent 
Missouri Court of Appeals-Eastern District - ED113255

Mental disease or defect claim unsupported 
The elements of a claim for ineffective assistance of counsel included substandard performance and resulting prejudice. When founded on the failure to investigate and call a witness, the motion must allege what the witness would have shown. The defendants could reduce culpable mental states with evidence of diminished capacity like a mental disease or defect. The movant’s mental disease or defect appeared in the motion’s allegations, but an allegation of how the mental disease or defect would have negated the mental state alleged in the criminal action was absent, rendering the allegations merely speculative. The allegation of prejudice was merely conclusory. The circuit court did not err in denying relief, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Daniel T. Williams, Appellant, v. State of Missouri, Respondent. 
Missouri Court of Appeals-Eastern District - ED113233

Administrative

Attorney fees awarded in sunshine law case 
The Open Meetings and Open Records Act, also known as the Sunshine Law, governed access to government documents. In an action under the Sunshine Law, the plaintiff sought production, a civil penalty, costs, and attorney fees; so merely providing the record did not moot the action. Civil penalties were possible for knowing failures to disclose any records, not just incident reports and arrest reports. Knowing meant “that the public entity knew that its failure to produce the [record] violated the Sunshine Law.” Costs and attorney fees were presumed reasonable, and the defendant appellant did not show otherwise because the defendant did not show that the circuit court arrived at the amounts arbitrarily or through indifference. The Missouri Court of Appeals affirmed the judgment and remanded the action for the circuit court to determine award of attorney fees for the appeal. 
THE OLIVER FIRM, L.C., Plaintiff-Respondent v. SHERIFF CARL HEFNER, in his capacity as Sheriff of Stoddard County, Missouri, Defendant-Appellant, and AMY HOLDEN, in her capacity as Records Custodian for the Stoddard County Sheriff's Department, Defendant 
Missouri Court of Appeals-Southern District – SD38762

Criminal

Possession of firearm shown without additional incriminating evidence 
The defendant driver was a felon barred from possessing a firearm, and an informant stated that the defendant had a firearm in her vehicle, which constituted probable cause to stop and search the vehicle. The elements of possession of any item included knowledge of the item’s nature and control over the item. Possession could be sole or joint. The defendant’s vehicle had a firearm “within easy reach and convenient control” of the defendant. That alone was enough for a jury to find that the defendant possessed the firearm. “To the extent this Court’s opinions or opinions of the court of appeals hold or suggest ‘additional incriminating evidence’ is required to establish sufficient evidence of possession of an object when there is a shared space, joint possession, or arguably something other than exclusive or sole possession, these cases do not follow the plain language of the relevant statutes and should no longer be followed.” Additional supporting evidence included ammunition on the driver’s side and attempts to avoid law enforcement officers. The Supreme Court of Missouri affirmed the conviction. 
(Overview summary)
State of Missouri, Respondent, vs. Amanda Joy Rogers, Appellant.
Supreme Court of Missouri - SC101172

Possession of controlled substance shown without additional incriminating evidence 
Possession of a thing meant awareness of the thing and control over it. Possession could be sole or joint; either was subject to proof by circumstantial evidence. Appellate courts did not choose between equally valid inferences because that would make appellate courts into fact-finders. The State’s evidence showed that methamphetamine was within the defendant driver’s “easy reach and convenient control.” That evidence was sufficient to attribute possession to the driver. “To the extent this Court’s opinions or opinions of the court of appeals hold or suggest ‘additional incriminating evidence’ is required to establish sufficient evidence of possession of a controlled substance when there is a shared space, joint possession, or arguably something other than exclusive or sole possession, these cases do not follow the plain language of the relevant statutes and should no longer be followed.” Additional supporting evidence included parking behind closed businesses, an intoxicated passenger, refusing consent to search before asked, and a canine alert. The Supreme Court of Missouri affirmed the conviction.
(Overview summary)
State of Missouri, Respondent, vs. James Keith Eggleston, Appellant.
Supreme Court of Missouri - SC101152

Orders of protection

No course of conduct, no stalking 
The elements of stalking included fear of physical harm subjectively and objectively from a course of conduct, meaning more than one event. The petitioner testified to only one event that caused the petitioner and her daughters to fear physical harm. The petitioner also testified that she and her daughters experienced fear when the respondent drove past their house in violation of his probation, but did not state that any of them feared physical harm. The Missouri Court of Appeals vacated the judgment that granted a five-year order of protection, remanded the action, and instructed the circuit court to deny the petition. 
C.L.H., Respondent v. ARTHUR H. BALDWIN, Appellant 
Missouri Court of Appeals-Southern District - SD38949

No alarm, no stalking 
The elements of stalking included fear of physical harm subjectively and objectively. Petitioner showed neither. “[W]hen asked by his counsel whether he feared physical harm,” the petitioner “gave a bare affirmative answer [and] his answer immediately went on to specifically detail the emotional distress that Baker’s communications caused him.” The Missouri Court of Appeals vacated the judgment that granted a five-year order of protection, remanded the action, and instructed the circuit court to deny the petition. 
RYLEE HARTWELL, Petitioner-Respondent v. DARYL BAKER, Respondent-Appellant.
Missouri Court of Appeals-Southern District – SD38942

Personal injury

Reasonable diligence started the statute of limitations 
The plaintiff brought claims against the defendant over sexual abuse by the defendant’s employee, settled those claims, and later brought an action against the defendants for fraud. The plaintiff charged that the defendants knew about the sexual abuse and concealed that knowledge when they settled. The statute of limitations on an action for fraud was five years, starting with when the fraud was discovered, or could have been discovered with reasonable diligence. Reasonable diligence meant that “[a] plaintiff has a duty to make inquiry to discover facts surrounding the fraud and is deemed to have knowledge of the fraud when he possesses the means of discovery.” That included communications from a defendant, a circuit court action in which the plaintiff participated, and local newspaper articles. Those sources described the defendants’ knowledge beyond the limitations period. The defendants established those facts beyond genuine dispute, so the circuit court did not err in entering summary judgment for the defendants, and the Missouri Court of Appeals affirmed that judgment. 
LOGAN YANDELL, Plaintiff-Appellant v. KANAKUK HERITAGE, INC., KANAKUK MINISTRIES, JOE WHITE, and ACE AMERICAN INSURANCE COMPANY, Defendants-Respondents
Missouri Court of Appeals-Southern District - SD38892

Post-conviction

Motion’s allegations were insufficient 
When the movant claimed ineffective assistance of trial counsel for failure to call a witness, the motion had to “specifically identify who the witness was, what their testimony would have been, whether or not counsel was informed of their existence, and whether they were available to testify.” The movant’s initial motion did not identify the witness, so an appeal from the judgment denying relief did not show error. The movant’s amended motion identified the witness, but the movant withdrew the amended motion. And the trial counsel’s choice against calling the witness was reasonable trial strategy because the witness would have helped the State more than the movant. The circuit court did not err in denying relief, and the Missouri Court of Appeals affirmed that judgment. 
CARL CAMERON FERGUSON, Appellant v. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals-Southern District - SD38798

Real estate

Plain language governed easement 
The courts read the provisions in deeds according to their plain language and resorted to the canons of construction only when the provisions are unclear. The plaintiff’s deed provided an easement for ingress and egress, including to heirs and assigns, with a restriction for non-commercial use. The inclusion of heirs and assigns marked the easement as appurtenant, benefitting a dominant estate and burdening a subservient estate, rather than in gross. Non-commercial use meant primarily for-profit activities, so the restriction did not bar access for agricultural purposes. Nothing about ingress and egress restricted use to the owner and the owner’s immediate family; that use included third persons like guests of the owner and the owner’s immediate family. In an action to quiet title, the circuit court erred in excluding the grazing of cattle and third persons’ ingress and egress, so the Missouri Court of Appeals entered judgment for the plaintiff. 
(Overview summary)
Arthur F. Daume, Jr., and Gayle C. Daume, Appellants, v. Thomas Szepanksi, et al., Respondents.
Missouri Court of Appeals-Eastern District - ED113073

Attorneys

Lawyer disbarred 
The Supreme Court of Missouri regulated the practice of law including attorney discipline; reviewing de novo the findings, conclusions and recommendations of disciplinary panels. The respondent lawyer was subject to discipline for repeatedly lying to clients and his employer and mishandling client funds. Considering the many aggravating factors and few mitigating factors, “Disbarment is the only reasonable response.” Unreported orders did not constitute any authority and lawyers should not cite them. The Court disbarred the respondent lawyer. 
(Overview summary) 
In re: Brian Todd Goldstein, Respondent 
Supreme Court of Missouri - SC101182

Civil

The scope of the pleadings excluded more but included less 
Circuit courts could not grant more relief than sought but could grant less. In an action to quiet title, the plaintiffs claimed adverse possession of a lot of land, the circuit court found for plaintiffs in part, and found for the defendant appellant as to the rest. That relief did not exceed the scope of the pleadings. The remainder of appellant’s brief was so deficient as to points relied on and argument that an opinion would require developing theories for the appellant, which appellate courts will not do, so the Missouri Court of Appeals dismissed those challenges. The Court of Appeals affirmed the judgment. 
TERESA J. WILLIAMS and DAVID WILLIAMS, wife and husband, Plaintiffs-Respondents v. WILLIAM and PHYLLIS DECKER, 2001 DECKER FAMILY TRUST, STEPHEN DECKER, Trustee, Defendants-Appellants 
Missouri Court of Appeals-Southern District – SD38974

Constitutional

Incarceration Reimbursement Act okay 
The appellant preserved a constitutional challenge by raising it with a citation to the argued provisions before judgment. The Incarceration Reimbursement Act allowed the State to recover the costs of incarceration damages paid in settlement of an action under United States statutes because the State and its employees were not the defendants in the action, so the reimbursement did not reduce the award. Missouri savings statutes maintained the reimbursement after repeal of the act. 
(Overview summary) 
State of Missouri ex rel Andrew Bailey, Missouri Attorney General vs. Ronnie Pope 
Missouri Court of Appeals-Western District – WD87652

Criminal

Alternative perpetrator evidence rejected 
The foundation for evidence of an alternative perpetrator included a “direct connection,” meaning some action by the proffered alternative perpetrator connected to the offense. The defendant’s alternative perpetrator had an intimate relationship with the victim, had committed domestic violence, owned a firearm, and was investigated by police; but none of that connected the alternative perpetrator to the offense. And “the overwhelming physical, electronic, and video surveillance evidence directly connects Williamson, and no other person, to Victim’s murder." Procedure in a conviction that the defendant did not appeal could not constitute error in the conviction that the defendant did appeal. 
(Overview summary) 
State of Missouri vs. Dale Lawrence Williamson 
Missouri Court of Appeals-Western District – WD87733

Plain error review of invited error declined 
Counsel for the parties do not expect, and may “appropriately” resent, circuit court intervention sua sponte in the presentation of their cases; accordingly, to refrain from sua sponte intervention was rarely error. No sua sponte mistrial was necessary when the State impeached the defendant with the defendant’s prior inconsistent statements because such impeachment did not constitute a comment on the right to remain silent. On the contrary, the defendant “was under no duty to speak [but,] having spoken, he enjoys no license to lie.” Constitutional provisions gave the defendants the right to jury findings on facts that enhanced their sentences, while a Missouri statute allowed such findings by judicial notice, and the defendant agreed to and received both. Any error was therefore invited, the defendant’s objection at sentencing was too late to preserve a constitutional challenge, and the only possible challenge remaining was under plain error review. Plain error review was discretionary and invited error weighed against such review, so the Missouri Court of Appeals declined. 
(Overview summary) 
State of Missouri vs. Johnathan Mosley 
Missouri Court of Appeals-Western District – WD87726

Parole eligibility corrected 
Sentences as spoken prevailed over sentences as written and variances constituted clerical errors. The circuit court’s written sentence included a minimum number of years before parole eligibility that was unauthorized by statute and did not appear in the spoken sentence. The Missouri Court of Appeals remanded the action for correction nunc pro tunc to conform the written sentence to the spoken sentence. 
STATE OF MISSOURI, Plaintiff-Respondent v. JERRY GAGE, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38490

Wrong jury instruction, no plain error 
The defendant’s statement of “no objection” to the jury instructions did not waive plain error review. Plain error’s elements included an obvious error and a resulting in manifest injustice or miscarriage of justice. The State charged the defendant with forgery by using, possessing for the purpose of using, or transferring with the knowledge or belief that it would be used, a writing as genuine. The defendant did not contest that allegation so, when the circuit court erroneously submitted instructions for forgery by authenticating a writing, no manifest injustice or miscarriage of justice resulted. No plain error occurred and the Missouri Court of Appeals affirmed the conviction. 
STATE OF MISSOURI, Plaintiff-Respondent v. MONIKA GEAN GRAY-EL, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38991

Various instructional errors explained
Instructional errors included variances from the allegations in charging instruments, sufficiency of the evidence to support a verdict directing instruction, and sufficiency of the evidence to support a verdict. But all three were separate issues with separate standards, so their appearance in the same point relied on rendered the point multifarious so the points were unpreserved. Preservation was not necessary for appellate courts to review the sufficiency of the evidence to support the verdict but the Court of Appeals could not resolve the multifarious points without advocating for appellant and so dismissed them. The evidence was sufficient to support instructions on first degree robbery and third degree assault as a principle, not merely as an accomplice, so those instructions did not constitute error. And the record showed strategic reasons why defendant did not object to those instructions. No plain error occurred as to those instructions so the Court of Appeals affirmed the convictions.
STATE OF MISSOURI, Respondent v. KENNETH LEE CANDAY, Appellant
Missouri Court of Appeals-Southern District – SD38867
 

Employment security

Appellant’s deficient brief required dismissal 
When deciding an appeal required an appellate court to advocate for an appellant, appellate courts dismissed the appeal. Rules governing appellate practice required the appellant’s brief to include a fair and concise statement of the relevant facts and refer to the record by page number; to set forth points relied on in a specified format; and to include a preservation statement, the standard of review, and application of law to fact in each argument. Failure to comply with those rules required dismissal. 
(Overview summary) 
Anteria Pratt vs. Harry S Truman Children's Neurological Center, Employer, and Division of Employment Security 
Missouri Court of Appeals-Western District – WD88082

Evidence

Complete picture distinguished from propensity 
The character and admissibility of evidence that the defendant committed an uncharged offense depended on the purpose for which it was offered. If offered to show a defendant’s natural tendency to commit the offense charged, the evidence constituted propensity evidence, which was generally inadmissible. Offered to show a complete picture of the events, like the defendant’s relationship with the victim, the evidence was admissible. That described testimony about the defendant’s sexual experience with an underaged child other than the victim. That evidence was not subject to exclusion as cumulative of other grooming evidence because that other evidence related to different instances. And the State minimized unfair prejudice by only briefly addressing the matter in opening argument, questioning the victim, closing argument, and rebuttal. 
(Overview summary) 
State of Missouri, Respondent, vs. David K. Duncan, Sr., Appellant 
Missouri Court of Appeals-Eastern District – ED113148

Family

Status quo ante property division affirmed 
“[A]dopting a faulty proposed judgment … may indicate a lack of judicial consideration.” Nevertheless, in actions for dissolution of marriage, circuit courts did not have to divide property evenly. Property division had only to be fair and equitable under circumstances that included the source of funds and marital misconduct. “These factors alone are sufficient to support” a property division that returned the parties to their status quo ante the marriage, and the appellant’s improved post-marriage earning power strengthened that conclusion. The same standards applied to the division of debt. The circuit court did not abuse its discretion when it awarded the marital residence to the respondent, did not remove the appellant’s name from the mortgage, and ordered the respondent to hold the appellant harmless on that debt. 
(Overview summary) 
Alexander Cooper Komes, Appellant, v. Jason Joseph Grote, Respondent 
Missouri Court of Appeals-Eastern District - ED113243

Legislative

Departure from original purpose sinks initiative bill
In challenges to legislation, the burden of proof was with parties challenging the legislation’s lawfulness and, when such parties prevailed, on any party seeking severance. Expenditure of State revenue pursuant to legislation conferred standing on a taxpayer to challenge whether such legislation was lawful, including as to procedural requirements like maintaining legislation’s original purpose. Original purpose meant “the bill’s ‘earliest title and contents’ at the time the bill is introduced.” Legislation introduced to address the judicial review of ballot summaries eventually granted the attorney general standing in actions unrelated to ballot summaries. That standing provision legislation constituted an original purpose violation. The State did not sufficiently allege that the standing provision was dispensable to the legislation’s passage, and the record showed otherwise, so severance was not possible. The Supreme Court of Missouri reversed the circuit court and entered judgment invalidating the legislation entirely.
(Overview summary)
Sean Soendker Nicholson, Appellant/Cross-Respondent, vs. State of Missouri, et al., Respondents/Cross-Appellants
Supreme Court of Missouri - SC101308

Personal injury

Third party's evidence not needed for defamation 
The standard for a directed verdict was whether the plaintiff offered substantial evidence supporting each element of the claim, assuming that the jury believed the evidence and inferences favoring the plaintiff at the close of the plaintiff’s case in chief, and assuming that the jury ignored contrary evidence and inferences. Appellate review of a directed verdict considered only the theories raised in the motion. The elements of a claim for defamation included a false statement that damaged the plaintiff’s reputation. The element of damage required evidence and the plaintiff’s own testimony was sufficient. The plaintiff testified that multiple statements of the defendants cost him access to workspace, entry to a coffee house, a speaking engagement, and access to his own residence. “Assigning weight to evidence to decide what and whom to believe is the reserved role of the jury. It plays no part in the purely legal enterprise of ruling on a motion for directed verdict.” The circuit court erred in directing a verdict for the defendant, so the Supreme Court of Missouri vacated that judgment and remanded for a new trial. 
(Overview summary) 
Mouna Apperson, f/k/a Nicholas Apperson, Appellant, vs. Natasha Kaminsky, et al., Respondents 
Supreme Court of Missouri - SC101020

Post-conviction

Habeas corpus issued on late probation revocation 
A challenge to revocation of probation was not under rules on post-conviction relief, it was by petition for writ of habeas corpus. A writ of habeas corpus was subject to review by writ of certiorari, which required the circuit court certified the record to an appellate court. An appellate court determined whether the evidence as a whole supported the issuance of a writ and whether a circuit court abused its discretion. A circuit court had authority to revoke probation only as long as a term of probation. A term of probation was subject to extension only if a circuit court manifested its intent to conduct a revocation hearing before expiration and made “every reasonable effort … to notify the probationer and to conduct the hearing prior to the expiration of the period.” For certain felonies, earned compliance credits shortened probation, except while a violation report or motion to revoke was pending. The petitioner’s probation ended before the circuit court, and court appearances after that did not constitute invited error, because those appearances gained petitioner no strategic advantage. “Thus, if any party invited error, it was the State in seeking to revoke Nail’s probation ten years after she was entitled to discharge.” Outstanding restitution barred early release for some offenses but not petitioner’s offenses. Discharge was mandatory. 
(Overview summary) 
State of Missouri ex rel. Catherine L. Hanaway vs. The Honorable Page Bellamy, Associate Circuit Judge, and Janet Horine, Circuit Clerk 
Missouri Court of Appeals-Western District – WD88167

Stipulation was sound strategy 
The movant did not show that any relief was due when trial counsel presented no expert opinion on secondary touch DNA transfer when the movant had failed to present a factual basis for such an event, and did not show what the opinion would have been, and a favorable opinion would have been cumulative. A stipulation to a chain of custody reduced the number of State’s experts testifying and constituted sound trial strategy refuted the movant’s claim of inadequate assistance. Overwhelming evidence negated any prejudice from trial counsel’s choice against trying to impeach the victim’s credibility. Alarm was not an element of sexual misconduct by exposure of genitals to a child, so the appellate counsel’s performance did not prejudice the movant in arguing absence of alarm. Appellate review of a motion was limited to rulings on the motion, which was limited to the trial and judgment, so “rulings relating to the … motion proceedings are arguably not cognizable in this appeal.” Even if they were, no error occurred when the circuit court did not admit exhibits filed but not offered, and no prejudice resulted because the circuit court reviewed those exhibits. 
(Overview summary) 
Dan R. Lawrence vs. State of Missouri 
Missouri Court of Appeals-Western District – WD87532

Choice of instructions was sound strategy 
The approved instruction defining “knowingly” was optional, and trial counsel offered lesser included offense instructions with a definition of “recklessly,” while focusing on the degree of injury. That was a reasonable strategy that negated substandard performance. And the movant showed no prejudice because the definition for knowingly used that term in its ordinary sense. No prejudice occurred when trial counsel chose not to object to cumulative evidence because cumulative evidence was not prejudicial, even when inadmissible. 
CLARENCE EDWARD PORTER, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals-Southern District – SD38865

No promises, no misadvice 
No evidentiary hearing on a motion was due before denying relief when the record refuted the movant’s allegations. At the movant’s plea hearing, the movant stated that no promises induced his guilty plea. That testimony contradicted the movant’s allegations of misadvice on parole eligibility. The circuit court denied relief without a hearing and the Missouri Court of Appeals affirmed that judgment. 
JOHN A. PENDERGRASS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals-Southern District – SD38876

Appointed counsel mandatory even for untimely motion 
Circuit courts had to appoint post-conviction counsel for indigent defendants. That was true even when the initial motion was untimely filed because an untimely filing could be excused, and post-conviction counsel could make that case. The circuit court dismissed the movant’s initial motion, filed with an affidavit of indigency, for untimely filing without appointing post-conviction counsel. The Missouri Court of Appeals vacated that judgment and remanded the action for appointment of post-conviction counsel. 
KENNETH R. CORCRAN, Movant v. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals-Southern District – SD39156

Real estate

Statute applied to existing covenants 
The defendant homeowners’ association had a restrictive covenant barring solar panels. A new statute forbad such restrictions. Constitutional provisions barred legislation “impairing the obligation of contracts” or “retrospective in its operation.” That did not protect contracts from changes in public policy. The public policy favoring solar power, and the time between the bill’s passage and effective date, supported a prospective effect for a ban on restrictive covenants against solar panels. “Under the new statute, one aspect of that restriction is no longer enforceable.” The new statute allowed covenants to reasonably regulate solar panels but a limitation on placement was not reasonable. The circuit court erred in concluding that the new statute applied only to covenants made after the new statute’s effective date so the Supreme Court of Missouri entered declaratory judgment for plaintiffs. 
(Overview summary) 
Colleen Eikmeier and William S. Love, Appellants, vs. Granite Springs Home Owners Association, Inc. A Missouri Not-For-Profit Corp., Respondent 
Supreme Court of Missouri - SC101152

Schools

No allegation of protected status, no discrimination 
The Human Rights Act barred race-based, retaliatory, and associational discrimination in public accommodations. The plaintiff parents of a student brought such actions against a school district. The elements of the plaintiffs’ actions included denial of public accommodations, and plaintiffs failed to allege that they had experienced any denial of any facility by the defendant, or any retaliation against them based on their race, or their son’s race. The circuit court dismissed the petitions and the Missouri Court of Appeals affirmed that judgment.
SEAN MABINS and DARLINE MABINS, Plaintiffs-Appellants v. MISSOURI STATE HIGH SCHOOL ACTIVITIES ASSOCIATION, by and through its Board of Directors MARK LINNEMAN, TRAVIS DITTEMORE, DANIEL CLEMENS, KEVIN SMITH, JOSH HOENER, JOSH SCOTT, CRAIG GIBBS, DAVID JONES, HEATHER HELSEL, and AARON VITT, and SCHOOL DISTRICT OF SPRINGFIELD R-12, NATE THOMAS, SCOTT PHILLIPS, and JOSH SCOTT, Defendants-Respondents 
Missouri Court of Appeals-Southern District – SD38982, SD38993

Employment security

No late appeal 
In actions for employment security benefits, decisions of the Labor and Industrial Relations Commission were subject to judicial review in the Court of Appeals by filing a notice of appeal with the Commission. The time for filing was limited and no special order was available for a late filing. Appellant filed a notice of appeal ten months late, so the Court of Appeals could not hear the appeal, and dismissed the appeal. 
(Overview Summary) 
Chunjuan Shan vs. Division of Employment Security 
Missouri Court of Appeals, Western District – WD88029

Civil

Amended petition started time to change venue 
A party seeking change of venue had to file a motion no later than 60 days from receipt of service. That included service of an amended pleading that changed the appropriate venue by changing the allegations or parties. Otherwise, abandoned pleadings would control. The circuit court did not abuse its discretion in granting the motion to transfer so the Court of Appeals quashed its preliminary writ in mandamus. 
STATE OF MISSOURI ex rel. VIVA ROBERTS, Relator v. THE HONORABLE JOSEPH HENSLEY, Respondent 
Missouri Court of Appeals, Southern District – SD39073

Corporations and other legal entities

Unwritten operating agreement governed 
For limited liability companies, no signed or even written operating agreement was necessary. A limited liability company could function under a spoken agreement, if that agreement addressed all matters material to a contract. Conduct consistent with those provisions, including contributions of labor, supported the existence of such an agreement. Defendant waived the Statute of Frauds by failing to object to testimony about the spoken agreement. Defendant drafted an operating agreement to become effective on the signature of all members; and neither conduct consistent with the written operating agreement, nor the written agreement’s use in securing a loan, was a substitute for a signature. And member plaintiff did not sign, the circuit court found. Those findings were due deference on appeal. Therefore, the written operating agreement and its arbitration provision did not bind plaintiff. 
(Overview Summary) 
Jennifer McKinley vs. Diane K. Hook and Grace & Wisdom, LLC 
Missouri Court of Appeals, Western District – WD87683

Criminal

Search was okay, resulting evidence was insufficient 
Detention for a traffic violation could last as long as reasonably necessary to investigate the traffic violation, subject to extension when reasonable and articulable grounds to suspect illegal activity arose during the investigation. Such was the case when driver’s statements and other conduct suggested contraband in the car so the seizure and search were not unlawful. The search yielded an item of paraphernalia that, the State alleged, defendant passenger used to inhale methamphetamine. The item was a straw, and the straw was sealed at one end, rendering the straw useless for ingesting methamphetamine. That evidence did not support a conviction for possessing methamphetamine as charged so the Court of Appeals reversed defendant’s conviction for possession of drug paraphernalia. 
(Overview Summary) 
State of Missouri vs. Lisa Marie Coots 
Missouri Court of Appeals, Western District – WD87420

No review of invited error 
On direct appeal, appellants had to charge an error by the circuit court, so “[f]reestanding claims of prosecutorial misconduct ‘untethered to a claim of trial court error’ are not cognizable by [an appellate c]ourt.” Because circuit courts had no duty to assist trial counsel, only exceptional circumstances supported sua sponte intervention generally and a mistrial specifically. That did not describe the State’s closing argument referring to a police report mentioned in testimony, so no plain error occurred when the circuit court failed to act against the reference sua sponte. A single, brief, vague mention to defendant’s probation officer was responsive to defendant’s examination; so any circuit court error in failing to declare a mistrial was invited error, and defendant showed no prejudice. 
(Overview Summary) 
State of Missouri vs. Darron D. Ross-Garner 
Missouri Court of Appeals, Western District – WD87368

Sua sponte intervention not necessary, no plain error
Errors not raised in circuit court were not subject to appellate review unless they qualified for, and an appellate court exercised its discretion in favor of performing, plain error review. Plain error’s elements included an obvious error, which did not describe the absence of sua sponte objections to evidence, unless extraordinary circumstances required sua sponte intervention. The Court of Appeals affirmed the convictions except that it reversed and remanded the action to conform the written sentence to the sentence as spoken in the defendant’s presence.
STATE OF MISSOURI, Plaintiff-Respondent v. CHRISTOPHER ALLEN ODOM, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD38871

Appellate

Conditional judgment was not final 
Judgments were subject to appeal when final, meaning a judgment that left nothing for further determination. That did not describe a conditional judgment, meaning a judgment that conditioned its orders on facts outside the record. In an action for declaratory judgment, the circuit court ordered one party to convey an easement to another party when that other party performed under a contract. Whether that performance occurred was not in the record, so the judgment was conditional, not final and subject to appeal, so the Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
Marty Niffen, et al., Respondents, v. Michael Feinstein, et al., Appellants.
Missouri Court of Appeals-Eastern District – ED113227

Attorneys

In attorney discipline, Supreme Court of Missouri drew its own conclusions 
Attorney discipline depended on culpability: “The baseline discipline is disbarment for intentional misconduct, a suspension for knowing misconduct, and a reprimand ‘for isolated instances of negligent misconduct[.]’" In an action for attorney discipline, a stipulation between the Office of the Chief Disciplinary Counsel and the attorney bound the parties but not the Supreme Court of Missouri. The Supreme Court of Missouri disagreed with the parties’ characterization of respondent attorney’s conduct as merely negligent. The Supreme Court of Missouri concluded that that attorney knowingly assisted the client in an intended fraud in the client’s son’s action for dissolution of marriage. Tipping off counsel for the adverse party did not negate that “conscious awareness” of the circumstances. The Supreme Court of Missouri suspended the attorney indefinitely, with leave to apply for reinstatement in six months, and stay of that discipline pending a year of probation. 
(Overview summary)
In re: Mark W. Arensberg, Respondent.
Supreme Court of Missouri - SC101157

Civil

Motion to set aside default was too late 
Parties in default alleging good cause for defaulting, and a meritorious defense to the defaulted claim, move to set aside a default judgment within one year of the entry of the default judgment. Entry, not notice, of the judgment started the time running; and, besides, defaulting parties had no right to further notice. The month after the deadline, the defendant filed a motion to set aside, which was too late. The underlying action was pursuant to the Human Rights Act, which allowed the prevailing plaintiff an award of attorney fees. The Missouri Court of Appeals affirmed the denial of the motion to set aside and remanded the action to determine the attorney fees award. 
(Overview summary)
Celestina Gamez, Respondent, v. Easyex Mo OFallon, LLC, Appellant.
Missouri Court of Appeals, Eastern District – ED113623

Establishing and disputing facts in summary judgment explained 
To prevail on summary judgment, the movant party had to establish, beyond genuine dispute, facts on which the law required a favorable ruling for the movant. In a claim for negligence, the elements included a breach in the duty of care owed from the defendant to the plaintiff. The movant defendant did not establish that any hazard was open and obvious. The defendant established that the defendant did not manage the parking lot where the plaintiff fell, but those facts did not negate the defendant’s duty to avoid creating tripping hazards, so those facts did not entitle the defendant to a favorable judgment. The defendant also established that the plaintiff released the parking lot’s owner but the release’s plain language established that the release did not apply to the defendant. To establish or dispute facts, parties could use affidavits as follows, “Affidavits in support of [or in opposition to] summary judgment must be based on personal knowledge, set forth facts that would be admissible in evidence, and show affirmatively that the affiant is competent to testify on the matters stated therein.” Both parties failed to meet that standard in part, and how much of an affidavit to strike for such failure was within the circuit court’s discretion. Nevertheless, the non-movant plaintiff raised a genuine dispute as to the defendant’s liability by citing discovery implying the creation of a hazard. Because the material facts were in genuine dispute, the circuit court erred in entering summary judgment for the defendant, so the Missouri Court of Appeals reversed the judgment and remanded the action. 
(Overview summary)
Cari Bossow-Murdock vs. Premier Parking Services, Inc
Missouri Court of Appeals-Western District – WD87719 consolidated with WD87745

Criminal

Reasonable resistance discussed 
The elements of sexual abuse in the first degree included forcible compulsion, meaning physical force sufficient to overcome reasonable resistance. The State showed forcible compulsion with the victim’s testimony on how the defendant placed the defendant’s hand and placed the victim’s hand. Forcible compulsion could occur even if the application of physical force did not meet with initial resistance, at least when there was no opportunity to resist. Reasonable resistance included the victim freezing, retracting the victim’s hand, and leaving the room. Reasonable resistance did not include resistance that would have been futile or provoked more injury. 
(Overview summary)
State of Missouri, Respondent, vs. Christopher M. Grimes, Appellant.
Missouri Court of Appeals-Eastern District – ED113311

Defendant opened the door to evidence of bond violations 
The circuit court could admit other inadmissible evidence that the State offered to counter a matter raised first by the defendant; so, when the defendant raised the conditions of the defendant’s bond, the State could offer evidence of the defendant’s bond violations. Evidence of escape was admissible to show consciousness of guilt, and the defendant’s explanation went only to the weight of such evidence. Prejudice from the erroneous admission of evidence the defendant meant that a finding of guilt was not reasonably likely without the disputed evidence. That did not describe the firearms-related literature and paraphernalia found in the defendant’s possession when compared to “the weighty and material evidence the State presented to the jury to support his conviction.” Plain error review was discretionary, and inviting error in general — specifically, complaining of an instruction that the defendant submitted — supported a determination to decline plain error review. The defendant had the right to jury findings on his status as a prior and persistent offender status, but waived that right by admitting to those facts, so no plain error occurred when the circuit court made those findings. 
(Overview summary)
State of Missouri, Respondent, v. Mark R. Perry, Appellant.
Missouri Court of Appeals-Eastern District – ED113016

Lesser included offense clarified 
Failure to appear at trial constituted flight that showed consciousness of guilt. The foundation for admitting a text message included evidence that the putative sender was also the author, more than ownership of the sending number, but less than anything unduly burdensome. For that purpose, identifying information in the disputed texts was sufficient, and the weight assigned to such evidence was for the jury. And that evidence was cumulative of other evidence admitted without objection so no prejudice resulted. The foundation for admitting expert evidence included a witness whose qualifications could include experience or training, but experience and training so outdated as to confuse the jury did not meet that standard, so the circuit court did not err in excluding testimony from the defendant’s proffered expert witness. And the proffered evidence was cumulative of other evidence, negating prejudice. When supported by the record, instructions were due on request for lesser included offenses. Offenses were lesser included offenses only of “the immediately higher offense within which the lesser offense is included.” The circuit court gave a lesser included offense instruction that referred to a different higher offense. Whether prejudice resulted depended on whether the incorrect instruction nevertheless tested the element distinguishing the omitted offense. Because the circuit court also submitted the correct higher offense instruction, and the jury presumptively read all the instructions, the instructions tested the distinguishing element: knowledge as to the victim’s ability to give consent. The elements of burglary in the second degree included either knowingly entering unlawfully or knowingly remaining unlawfully. The submitted instruction found the defendant guilty if the defendant either “knowingly entered,” or “remained unlawfully,” which constituted plain error. The Missouri Court of Appeals reversed and remanded the conviction on burglary in the second degree, otherwise affirmed the judgment, and remanded the action. 
(Overview summary)
State of Missouri, Respondent, v. Jeffrey Lematty, Appellant.
Missouri Court of Appeals-Eastern District – ED112791

Plain error review declined 
The elements of plain error included manifest injustice or miscarriage of justice resulting from an obvious error. The defendant’s questions of a witness opened the door to evidence about the defendant’s use of firearms, and the jury acquitted the defendant of armed criminal action, so the defendant did not show that the evidence on firearms was outcome-determinative. The defendant did not show that any plain error occurred, so the Missouri Court of Appeals declined plain error review. 
STATE OF MISSOURI, Plaintiff-Respondent v. ROBERT MUTTER, Respondent-Appellant
Missouri Court of Appeals-Southern District - SD38757

DWI

No jury finding necessary on persistent offender status 
A challenge to a statute as facially unconstitutional was negated by “any set of circumstances under which the statute is constitutional.” Constitutional provisions protected the right to a unanimous jury finding on any fact that enhanced a potential sentence, including persistent offender status for driving while intoxicated. The elements of that status included two convictions on separate occasions, which the circuit court found without, and did not reveal to, the jury before a verdict in the guilt phase. But the jury could rule on the same issue in the same way in the sentencing phase, in which case no constitutional violation would occur. The procedure was not unconstitutional on its face, so the respondent circuit court lacked authority to dismiss a charge on that basis, and the Supreme Court of Missouri made permanent its writ of mandamus requiring the circuit court to set aside the dismissal. 
(Overview summary)
State ex rel. Catherine Hanaway, Relator, vs. The Honorable Craig Hellmann, Respondent.
Supreme Court of Missouri - SC101132

Evidence

Character evidence was inadmissible
Parties could impeach a witness’s credibility with evidence of the witness’s truthfulness and veracity, which constituted character evidence, and so required knowledge of the witness’s general reputation in a relevant community. The defendant only offered evidence purporting to show that a State’s witness had lied in specific instances. And the defendant’s offer of proof did not show any lie. No abuse of discretion occurred when the circuit court excluded that evidence. 
(Overview summary)
State of Missouri, Respondent, v. Kenneth Daub, Appellant.
Missouri Court of Appeals-Eastern District – ED113125

Evidence surrounding defendant’s flight was admissible 
The elements of involuntary manslaughter in the first degree included recklessness. On that charge, the State made a submissible case with evidence that the victim suffered injuries, the defendant was in the Mark Twain National Forest where the body was concealed, that the defendant tampered with evidence, and that the defendant fled with her children, hiding out in Mark Twain National Forest. Evidence of uncharged bad acts was generally inadmissible to show propensity and admissible to show “motive, intent, the absence of mistake or accident, a common scheme or plan, the identity of the defendant on trial, or a coherent picture of the overall events.” Evidence of the children’s resulting condition was relevant to a complete picture of the events surrounding the victim’s death; to tampering with physical evidence; and to the defendant’s motive, intent, and consciousness of guilt. The “tipping point” at which such evidence became more prejudicial than probative was within the circuit court’s discretion to determine, the defendant failed to identify that tipping point, and so the defendant showed no abuse of discretion. The rule against hearsay barred in-court evidence of out-of-court statements offered to show the truth of the matter stated. The State offered evidence relating the victim’s accusations toward the defendant to show discord and motive, and not to show that those accusations were true, so that evidence was not hearsay. And the statements were cumulative of evidence received without objection, so no prejudice resulted. The foundation for expert testimony included showing that the testimony was “relevant, reliable, and proffered by a qualified expert [,]” which the State provided, so no Daubert hearing was necessary — at least when the testimony related to a preliminary, not a conclusive, chemical test. The circuit court erred in granting the defendant’s motion for acquittal notwithstanding the verdict as to involuntary manslaughter in the first degree. The Missouri Court of Appeals reversed the acquittal and remanded the action for the circuit court to accept the verdict and sentence the defendant; and affirmed convictions on tampering with physical evidence.
STATE OF MISSOURI, Plaintiff-Respondent/Cross-Appellant v. DANISHA RACHELLE PRICE, Defendant-Appellant/Respondent
Missouri Court of Appeals-Southern District - SD37979 and SD37987

Health

SAFE Act and Medicaid ban okay 
A challenge to a statute’s constitutionality that sought a blanket ban on enforcement constituted a facial challenge because that remedy only applied when the statute could operate constitutionally under no conceivable set of circumstances. That standard thwarted appellants challengers’ challenges to expert evidence and findings of fact. Constitutional provisions protected equal protection, due process, and the gains of industry. The Save Adolescents from Experimentation Act and associated Medicaid ban barred performance of, and Medicaid payment for, gender transition treatments for minors. The act and the ban did not violate equal protection because the act addressed “medical use and age, not sex or transgender status [,]” and so made no suspect classification; and the act bore a rational relation to the State’s interest in “safeguarding the physical and psychological well-being of a minor [.]” The act did not violate due process because neither minors nor their parents had any fundamental right to health care deemed inappropriate for a minor by the Missouri General Assembly. The act did not violate gains of industry because no medical provider had the right to administer unlawful treatments. The circuit court held that the act and ban were not unconstitutional and the Supreme Court of Missouri affirmed that judgment. 
(Overview summary)
E.N., individually and as next friend and on behalf of her minor child, N.N., et al., Appellants, v. Mike Kehoe, in his official capacity as Governor for the State of Missouri, et al., Respondents.
Supreme Court of Missouri – SC100933

Personal injury

No recovery in police chase 
A defending party without the burden of proof was entitled to summary judgment if it established beyond genuine dispute that the claimant party was unable to show an element of the claim. The elements of negligence included causation, meaning not only causation in fact, but also legal — or proximate — cause. The summary judgment record showed the speed, distance, and duration of its employee’s pursuit of the driver who collided with the plaintiff’s decedent; and that the pursuit was in violation of the defendant’s Highway Patrol’s policy. The plaintiff offered expert testimony that the pursuit caused the decedent’s death. But that testimony was mere speculation and conjecture. Because summary judgment depended on legal entitlement to a judgment, appellate review was de novo. The Missouri Court of Appeals affirmed summary judgment for the defendant. 
K.A.C. by and through, ASHLEY ACOSTA, NEXT FRIEND, and MICHAEL CRITES, JR., Appellants v. MISSOURI STATE HIGHWAY PATROL, ET AL., Respondents
Missouri Court of Appeals-Southern District - SD38943

Post-conviction

Trial counsel’s choice of theory and witnesses was okay 
The elements of a claim for ineffective assistance of counsel included counsel’s substandard performance, which evidence of a reasonable trial strategy negated. Reasonable trial strategy included the trial counsel’s choice to avoid calling an alibi witness whose testimony the defendant contradicted. Reasonable trial strategy also included the trial counsel’s choice to avoid alleging an alternate perpetrator who no evidence directly connected to the offense. 
(Overview summary)
Harry Little, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District – ED113257

Reasonable strategic choices at sentencing negated relief 
A claim of prosecutorial misconduct addressed on direct appeal was not subject to post-conviction relief. The movant charged ineffective assistance of trial counsel at sentencing. The elements of a claim for ineffective assistance of counsel included substandard performance in protecting the movant’s right to a fair trial. Fair trial did not include preserving matter for appeal. A post-trial report required for determining proportionality did not affect the trial. American Bar Association guidelines for the composition of a death penalty defense team did not govern. Standard performance included reasonable choices of strategy and never required cumulative evidence or a meritless argument. Meritless arguments included a challenge to the statute barring a defense of voluntary intoxication. The circuit court did not err in failing to disqualify the prosecutor in the underlying case from representing the State on the motion for making a “send a message” argument. Residence in the region where the offense occurred did not disqualify the circuit judge in the underlying action from ruling on the motion. As to whether trial counsel failed to keep an exhibit out of the jury’s view, the circuit court’s findings received deference. Using the State’s evidence to support a defense was a reasonable strategic choice. Opting not to call an expert witness whose testimony was equivocal was a reasonable strategic choice. “Trial counsel was not obligated to hire a third mental health expert.” A victim impact statement delivered in the form of a third person’s poem was not hearsay, so a hearsay objection would have been meritless. Lay witnesses could testify that defendant was not intoxicated on the day of the offenses, so an objection would have been meritless. An objection based on characterizing defendants as “the devil” would have been meritless because the State made no such argument. The elements of a claim for ineffective assistance of counsel also included the reasonable likelihood of a different outcome. It was not likely that lay testimony on the everyday difficulties of the defendant’s life would have outweighed the aggravating circumstances of the defendant’s guilt. One witness made one hearsay statement that parents kept their children indoors after the movant’s offenses; it was not reasonably likely that the “inconsequential” and irrelevant hearsay statement caused the jury to sentence defendant to death. 
(Overview summary)
Craig M. Wood, Appellant, vs. State of Missouri, Respondent.
Supreme Court of Missouri - SC100874
 

Tax

Payment of lien mooted lien’s appearance on title 
In an action to quiet title, the circuit court found in the appellant’s favor subject to a tax lien that a third party later satisfied. The satisfaction of the lien left no effective relief available to the appellant and the underlying issue, the priority and enforcement of liens for unpaid sewer charges, would not evade appellate review. The Missouri Court of Appeals dismissed the appeal as moot. 
(Overview summary)
WMAC 2013, LLC, Appellant, v. Metropolitan St. Louis Sewer District, Respondent.
Missouri Court of Appeals-Eastern District – ED113312

Criminal

Resisting arrest under warrant was a felony
Resisting arrest included fleeing from an arrest, with or without a warrant. Resisting arrest for a felony was a felony class E. Therefore, resisting arrest under a warrant for a felony constituted a felony class E. The Missouri Court of Appeals affirmed the conviction.
(Overview summary)
State of Missouri, Respondent, vs. Dustin Robinson, Appellant.
Missouri Court of Appeals-Eastern District - ED113160

Evidence

Propensity distinguished from relationship
Evidence of uncharged bad acts was admissible or inadmissible depending on its purpose. When offered to show that defendant tended to commit the crime charged, evidence of uncharged bad acts constituted propensity evidence, and was generally inadmissible. When offered to show the complete picture of the events alleged, evidence of uncharged bad acts was admissible. That included “the relationship between the victim and defendant.” The relationship between the victim and defendant included defendant grooming victim for sexual contact. That grooming included defendant normalizing sexual contact by describing the grooming of a third party. That evidence was logically relevant because it showed the relationship between defendant and victim. The evidence was legally relevant because its probative value outweighed any unfair prejudice. The State’s argument showed the evidence’s purpose. The evidence was not cumulative of harmless and normal activities. The Missouri Court of Appeals affirmed the conviction.
(Overview summary)
State of Missouri, Respondent, vs. David K. Duncan, Sr., Appellant.
Missouri Court of Appeals-Eastern District - ED113148

Administrative

No licensing by declaratory judgment
Courts generally did not hear actions in which no practical relief was possible. While the application was before the Administrative Hearing Commission, the respondent licensing agency rescinded the substantive regulations on which it had denied the appellant applicant’s license application, and the applicant filed a declaratory judgment action. The action sought a declaration that the rescinded regulations were invalid and no basis for denial, but rescission mooted such declaration. Arguments and rulings not made in circuit court were not subject to appeal. The circuit court dismissed the action as moot and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
Missouri Medical Options, LLC, Appellant, vs. Missouri Department of Health and Senior Services, Respondent
Missouri Court of Appeals-Eastern District - ED113472

Deadline started with notification as defined by regulation
A petition alleging facts that did not describe a legal basis for relief was subject to dismissal. The petitioner sought relief from a decision of the Child Abuse and Neglect Review Board but missed the deadline by which such a petition had to be filed. Filing had to occur within a set time from notification. Notification had a definition by regulation, as authorized by statute, and by Supreme Court rule. Notification was not subject to the petitioner’s decision on when to review a notice. “[A] plaintiff cannot plead legal conclusions as ultimate facts to survive a motion to dismiss.” The circuit court could take all the petition’s allegations as true, apply the law, and dismiss the petition for petitioner’s failure to secure the circuit court’s authority. The Missouri Court of Appeals affirmed the dismissal.
(Overview summary)
Virginia L. Graham vs. Missouri Dept. of Social Services
Missouri Court of Appeals-Western District - WD87772 consolidated with WD87839

ADR

Enforcement of settlements distinguished from settled actions
Motions to enforce settlement constituted actions collateral to actions settled. Settlement agreements were subject to specific performance and the appellant was a party to a settlement agreement. So, even if the settled action had not named the appellant, the appellant was subject to judgment enforcing the settlement agreement. The circuit court found facts in accordance with the appellant’s “express position,” so any error constituted invited error on appellate courts would not reverse a judgment. The Missouri Court of Appeals affirmed the judgment enforcing the settlement and remanded the action for a determination of attorney fees and costs.
(Overview summary)
Rebecca Vollmer vs. Hicks Enrichment Resource Outreach Enlightenment Services, LLC, d/b/a H.E.R.O.E.S and Florence Rainey-Hicks
Missouri Court of Appeals-Western District - WD87747

Settlement enforced
When the appellant’s theory on appeal was the absence of substantial evidence to support a judgment, appellate courts considered only evidence supporting the judgment, and did not consider evidence favoring appellant. The appellant had the burden in circuit court to show by “clear, convincing and satisfactory evidence” that a claim settled. A settlement existed because the movants tendered payment in the amount and in the manner respondents demanded.
(Overview summary)
Karen E. Spalding, Deborah K. Thelen, and Cynthia M. Parazak, Appellants, v. Kimberly Agnes Martin and Gary Thomas Martin, Respondent
Missouri Court of Appeals-Eastern District - ED113426

Appellate

Deficient brief required dismissal
Rules governing the appellant’s brief protected “judicial impartiality, judicial economy, and fairness to all parties.” Failure to comply with those rules threatened those values and could support dismissal. The statement of facts had to favor the judgment, give a complete procedural background, and refer to the record. Points relied on had to challenge a ruling made and the grounds for such ruling. Failing to meet those requirements barred review without constructing arguments for the appellant, which it could not do, so the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Rachel Whitehead vs. Zackery Todd Moore Jr.
Missouri Court of Appeals-Western District - WD87588

No motion to amend, no preservation
The circuit court’s failure to make statutorily required findings of fact constituted error. To preserve such error, the appellant had to raise that error to the circuit court in a motion to amend. The appellant filed no motion to amend and so failed to preserve the error.   
(Overview summary)
In the Interest of: B.W.R., Juvenile, P.W.R., Jr. vs. Juvenile Officer
Missouri Court of Appeals-Western District - WD87907

Attorneys

"Elvis" judge removed for politicking from the bench
The Commission on Retirement, Removal and Discipline found facts and determined whether judges were subject to discipline, and recommended a degree of discipline. Only the Supreme Court of Missouri decided what the discipline would be. The record refuted the respondent circuit judge’s allegations of commission misconduct. The Supreme Court of Missouri rejected the resolution negotiated between the commission and the respondent circuit judge. “Either [the respondent] is fit to serve or he is not.” The latter was the case. Offering uncompelled evidence in a circuit court action and dressing like Elvis Presley in court merited discipline. Political activity from the bench was “more than sufficient” for removal. The Supreme Court of Missouri removed respondent, effective immediately, and entertained no post-disposition motions.  
(Overview summary)
In re: The Honorable Matthew E.P. Thornhill, Respondent
Supreme Court of Missouri - SC101374

Civil

No identity of claim, no res judicata
The doctrine of res judicata precluded any later claim that was identical to an earlier claim. “A claim is the aggregate of operative facts giving rise to a right enforceable by a court[,]” including any related allegations or theories, but not any new facts arising since the earlier claim. In an earlier action for a writ of mandamus, relator State Tax Commission claimed that respondent county had assessed real property by unlawful procedure. Then the relator issued an order requiring the respondent to assess real property according to lawful procedure. In a later action for writ of mandamus, the relator claimed that the respondent failed to comply with that order. Failure to comply with the order was not at issue in the earlier action, so the claims were not identical, and the circuit court erred in dismissing the later claim under res judicata.  
(Overview summary)
State of Missouri, ex rel., State Tax Commission vs. County Executive of Jackson County, Missouri, Assessor of Jackson County, Missouri, Jackson County Board of Equalization, through its Members in their Official Capacities, Clerk of the Jackson County, Missouri, Legislature
Missouri Court of Appeals-Western District - WD87831

Contract

10-year statute of limitations applied
The time for filing contract actions could be five years generally for “contracts, obligations or liabilities, express or implied, except those” subject to the 10-year limit for “any writing … for the payment of money or property[.]” The latter applied to the plaintiff’s actions for breach of contract, suit on account, and unjust enrichment seeking unpaid bills under a written contract, and the former applied to the co-plaintiff who had no such written contract with the defendant. The co-plaintiff’s separate corporate existence, operation, services to the defendant, and billing supported application of “[t]he general rule of privity [that] is intended to protect contractual parties from obligations they have not voluntarily assumed, and thus a third party cannot acquire rights arising under a contract to which he or she is not a party.” The circuit court failed to apply the correct statute of limitations and erred in denying the defendant’s motion to dismiss the claims of the co-plaintiff. That motion could raise the statute of limitations, an affirmative defense waived if not pled, because the face of the petition alleged facts that showed how the statute applied.
(Overview summary)
Midwest Neurosurgeons, LLC, and Midwest Surgery Center, LLC, Respondents, v. Simon John Cort, Appellant
Missouri Court of Appeals-Eastern District - ED113376

Corporations and other legal entities

Dissolution of partnership affirmed
Circuit courts had “absolute discretion as to the credibility of witnesses and the weight of their testimony is a matter for the [circuit] court, and its findings on witness credibility are never reviewable by the appellate court.” Partnerships not subject to a partnership agreement were subject to statutes. Statutes provided that, on dissolution of a partnership, partners were due profits and losses in equal measure, and their capital contributions with interest on contributions greater than initially agreed, but only if in aid of the partnership. That did not apply to the appellant partners who, the circuit court found, had misused partnership assets for personal purposes. The appellants challenged those findings of fact, and the distribution of equity, as contrary to the weight of the evidence. That challenge required the appellants to explain why the evidence favoring the finding did not really support the finding. But the appellants’ point relied on did not challenge those findings. The appellants’ arguments challenged the findings not cited in the point relied on and was multifarious, and referred only to evidence contrary to the findings, not the “overwhelming” evidence supporting the findings. That was especially true when the appellants failed to offer reliable records. The appellants did not show any impropriety in the use of partnership assets in the litigation. The appellants did not support their challenges to the findings, so the appellants did not show that the circuit court misapplied the law when denying interest to the appellants.
(Overview summary)
Distler Brothers Farm PTR, Betty Distler, Doug Distler, and Beau Distler, Personal Representative for the Estate of Philip J. Distler vs. Donald and Jill Distler
Missouri Court of Appeals-Western District - WD87741

Criminal

Probable cause supported warrant for STD test
The United States Constitution’s Fourth Amendment required searches and seizures to have support in an affidavit showing that finding evidence of a crime was a fair probability. Fair probability could have support in reliable hearsay as shown by details corroborating the declarant’s statements as relayed by affiant to the issuing judge. The issuing judge did not err in finding probable cause. The Supreme Court of Missouri reversed the circuit court’s order quashing the warrant.
(Overview summary)
State of Missouri, Appellant, vs. Israel Barrera, Respondent
Supreme Court of Missouri - SC101178

Plain error review described, no prejudice from variance
Plain error review was available when the appellant alleged an obvious error that affected a basic right, leading to a manifest injustice or miscarriage of justice if uncorrected. Even then, plain error review was discretionary based on factors including the suitability of a claim for plain error review. The appellant charged error in an instruction that substituted “at” with “into.” That error was not obvious. And “To shoot ‘into’ something, one must also necessarily shoot ‘at’ that same thing, [so] the jury could not have found [that the appellant] shot ‘into’ the vehicle without shooting ‘at’ that same vehicle.” The Supreme Court of Missouri declined plain error review and affirmed the convictions.
(Overview summary)
State of Missouri, Respondent, vs. Isis S. Jones, Appellant
Supreme Court of Missouri - SC101104

Felon shown to be in possession of a firearm
The elements of unlawful use of a weapon by being a felon in possession included possession. Possession could be actual or constructive, and sole or joint, and was subject to proof by circumstantial evidence including easy reach and convenient control. The firearm was under the car seat, with handle and magazine protruding, in which the defendant was sitting. That evidence supported a finding of actual possession. Other occupants’ lesser access did not negate the defendant’s access. The defendant’s flight from arresting officers also showed consciousness of guilt.
(Overview summary)
State of Missouri, Respondent, vs. Jayelyn Z. Rivers, Appellant
Missouri Court of Appeals-Eastern District - ED113150

Bail mandated
Writs of mandamus issued only to compel ministerial duties, duties as to which there was no discretion in the method of execution. The criminal defendants had a constitutional right to bail in all cases, except capital murder, on relevant conditions including a “bond to secure the appearance of the defendant at the trial” and to protect crime victims. “The Supreme Court of Missouri has made clear, ‘[b]ail is not to be used as a means of punishment.’” The relator was charged with involuntary manslaughter in the second degree and subject to no allegations describing a flight risk or threat to public safety. The Missouri Court of Appeals made permanent its writ of mandamus and directed the circuit court to “conduct a bond hearing immediately” and set conditions including a bond accordingly.  
(Overview summary)
Richard Holden, Relator, v. The Honorable Timothy Miller, Associate Circuit Judge, 23rd Judicial Circuit, Respondent
Missouri Court of Appeals-Eastern District - ED114079

Plain error review declined, not waived
Plain error review was not subject to waiver but was the appellate courts’ to grant or deny as an exercise of discretion depending on the facts. The appellant sought plain error review of the circuit court’s failure to tender an instruction an instruction curative of a misstatement of law in the State’s closing argument. But the appellant did not seek any remedy nor object to the misstatement. The appellant also sought plain error review of the circuit court’s failure to give a self-defense instruction. The appellant offered substantial evidence supporting self-defense, but relied on a trial strategy inconsistent with self-defense, and declined opportunities to seek a self-defense instruction. Those events could have been reasonable trial strategy, which was rarely suitable for plain error review. The Supreme Court of Missouri declined plain error review and affirmed appellant’s convictions.
(Overview summary)
State of Missouri, Respondent, vs. Richard Neil Burkett, Appellant
Supreme Court of Missouri - SC101071

Jury findings on prior and persistent status
When the defendant argued that bond violations were related to a mere change of address, the defendant opened the door to rebuttal evidence of other bond violations. Evidence of escape was not conclusive of, but was admissible to show, consciousness of guilt. That applied to the defendant’s severance of his ankle monitor. Reversal based on erroneous evidentiary rulings possible only if outcome-determinative, which the defendant did not show as to various evidence related to firearms, because of other “weighty and material evidence” of guilt. The defendant waived any error in the instructions on voluntary manslaughter by proffering them; invited error waived even plain error review. The defendant had the right to jury determinations on prior and persistent offender status but “reliev[ed] the jury from making this finding and waiv[ed]” plain error review by admitting to that status in a pre-trial conference.
(Overview summary)
State of Missouri, Respondent, v. Mark R. Perry, Appellant
Missouri Court of Appeals-Eastern District - ED113016

Imperfect self-defense instruction discussed
When the circuit court learned that a juror described self-defense as double-talk, the circuit court investigated and determined that no pre-judgment had occurred. “[W]e agree fully with the trial court’s handling.” The rule against hearsay barred out-of-court statements offered for the truth of the matter stated. Out-of-court statements not offered for the truth of the matter stated were not hearsay, like an exhortation directing the defendant to deploy a firearm. Imperfect self-defense’s elements included "an unreasonable belief that the [defendant’s] conduct was necessary to save his own life.” On a charge of murder in the first degree, the theory of imperfect self-defense negated the mental state of premeditation and showed a mental state of recklessness, supporting an instruction on the lesser included offense of involuntary manslaughter in the first degree. The circuit court did not err in submitting the approved instruction for involuntary manslaughter in the first degree and refusing the defendant’s non-approved instruction for recklessness. In any event, recklessness was inapplicable when the jury found that defendant acted knowingly by committing murder in the second degree.
(Overview summary)
State of Missouri, Respondent, vs. Emonne W. Dillon, Appellant
Missouri Court of Appeals-Eastern District - ED112946

No ex post facto problem when changing parole eligibility
Constitutional provisions barred ex post facto application of laws: laws increasing criminal punishment for conduct for past conduct. That did not describe a statutory amendment governing parole because parole remained discretionary, so any conceivable harm to the plaintiff inmate was speculative. The circuit court did not err in granting judgment on the pleadings for defendant Missouri Department of Corrections.
(Overview summary)
Maurice R. Charles vs. Department of Corrections
Missouri Court of Appeals-Western District - WD87655

Evidence

Expert testimony was not hearsay
The rule against hearsay generally barred “any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value.” It did not bar an expert from using medical records to form and testify to the expert’s opinion. The foundation for an expert’s testimony required the use of data ordinarily relied on by such experts. “[A]s long as the testifying expert does not discuss the absent expert’s opinions or conclusions, and the absent expert’s report is not admitted into evidence – neither of which occurred here – such testimony does not violate the Confrontation Clause, either[,]” so the Missouri Court of Appeals declined plain error review. No one offered the medical records, and the expert declared the opinion in court, not out of court. The circuit court did not commit plain error by failing to intervene sua sponte and exclude the expert’s testimony.
STATE OF MISSOURI, Plaintiff-Respondent v. HUNTER KELLEY, Defendant-Appellant
Missouri Court of Appeals-Southern District - SD38647

Family

One basis for termination of parental rights was enough
Arguments not raised in a point relied on were abandoned and rulings not shown in the record were no basis for reversal. A single statutory basis was sufficient to terminate the appellant parent’s parental rights if termination was in the child’s best interests. Any challenge to the circuit court’s findings had to appear in a motion to amend judgment. Even if the parent had met that requirement, the parent would still lose on appeal because clear, cogent, and convincing evidence showed that the children were under the juvenile division’s authority for the appellant parent’s neglect during the last year and that the neglect — caused by drug addiction — continued with no improvement likely. No additional or alternative findings were necessary. The same evidence preponderated in favor of a conclusion that termination was in the children’s best interest.
(Overview summary)
In the Interest of: S.K.J., A.L.L., A.L.L., and A.L., Juveniles; and Juvenile Officer vs. J.B. defendant and A.L.
Missouri Court of Appeals-Western District - WD87944 consolidated with WD88052, WD88053, and WD88054

Insurance

Uninsured motorist exclusion applied
The Missouri Financial Responsibility Law required motorists to have minimum coverages and required automobile insurers to provide coverage substituting for the coverage a defendant should have had but did not. The law also allowed stacking with limitations to the minimum coverage. That limitation was not ambiguous when read with a standard integration clause nor with the policies’ declaration pages. “Declarations pages contained within insurance policies do not grant any coverage, as they are introductory and merely summarize the essential terms of the policy.” The declaration pages were also unambiguous in defining “your car” as one named vehicle per respective policy.
(Overview summary)
Mandie Brown, Appellant, v. State Farm Mutual Automobile Insurance Company, Respondent
Missouri Court of Appeals-Eastern District - ED113169

Personal injury

Actual malice discussed
Summary judgment was due a defendant who established facts beyond genuine dispute negating any one element of the plaintiff’s theory. The appellant plaintiff’s theory was defamation, and the plaintiff was an elected official, so the plaintiff had to show actual malice. Actual malice meant a false statement made with at least reckless disregard for the truth or falsity of a statement when the defendant made the statement. “Proof of falsity is not proof of malice.” The appellant failed to refer to the record for evidence of actual malice. The Human Rights Act provided liability for employers, but the defendant was not an employer since the plaintiff’s employer was the State. On a claim for intentional infliction of emotional distress, the elements included the defendant’s sole purpose to cause emotional distress, so a jury instruction requiring such a finding did not misstate the law.
(Overview summary)
Karla K. Allsberry, Appellant, vs. Patrick S. Flynn, et al., Respondents
Missouri Court of Appeals-Eastern District - ED113270

Untimely filings supported summary judgment
Despite the appellant plaintiff’s failure to comply with briefing rules related to points relied on and argument, the Missouri Court of Appeals could understand the plaintiff’s arguments, and so ruled on them. The defendant could prevail on summary judgment by showing that the plaintiff could not support some element of the plaintiff’s claim. The plaintiff’s claim was professional negligence, of which the elements included the defendant’s failure to meet a professional standard, which required expert testimony. No expert could testify in support of the plaintiff’s claim, the defendant’s summary judgment motion charged, and the circuit court set the parties’ consented deadline for a response identifying the plaintiff’s expert. A motion to continue an evidentiary hearing did not extend that deadline, and the plaintiff missed the deadline by over four months, so the defendant’s allegations were deemed admitted.
(Overview summary)
Megan Jernigan a/k/a Megan Krause, Appellant, v. Mercy Hospital East Communities, et al., Respondents
Missouri Court of Appeals-Eastern District - ED113609

Post-conviction

No promises were made
On a plea of guilty, post-conviction relief was available only if the plea was less than knowing, voluntary, and intelligent. Such was the case, the movant alleged, because plea counsel had misadvised the movant that long-term drug treatment was guaranteed. It was not guaranteed, and plea counsel did not advise the movant otherwise, according to the movant at the plea hearing and plea counsel at the evidentiary hearing on the motion.
(Overview summary)
Edward C. Koenig, Appellant, v. State of Missouri, Respondent
Missouri Court of Appeals-Eastern District - ED113363

Post-conviction relief

Notice was not appointment
Late filing waived all relief with a few exceptions. Exceptions included abandonment by post-relief counsel, but that doctrine applied only to appointed counsel. It did not apply to volunteer counsel even from the public defender’s office. “[T]he motion court’s docket entry in the post-conviction case sent to the public defender’s office only advised the office that [the movant] had filed a pro se post-conviction motion and did not serve as an appointment[.]” Volunteer post-conviction counsel filed an amended motion late, so the circuit court lacked authority to rule on it, and the initial motion was still before the circuit court. Lacking a final judgment, the Missouri Court of Appeals dismissed the appeal and remanded the action to the circuit court.
(Overview summary)
Demetrius L. Davis, Appellant, vs. State of Missouri, Respondent
Missouri Court of Appeals-Eastern District - ED112275

Hearing required on unrefuted allegations
An evidentiary hearing was necessary when the record did not refute allegations that described a claim for ineffective assistance of counsel. The elements of such a claim included substandard performance resulting in prejudice. The movant pled those elements by alleging that the movant entered a guilty plea, in reliance on plea counsel’s misadvice, on sentencing and parole eligibility, which the circuit court failed to correct. The record did not refute those allegations so an evidentiary hearing was due.
(Overview summary)
Deonta Johnson, Appellant, v. State of Missouri, Respondent
Missouri Court of Appeals-Eastern District - ED113384

Real estate

Termination provisions read strictly
Appellate courts affirmed judgments that used the wrong reason to reach a correct result. Actions for unlawful detainer determined only the right to immediate possession. Immediate possession was the right of a tenant under a written lease until termination of the lease. The parties’ lease allowed termination without notice or opportunity to cure when the tenant failed to pay rent for four months. Such provisions were subject to strict application and the landlord alleged only three months without payment of rent.
(Overview summary)
Capitol South, Inc., Appellant, v. Concord Fitness MO, LLC, Respondent
Missouri Court of Appeals-Eastern District - ED113250

Appellate

Deficient brief required dismissal 
Appellants pro se and represented had to be subject to the same law, including the rules governing appellate briefing, for the sake of impartiality. Advocating on the appellant’s behalf would be inevitable, perhaps on the wrong theory, if the Missouri Court of Appeals tried to construe the appellant’s own incomplete advocacy. The appellant’s statement of facts failed to set forth the facts relevant to the appellant’s theory on appeal. The appellant’s points relied on cited authority but failed to allege facts on which such authority required reversal. Those deficiencies precluded appellate review, so the Court of Appeals dismissed the appeal. 
(Overview summary)
Vance Clark, Appellant, v. Benjamin Aranda, Respondent.
Missouri Court of Appeals-Eastern District – ED113541

Civil

Statute of limitations waived 
“The statute of limitations is an affirmative defense, and as such, it must be raised in the responsive pleadings.” In an action under the Missouri Second Mortgage Loan Act, the defendants raised a statute of limitations but never raised the statute applicable to an action under the act, and for the defendants to cite the applicable authority did not require the plaintiffs to file a motion for a more definite and certain statement. The circuit court nevertheless granted the defendants' summary judgment in part, so the Missouri Court of Appeals reversed that judgment and remanded the action. 
(Overview summary)
Jeffrey Cox, et al. vs. Mortgage Asset Securitization Transactions, INC. f/k/a Paine Webber Mortgage Acceptance Corporation IV
Missouri Court of Appeals-Western District – WD87645

Improper instruction supported new trial 
Whether an instruction deviated from approved language was a matter of law subject to de novo review. Such deviation raised a presumption of prejudice but was a matter of fact on which appellate courts deferred to circuit courts, subject to appellant showing an abuse of discretion. In drafting an instruction to ignore the defendant’s impeachment evidence, the circuit court had to define technical terms for the jury, like offense and conviction. “[T]he attempt to cure improper impeachment with an improper instruction resulted in prejudicial error.” The circuit court granted the defendant’s motion for new trial and the Missouri Court of Appeals affirmed that ruling. 
(Overview summary)
Shahidah Hazziez vs. City of Kansas City, Missouri
Missouri Court of Appeals-Western District – WD87219

Contracts

Capacity shown, no undue influence shown 
The circuit court barred the plaintiff appellant from testifying about why the plaintiff was acting as guardian and conservator for the plaintiff’s father, but that testimony was cumulative of other evidence and unduly prejudicial due to the timing of events, and the record on appeal was insufficient to show any prejudice. In any transaction, a presumption of undue influence arose only under a confidential or fiduciary relationship and otherwise required evidence that a party was robbed of their will, which neither long-time acquaintance nor bad financial decisions respectively showed. In a contract for the sale of real property, buyer’s consideration consisted of a promissory note that allowed the parties to undo the transaction, but did not otherwise relieve one party of any obligations, so that consideration was not illusory, and the contact was not unconscionable. Unconscionability was a matter of law for the circuit court, not for the jury, because it was a matter of contract interpretation. Instructions describing the burden of proof on contractual capacity were both affirmative, rather than affirmative and converse, but did not shift the burden of proof from the plaintiff seeking rescission. Stating “no objection” constituted abandonment of any challenge to a hammer instruction. The circuit court entered judgment for the seller and the Missouri Court of Appeals affirmed that judgment.
(Overview summary)
Cody Joseph Enderle, Guardian of the Person of Charles Fredrick Enderle, II, an Incapacitated Person, and Conservator of the Estate of Charles Fredrick Enderle, II, a Disabled Person, Appellant, v. GERCKEN KELSEY, LLC AND RICHARD H. GERCKEN
Missouri Court of Appeals-Western District – WD87646

Criminal

Removal from registry affirmed 
Circuit courts could remove persons from Missouri’s sex offender registry. The registry had to list persons who committed certain offenses. The offenses, if committed in another state, were defined by ages of victim and perpetrator, use of force, and harm. The petitioner committed certain offenses in Indiana. But the petitioner did not have the required age difference with the victims, and the victims did not meet the age requirement, for registration. Also, the Indiana offenses were of strict liability and did not involve force or harm. The petitioner was exempt from registration, so the circuit court ordered the petitioner’s name removed, and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
S.C., Respondent, vs. Gabe Gore, City of St. Louis Circuit Attorney, Chief Robert J. Tracy, St. Louis Metropolitan Police Department, Chief of Police, Defendants, Colonel Michael Turner, Superintendent Missouri State Highway Patrol, Appellant.
Missouri Court of Appeals-Eastern District – ED113332

No state’s disclosure of witness was necessary 
On written request of the defendant, the State had to disclose any witnesses in rebuttal of an alibi, but only if the defendant disclosed the alibi. The defendant did not disclose the time and place of the alibi, nor the witness testifying to the alibi, so the State produced an undisclosed witness. “[T]he State was unfairly surprised by [defendant]’s failure to disclose specific information about his alibi defense [, so] the State’s “rebuttal witness[] need not be disclosed.” And the defendant’s alibi covered less than the relevant time so the Missouri Court of Appeals did not address whether prejudice resulted. The Court of Appeals affirmed the conviction. 
(Overview summary)
State of Missouri, Respondent, vs. Shawn Ray Hollingshead, Appellant.
Missouri Court of Appeals-Eastern District – ED112762

Evidence

Value shown 
State witnesses identified the defendant from screenshots from a surveillance video recording, and the defendant objected that the original video was not in evidence under the best evidence rule. But the best evidence rule only applied when the original’s content was at issue, and only the screenshots were in evidence, because that was all the witnesses testified about. “The fact that they derived from a surveillance video is immaterial to how they were used at trial.” The elements of stealing class C felony included the value of the things stolen. “An owner without experience in evaluating an item’s value can provide ‘substantial evidence of an item’s worth,’ so [an e]mployee’s experience in valuing [the stolen items] makes his testimony even more significant.” The Missouri Court of Appeals declined plain error review of the defendant’s enhanced sentence as a persistent offender, though persistent offender status was absent from the State’s pleadings, because the defendant had actual notice that the State was seeking that enhancement. The Court of Appeals affirmed the conviction. 
(Overview summary)
State of Missouri, Respondent, v. Eric A. Pritchett, Appellant.
Missouri Court of Appeals-Eastern District – ED112852

Value not shown 
The elements of stealing class A misdemeanor included the value of the things stolen, which was subject to proof by evidence of purchase price, age, and condition. None of that was in the record. The State showed that defendant stole automobile key fobs from a dealership but did not even show that the dealership owned them. Too many inferences were necessary even for the jury to use its own knowledge of an automobile key fob’s replacement value. The Missouri Court of Appeals declined plain error review of the defendant’s enhanced sentence as a prior offender, though prior offender status was absent from the State’s pleadings, because the defendant had actual notice that the State was seeking that enhancement. The Court of Appeals remanded the action for entry of a finding of guilt on the lesser included offense of stealing class D misdemeanor. 
(Overview summary)
State of Missouri, Respondent, v. Eric A. Pritchett, Appellant.
Missouri Court of Appeals-Eastern District – ED112851

Family

Abuse and neglect supported TPR 
Because parental rights were fundamental, the Missouri Court of Appeals exercised its discretion in favor of reviewing deficient arguments and performing plain error review. Neither adverse rulings, nor presiding at the trial of multiple actions involving the same persons, overcame the presumption of judicial impartiality and showed bias. Parental rights were subject to termination when, in the child’s best interests, on a finding of specified grounds. Such grounds included abuse and neglect, which the State showed with clear, cogent, and convincing evidence that the appellant parent committed severe and recurrent physical abuse on her children. The circuit court’s findings, including its projections of future events from past events, were not against the weight of de minimis evidence of efforts at reform. 
(Overview summary)
Paul W. Bringer, et al., Appellants, v. Stephen Bringer, et al., Respondents.
Missouri Court of Appeals-Eastern District – ED113352

Party’s interview request did not govern GAL 
On motions to modify custody, circuit courts could appoint guardians ad litem, whose duty was to advise the circuit courts on children’s best interests. Guardians ad litem were subject to disqualification on a party’s motion for good cause. Guardians ad litem had the duty to interview the child and “persons having contact with or knowledge of the child in order to ascertain the child’s wishes, feelings, attachments[,] and attitudes.” That language did not require the guardian ad litem to interview anyone for the purpose of impeaching the movant’s adverse party. The circuit court’s denial of a motion to remove the guardian ad litem was not an abuse of discretion, at least not where the movant did not show that the child’s best interest suffered, or what information would have been revealed, and the movant could have called any prospective interviewee as a witness. The Missouri Court of Appeals affirmed the judgment of modification. 
CRAIG ALLEN RICE, Respondent v. MADASYN SCARLETT, Appellant
Missouri Court of Appeals-Southern District – SD38873

Personal injury

Sovereign immunity and official immunity applied 
Motions for dismissal, or for judgment on the pleadings, converted to motions for summary judgment when they included matters that were outside the pleadings and not excluded by the circuit court. Sovereign immunity protected the State and its political subdivisions from tort liability with exceptions that included self-insurance. Self-insurance did not include defendant governing body’s statutorily-required budget line item for paying judgments not covered by sovereign immunity. Official immunity protected employees from liability for discretionary exercises of duty done without bad faith. Bad faith included an intent to injure that the plaintiff did not allege. Discretion meant room for judgment in carrying out an official duty. The plaintiff cited policies governing the conduct of the defendant police officers that either did not apply or retained a degree of discretion in the defendants. The summary judgment record entitled the defendants to immunity from suit, so the circuit court entered judgment for the defendants and the Missouri Court of Appeals affirmed. 
(Overview summary)
An'Tonique James vs. The School District of Kansas City 33, et al.
Missouri Court of Appeals-Western District – WD87823

Post-conviction

Amended motion was late, only initial motion was before the courts 
Retained counsel represented the movant on direct appeal and on post-conviction relief. Any resulting conflict of interest notwithstanding, the retained counsel was not within the abandonment doctrine, so the retained counsel’s late filing of an amended motion waived relief under the amended motion. Nevertheless, the circuit court ruled on the amended motion, which did not include all claims in the initial motion. Therefore, the judgment was not final. The Missouri Court of Appeals dismissed the appeal, remanded the action to circuit court for a ruling on the initial motion, and ordered the appointment of new counsel. 
(Overview summary)
Billy Wagner, Movant/Appellant, v. State of Missouri, Respondent/Respondent.
Missouri Court of Appeals-Eastern District – ED113083

Real estate

Inverse condemnation judgments turned on notice 
In an action for inverse condemnation, the elements included notice of damages from the plaintiff landowner to the defendant political subdivision, for which notice to some other property owner plaintiffs was no substitute. Those other plaintiffs sought only money damages for a partial taking only, not a determination of title for a total taking. Therefore, a submissible case for inverse condemnation by total taking was unnecessary, and the judgment was not defective for lack of a reasonably certain legal description nor transfer of title. A spoken motion for directed verdict preserved an argument, also raised in a motion for judgment notwithstanding the verdict, for appeal. While post-judgment motions were pending related to the original judgment, the circuit court timely entered an amended judgment that started the time for filing and ruling on a separate round of post-judgment motions related to that amended judgment, and for filing a notice of appeal. Appellate courts did not have to consider amicus’s arguments not raised by appellants. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary)
Mark and Sherry Davis, and David and Denise Kamm, respondents; Kevin Laughlin, appellant-respondent vs. City of Kearney, Missouri, respondant-appellant
Missouri Court of Appeals-Western District – WD87389 consolidated with WD87408, WD87467, and WD87497

Interest not recorded had priority over mortgage 
In an action to enforce a contract, courts must first determine whether a contract existed and then determine its provisions. Provisions were ambiguous only on their face, and only then was construction required, and only then was parol evidence admissible in aid of construction. The elements of a contract included consideration. Consideration had to exist for an option provision but a single consideration for the contract as a whole could also constitute consideration for the option. The elements of a contract also included mutual agreement, meaning a meeting of the minds, but determined objectively by outward manifestations “[d]isregarding either party’s secret surmise or undisclosed assumption [.]” The circuit court erred in admitting and relying on testimony and concluding that no meeting of the minds occurred. All joint contracts were really joint and several contracts, meaning that each promisor had an option that they could exercise alone, so notice was sufficient to exercise the option even though signed by fewer than all plaintiff option holders. The refusal of the defendants, except one who could not perform without the others, constituted anticipatory breach. The holders of the option did not record that interest and holder of a second deed of trust recorded its interest, but the holder on the second deed of trust had actual notice of the option, which gave the option priority over the second deed of trust. 
(Overview summary)
Paul W. Bringer, et al., Appellants, v. Stephen Bringer, et al., Respondents.
Missouri Court of Appeals-Eastern District – ED113352

Tax

Tax lien expired 
Various remedies were available for collecting on tax debts and a time limitation on one remedy did not extinguish the debt, leaving other remedies available. Available remedies included filing certificates of tax liens with circuit clerks. Such liens were like default judgments, including as to execution, which were “presumed to be paid and satisfied” after a specified time, unless revived or paid upon. No payment or revival on the director of revenue’s lien, filed with the circuit clerk, occurred within the specified time, so the lien expired. The circuit court denied a motion to quash garnishment, so the Missouri Court of Appeals reversed the judgment, and remanded the action with instructions to quash the garnishment. 
(Overview summary)
Vance Clark, Appellant, v. Benjamin Aranda, Respondent.
Missouri Court of Appeals-Eastern District – ED113541

Attorneys

Capacity of representation determined fees due 
“[W]hen an attorney-client relationship was formed with a client in his capacity as personal representative for an estate, any legal duty owed to the personal representative did not also extend to him in his individual capacity ‘as th[o]se capacities are distinct parties in the eyes of the law.’” The client was a possible heir. In that capacity, as a possible heir, the attorney represented the client. The client received an appointment as personal representative under supervised administration. Supervised administration required circuit court-ordered approval for certain transactions. That included contracts so continuing litigation could not, alone, impliedly ratify the attorney’s representation of the estate. That also included ownership of real estate, with concomitant liability for real property taxes, which the circuit court never approved. The circuit court awarded fees for representing the client as personal representative, but not for representing the client as a possible heir, and denied reimbursement of amounts advanced for real property taxes. The Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Brooke E. Harris vs. John Killian, Public Administrator as Personal Representative of the Estate of Gary Tauvar 
Missouri Court of Appeals-Western District – WD87791

Criminal

Circuit court control of defendant’s image discussed 
Evidence of the defendant’s neck tattoo stating “cut here” was logically relevant when the victim had her throat cut. That evidence was legally relevant because any prejudice was not unfair and was slight, especially compared to the defendant’s detailed confession. The defendant did not show any abuse of discretion when the circuit court barred the defendant from wearing the defendant’s National Guard uniform at trial. The Missouri Court of Appeals confirmed the convictions. 
STATE OF MISSOURI, Respondent v. ERIC SCOTT NANNEY, Appellant 
Missouri Court of Appeals-Southern District - SD38776

Evidence

No plain error in admission of evidence
Evidence of uncharged conduct — “watch[ing] pornography with daddy-daughter, teen, or young themes” and allowing the minor victim to smoke marijuana and drink alcohol — was admissible as propensity evidence. The elements of plain error review included outcome-determinative error. That could not describe the admission of the victim journal entries that were cumulative of properly admitted evidence. Nor could it describe testimony describing the absence of evidence incriminating the defendant that was more probative of an offense as to which the jury acquitted the defendant. On that charge, the Missouri Court of Appeals remanded the action for the circuit court to correct its record on the other charge nunc pro tunc to show acquittal rather than dismissal. On the other charge, the Court of Appeals affirmed the conviction. 
STATE OF MISSOURI, Respondent v. AARRON MATTHEW BITTICK, Appellant 
Missouri Court of Appeals-Southern District - SD38645

Family

No award to non- party 
Due process concerns required an opportunity to be heard for any person affected by an award. In an action for dissolution of marriage, a property division required the circuit court to divide the marital property between the spouses, and third parties with an interest in marital property were subject to joinder and could intervene. That did not happen, and the spouses were the only parties, yet the circuit court awarded marital property to a non-party creditor: a trust. That ruling misapplied the law, so the Missouri Court of Appeals reversed and remanded the action. 
(Overview summary) 
In RE the Marriage of: James A. Starke vs. Deborah S. Starke 
Missouri Court of Appeals-Western District – WD87819

Local government

Official immunity established, reimbursement not established 
Summary judgment was due a party who established, beyond genuine dispute, facts that entitled that party to judgment. Public officials had official immunity from liability for negligent performance of discretionary tasks in the course of official duties, but not for ministerial tasks. The difference between ministerial and discretionary was “room whatsoever for variation in when and how a particular task can be done[.]” The task of obtaining a bond for an ambulance district was discretionary and failure to accomplish that task did not waive official immunity. Official immunity also did not apply to anything done with bad faith or malice, but that meant an intent to injure the plaintiff former employee, so it was insufficient for the plaintiff to allege merely that the defendants’ conduct was “willfully wrongful and in conscious disregard for the rights of Plaintiff[.]” The circuit court granted summary judgment for the defendant officials, and the Missouri Court of Appeals affirmed that judgment. As to whether the district owed the plaintiff reimbursement for expenses incurred in defending criminal charges, that depended on whether the plaintiff incurred the expenses in the plaintiff’s personal or official capacity, which neither party established beyond genuine dispute. The circuit court erred in granting summary judgment for the plaintiff, so the Court of Appeals reversed that part of the judgment. 
(Overview summary) 
Tracy Rank vs. Pettis County Ambulance District, et al. 
Missouri Court of Appeals-Western District – WD87706 consolidated with WD87707

Post-conviction

Pleading was insufficient 
An evidentiary hearing was necessary only if the movant alleged facts unrefuted by the record that, if true, showed that relief was due. The movant’s theory was ineffective assistance of trial counsel by failure to call a witness. Failure to call a witness was grounds for relief only if “(1) counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness’s testimony would have produced a viable defense.” The movant alleged that impeachment witnesses overheard a telephone conversation showing that the victim fabricated the charge against the movant. No hearing was needed before denying relief on those allegations because they described none of the elements of ineffective assistance of trial counsel by failure to call a witness. Also, the movant failed to describe any exception to the rule barring hearsay that would make the alleged testimony admissible. The Missouri Court of Appeals affirmed the judgment. 
JOHNNY LEE COOPER, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals-Southern District - SD38911

Guilty plea was okay
The record supported a finding that plea counsel advised the movant of the full range of sentences possible, and the movant understood the consequences of pleading guilty, so the Missouri Court of Appeals deferred to those findings and the conclusion that the movant pleaded guilty knowingly, intelligently, and voluntarily. The elements of ineffective assistance of counsel included prejudice from failure to do what a lawyer ordinarily did, which allegations were negated by a reasonable trial strategy. Reasonable trial strategy at sentencing included omitting a witness whose testimony would have been cumulative. Failure to offer cumulative evidence never showed that counsel was ineffective. The circuit court denied relief and the Court of Appeals affirmed that judgment. 
AUDRA JOYCE, Petitioner-Movant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals-Southern District - SD38815

Administrative

Agency properly dismissed moot claims 
Like judicial tribunals, administrative tribunals had to consider whether claims were justiciable, including whether a claim was moot. Moot claims included claims were no controversy remained, so a ruling would constitute an advisory opinion on hypothetical facts, which agencies could not issue. On a motion to dismiss for mootness, the commission could consider facts outside the record. The complainants sought relief from the Public Service Commission as to a public utility’s attempts to exercise easement rights on the complainants’ land so, when those attempts ceased, no controversy remained. Allegations of other past conduct exceeding the utility’s certificate of convenience and necessity did not change that result. The commission dismissed the complaints and the Missouri Court of Appeals affirmed the commission’s decision. 
(Overview summary) 
Missouri Office of the Public Counsel vs. Evergy Missouri West, INC. d/b/a Evergy Missouri West and Public Service Commission of the State of Missouri 
Missouri Court of Appeals-Western District – WD87860

ADR

Standards for motions to compel arbitration discussed 
Arbitration was a matter of agreement and whether a valid agreement existed was a matter of fact on which the circuit court’s findings found deference in appellate courts even when made solely on documentary evidence. Both the Federal Arbitration Act and the Missouri Uniform Arbitration Act applied Missouri contract law, which required mutual assent, and the circuit court was unpersuaded by the movant’s evidence related to electronic signatures. “It was for the trial court to sort out these factual discrepancies, and ‘[circuit] courts are free to believe any, all, or none of the evidence presented[.]’" On that dispute, the parties’ presentation and circuit court’s consideration of exhibits and briefing made an evidentiary hearing unnecessary. 
(Overview summary) 
Connie Haworth vs. Guest Services, Inc., et al. 
Missouri Court of Appeals-Western District – WD87623

Mediated settlement agreement was enforceable 
Plaintiff appellants brought a federal Fair Credit Reporting Act action in circuit court, which the defendants removed to federal district court, where the parties entered into a mediated settlement. Pending disposition, federal case law held that the plaintiffs’ petition was inadequate for failure to allege concrete harm. That failure, on transfer back to circuit court, was the basis for the circuit court’s dismissal of the action and refusal to enforce the settlement for lack of standing. Standing was a requirement for the federal district court’s subject matter jurisdiction, while the subject matter jurisdiction of Missouri’s circuit courts was plenary under the Missouri Constitution, so standing was merely a prudential consideration for a circuit court’s authority to grant relief. So, without the plaintiff’s standing to bring the action under the act, the circuit court lacked authority to grant relief, and the circuit court correctly dismissed the action. But the action to enforce the settlement agreement was collateral to the action under the act. The compromise of claims honestly contested constituted sufficient consideration. A fixed amount for such settlement constituted such an agreement’s essential provisions. Neither an agreement to further formalize, nor federal court silence on, the provisions changed that result. The Missouri Court of Appeals reversed the dismissal of the enforcement action and remanded that action for a settlement approval hearing. 
(Overview summary) 
Ria Schumacher, Individually and on Behalf of Others vs. SC Data Center, INC., d/b/a Colony Brands 
Missouri Court of Appeals-Western District – WD87722

Appellate

Citations not found 
Rulings subject to appeal included specified interlocutory orders, final judgments, and special orders after final judgment. The last included orders enforcing the provisions of dissolution decrees. Citations to authority that did not exist, and references to the record for findings that did not occur, preserved nothing for review. Moreover, the appellant failed to show how any law required reversal on any ruling, and so failed to “provide sufficient analytical support for the claim of reversible error.” The Missouri Court of Appeals dismissed the appeal. 
(Overview summary) 
Betsy L. Reeves vs. Elisabeth M. Sobczak 
Missouri Court of Appeals-Western District – WD87729

Proposed judgment invited error 
The appellants waived error as to the appearance of a witness whose appearance the appellants did not seek to enforce. No reversible error occurred in excluding testimony that was cumulative of other testimony. A motion challenging the verdict did not preserve a challenge to amount of the award. No award of costs was required when both sides prevailed on some claims and failed on others. The appellants and cross-appellants waived error as to matters not included in a proposed judgment: contempt for violation of a preliminary injunction and the format of the award. “Thus, any error was invited and not subject to review on appeal.” The Missouri Court of Appeals affirmed the judgment. 
(Overview summary) 
Tycon Company, LLC and Cierra R. Williams vs. Forest E. Tyson, Jr., et al. 
Missouri Court of Appeals-Western District – WD86810 consolidated with WD86829

Appeal of summary judgment required facts of summary judgment 
The components of the appellant’s brief included a statement of the facts relevant to the appellant’s theory of reversal. When the judgment appealed was a summary judgment, the relevant facts were the numbered paragraphs of undisputed material facts, “the movant’s [statement of undisputed material facts ('SUMF')] and the non-movant’s response, the non-movant’s additional SUMF and the movant’s reply, and the movant’s supplemental SUMF and the non-movant’s surreply” and no others. Without the relevant facts, the Missouri Court of Appeals could not apply the law and dismissed the appeal. 
TODD J. and CAREY M. CROSSLEY, Plaintiffs-Appellants v. KING CONSTRUCTION, INC., et al., Defendants/Third-Party Plaintiffs-Respondents v. MUD BROTHERS STUCCO, INC. A/K/A or D/B/A OZARK CULTURED STONE, LLC, also F/K/A MUD BROTHERS STUCCO, INC., Third-Party Defendant 
Missouri Court of Appeals-Southern District – SD38899

Civil

No fraud shown on motion to set aside 
The law favored motions to set aside default judgments. One provision allowed circuit courts to set aside default judgments on elements that included good cause for the default. Good cause included negligence, but not recklessness, which described the movant’s “conscious choice to ignore the litigation” in the pending action for dissolution of marriage and hope for reconciliation. Another provision allowed circuit courts to set aside default judgments on elements that included a default induced by fraud. Fraud meant common law fraud, not merely false evidence, and respondent’s evidence at the evidentiary hearing on the motion showed that respondent would have prevailed honestly in an evidentiary hearing on the dissolution. “[Movant] cannot use [a motion to set aside] to litigate the contested issue of ownership of the Company in light of his conscious choice to ignore the petition for dissolution.” For that reason, the circuit court did not err in excluding the movant’s proffered evidence of contributions to that company. The movant did not argue in circuit court the allegations cited on appeal. Those allegations did not constitute a claim on non-marital property. And even if they did, they did not relate to setting the default judgment aside. The circuit court denied the motions and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Randa M. Techtow vs. Jesse T. Techtow 
Missouri Court of Appeals-Western District – WD87315 Consolidated with WD87320

Consumer

Recovery under contract but not MMPA 
In an action under the Missouri Merchandising Practices Act for selling services by using a false promise, the plaintiff had to show that the the defendant intended never to perform on the promise before or during their working relationship, not simply that the defendant breached the parties’ contract. On a breach of contract claim, the record included the plaintiff homeowner’s testimony as to the value of that property and supported the award. The Missouri Court of Appeals reversed the judgment for the plaintiff under the act and affirmed the award of damages for breach of contract. 
(Overview summary) 
Susan Brands, Respondent, v. Savvy Surrounding Style, LLC, Appellant. 
Missouri Court of Appeals-Eastern District – ED112731

Criminal

No Faretta hearing, new trial required 
The right to counsel included the right to waive counsel. Waiver of counsel was valid only if knowing, intelligent, and voluntary as determined by a circuit court’s colloquy during a Faretta hearing and a written waiver of counsel. The absence of a Faretta hearing was subject to review even without preservation. The circuit court failed to warn the defendant about the dangers of self-representation and explain available defenses so that colloquy was inadequate. Without preservation, proceeding without a written waiver of counsel was subject only to plain error review. Plain error always included proceeding without a written waiver of counsel unless the State showed that the waiver was knowing, intelligent, and voluntary even without the written waiver. The State agreed that reversal was due. The Missouri Court of Appeals reversed the conviction and remanded the action for a new trial. 
STATE OF MISSOURI, Plaintiff-Respondent v. ANDREA WILLIAMSON, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38414

No self-incrimination defense under abandonment of a corpse statute 
Constitutional provisions barred compulsory self-incrimination while the statute on abandoning a corpse required persons to report the dead human bodies. The two did not conflict because corpse-reporting applied to everyone and not just persons who committed criminal offenses. “There is no constitutional right to” avoid statutorily mandated conduct “in order to avoid the possibility of legal involvement.” Whether the bin that contained the body was erroneously allowed in court, the Missouri Court of Appeals did not have to decide due to other overwhelming evidence of guilt. A defense expert’s qualifications on lethal levels of substances did not constitute qualification to opine as to cause of death. Cumulative evidence was always harmless, including testimony that the defendant had wiped down his car after the jury had already heard the defendant admit to doing so. 
(Overview summary) 
State of Missouri, Respondent, v. Joseph J. DeJoie, Appellant. 
Missouri Court of Appeals-Eastern District – ED112814

No prejudice from late disclosure 
Rules required the State to disclose evidence and granted circuit courts wide discretion among remedies including exclusion. Exclusion was only possible when prejudice rose to “[f]undamental unfairness [meaning] a reasonable likelihood that an earlier disclosure of the requested evidence would have affected the result of the trial[,]” which was subject to cure by a continuance for investigation. And the appellant did not show investigation would have helped. Also, the evidence was cumulative and therefore harmless. 
(Overview summary) 
State of Missouri, Respondent, v. Oscar M. Ward III, Appellant. 
Missouri Court of Appeals-Eastern District – ED112740

Public safety exception to expungement discussed
Petitioner could seek expungement of criminal convictions. A complete application raised a presumption favoring expungement. Grounds for denial included justice, public welfare, and public safety. Petitioner had a long history of harassing and stalking victim, as well as baseless legal actions. Victim’s testimony by affidavit did not deprive petitioner of due process because the right to confront witnesses applied in criminal cases only, and not civil cases, and did not deny petitioner the right to cross-examination because no party called victim as a witness. Evidence cumulative of evidence admitted without objection could not have prejudiced petitioner. The circuit court denied the petition for expungement and the Court of Appeals affirmed that judgment.
DENNIS R. RYNO, Plaintiff-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD38734

DWI

Reasonable grounds shown 
On appeal from the director of revenue’s revocation to circuit court, the director had the burden of proving that law enforcement arrested the appellant driver under reasonable grounds to believe that the appellant was driving while intoxicated. Reasonable grounds meant probable cause. Probable cause included the appellant’s speed over 30 mph beyond the speed limit and crossing center line and fog lines multiple times while fleeing an officer’s pursuit. Whether that arrest included probable cause to believe that driver was intoxicated did not matter because additional signs of intoxication appeared, resulting in a second arrest. Those signs included vomit on driver’s shirt, inability to stand unaided, glassy and bloodshot eyes, the smell of alcohol, and an uncooperative and belligerent attitude. The circuit court revoked driver’s license and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Daniel Andrade-Arellanos vs. Director of Revenue 
Missouri Court of Appeals-Western District – WD87757

Elections

Reproductive rights proposition’s ballot language re-written
Constitutional amendments proposed by joint resolution had to relate to a “single subject,” meaning “a readily identifiable and reasonably narrow central purpose.” The subject of reproductive rights was broad enough to include gender transition surgeries and hormone therapies; and venue and notice requirements for challenges to State laws governing reproductive health care. The circuit court found that the proposition met the single subject requirement and the Court of Appeals affirmed the judgment in that regard. The Secretary of State had to prepare a ballot summary that was fair and sufficient, meaning that the statement accurately described the proposition’s central features and effects, in fifty words not counting articles. In an action challenging the language, the Secretary of State could offer no more than three revisions to the language and none after the action was pending in circuit court. The judgment was final when the circuit court made its conclusions of law on the language. Language did not meet the standard if it failed to restate any of [the proposition]’s central features [;]” failed to list the proposition’s main purpose first; falsely implied a change in law; or used a partisan, biased, argumentative, or politically charged term. The proposition failed to mention that the proposition would repeal voter-approved reproductive rights and imposed restrictions on reproductive rights; mischaracterized a limit on State interference with medical care as a guarantee of such care; and mischaracterized gender alteration as sex change. The Court of Appeals entered the judgment that the circuit court should have entered, including new language, and certified the new language to the Secretary of State.
(Overview Summary)
Anna Fitz-James vs. Secretary of State Denny Hoskins, et al.
Missouri Court of Appeals, Western District - WD88392

Employment security

Deficient appellant’s brief required dismissal 
Appellate courts had to remain neutral, and their opinions constituted precedential authority, so appellate courts would not rule on “incomplete and unsupported arguments” especially after an opportunity to correct deficiencies in the appellant’s brief. The appellant’s failure to comply with rules governing the statement of facts, points relied on, argument, and standard of review would have required the Missouri Court of Appeals to construct an argument on appellant’s behalf, so the Court of Appeals dismissed the appeal. 
(Overview summary) 
Victoria Amrine vs. Progressive Casualty Insurance Company, Employer, and Division of Employment Security 
Missouri Court of Appeals-Western District – WD88066

Wrong issues appealed 
On appeal from a decision of the Labor and Industrial Relations Commission, appellate courts could review only the rulings that the commission made. The commission dismissed the claimant’s action for failure to file timely and did not reach the merits so the merits could not come before the Missouri Court of Appeals. The claimant’s appeal addressed only the merits of the claim, so the Court of Appeals dismissed the appeal. 
(Overview summary) 
Rita Pirez vs. Elwood Staffing Services, Employer, and Division of Employment Security 
Missouri Court of Appeals-Western District – WD87916

Evidence

Harassment proven by Facebook posts 
On a charge of second-degree harassment by texting, evidence of Facebook posts with “distinctive characteristics identifying the author” as the defendant were admissible, and the defendant’s denial did not require the circuit court to exclude the evidence. That evidence, the defendant’s claim of authorship, and evidence that the defendant’s phone was the source of the texting supported a finding of guilt. The Missouri Court of Appeals affirmed the conviction. 
STATE OF MISSOURI, Plaintiff-Respondent v. DUSTIN WYNNE LEYBA, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38875

Propensity evidence analyzed 
Constitutional provisions allowed propensity evidence in certain criminal actions on a foundation that included whether undue prejudice substantially outweighed probative value. Probative value was high because of similar tactics described in the charged and uncharged offenses. Closing arguments and instructions ameliorated prejudice. Any evidence that was cumulative of other properly admitted evidence was not prejudicial at all. 
STATE OF MISSOURI, Respondent v. JACKSON W. CHAMBERS, Appellant 
Missouri Court of Appeals-Southern District – SD38577

Autopsy photos were okay 
Lay witnesses could testify to their impressions of the defendant’s “mental or emotional state if the impressions [were] based on personal observation, do not address an ultimate issue, and are consistent with common experience.” Such testimony and multiple autopsy photographs were relevant to deliberation. And the defendant did not show unfair prejudice, in that the photographs was gruesome because the killing was gruesome, and the testimony was not outcome-determinative. No abuse of discretion occurred in the entry of that evidence into the record so the Missouri Court of Appeals affirmed the convictions. 
(Overview summary) 
State of Missouri, Respondent, v. Dairius Kinnie, Appellant. 
Missouri Court of Appeals-Eastern District – ED112427

Family

Deficiencies in appellant’s brief required dismissal 
Rules of appellate practice protected the neutrality of appellate courts. Failures to draft a complete statement of facts, announce a theory reporting reversal, show the preservation of an appealed ruling, and file a controverted exhibit as part of the record on appeal required the Missouri Court of Appeals to dismiss the appeal. 
(Overview summary) 
In Re the Marriage of: Elke Gonzales-Flaharty vs. Mathew Flaharty 
Missouri Court of Appeals-Western District – WD87625

Notice was required before ruling on motions 
Due process required notice before depriving any person of property. The circuit court gave notice of a hearing on some pending motions, but not other “intertwined” motions regarding maintenance, and then entered judgment on the maintenance motions. “While the circuit court believed it had all of the evidence, a circuit court’s judgment should be based on evidence presented by the parties rather than the circuit court’s speculation regarding the evidence parties might present.” Judicial economy did not prevail over due process so the Missouri Court of Appeals vacated the maintenance rulings and remanded the action. 
(Overview summary) 
Sherry L. Thompson, Appellant, v. Anthony Thompson, Respondent. 
Missouri Court of Appeals-Eastern District – ED113248

Employability thwarted maintenance 
The presence of evidence in the record supporting relief for the appellant did not require reversal of a judgment denying that relief when that judgment also had support in the record. Unemployment did not, alone, require an award of maintenance and evidence of employability supported an imputation of income. Factors affecting property division included marital misconduct but extramarital affairs after separation did not require a more unequal division, nor did past alcohol addiction under recovery for the past six years. The circuit court had discretion as to pro-rata payment of a child’s uninsured health expenses. The circuit court did not abuse its discretion when denying a motion to re-open the record for determinations of the Social Security Administration because those determinations were not binding on the circuit court and the evidence supporting the determination was cumulative. The Missouri Court of Appeals affirmed the judgment. 
(Overview summary) 
Matthew J. Callow, Respondent, v. Danielle N. Callow, Appellant. 
Missouri Court of Appeals-Eastern District – ED113129

Postnuptial agreement was invalid 
A spouse could waive their interest in marital property by postnuptial agreement. Postnuptial agreements were valid only on conscionable terms, including consideration, and if entered into “freely, fairly, knowingly, understandingly and in good faith and with full disclosure.” Those principles applied whether the property interests were inchoate or vested. The record showed that respondent had no chance to consider, consult counsel, and negotiate. Previous cohabitation in the marital residence did not constitute adequate consideration for waiver of marital rights in that residence. The circuit court did not err in treating the respondent’s waiver as a postnuptial agreement and denying enforcement so the Missouri Court of Appeals affirmed the judgment. 
(Overview summary) 
Nicole M. Graham, Appellant, v. Douglas E. Graham, Respondent. 
Missouri Court of Appeals-Eastern District – ED112970

End of custody, end of child support 
Absent the adverse party’s request, any motion for continuance had to be in writing with a supporting verification or affidavit, and denial of a motion for failure to comply with those requirements was never an abuse of discretion. And re-opening the record for the appellant’s evidence negated any prejudice. In court-tried cases, reversal for erroneous admission of evidence cumulative of properly admitted evidence was “practically impossible” because the appellants could not show prejudice. Evidence of party statements in settlement negotiations was inadmissible. In determining child custody, the passage of time supported rebuttal testimony to update the circuit court on the child’s best interests. A “breakdown in communication and cooperation alone is sufficient to constitute a change of circumstances warranting the modification of legal custody” and the circuit court applied statutory factors in determining the child’s best interests. The respondent’s motion to custody asked for a corresponding adjustment to respondent’s child support obligation, which supported an end to that obligation when respondent received full sole physical and legal custody, and no finding of inability to pay that obligation was needed to eliminate the obligation. Calling the result “termination” instead of “elimination” did not alter that outcome. Circuit courts could award child support retroactively and the circuit court’s retroactive date was not arbitrary. An amended judgment required more than an expression of intent, and more than granting a motion to amend the judgment, it required the issuance of amended judgment; and when an amended judgment did not issue in time, the judgment was not amended and the motion to amend was overruled by operation of law. The Missouri Court of Appeals reversed and remanded the judgment on appellant’s child support obligation, as the parties agreed, and otherwise affirmed the judgment. 
(Overview summary) 
S.W., Respondent, v. K.H., Appellant. 
Missouri Court of Appeals-Eastern District - ED112541

Local government

St. Louis City Charter Commission okay 
Constitutional provisions allowed home rule for certain cities by charters, allowed for amendments to such charters by popular vote, and required proposed amendments to come from a city’s board of aldermen alone. Those provisions did not bar the city from delegating the drafting of amendments to a city commission created for that purpose. That commission had no authority to submit any proposed amendment to the voters. The circuit court granted judgment on the pleadings for the city and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
Charles Lane, Appellant, v. City of St. Louis, Respondent. 
Missouri Court of Appeals-Eastern District – ED113533

Orders of protection

Stalking shown 
The elements of a full order of protection against stalking included conduct causing “fear of danger of physical harm” in the plaintiff and in a reasonable person. Findings of those elements had support in evidence of the defendant’s escalating threats of property damage and challenges to physical altercations toward plaintiff and members of the plaintiff’s household. The plaintiff’s retaliation with “an offensive gesture” did not change that result and the Missouri Court of Appeals affirmed the judgment granting a full order of protection. 
(Overview summary) 
M.S.C., Respondent, v. S.W., Appellant. 
Missouri Court of Appeals-Eastern District – ED113307

Personal injury

Open and obvious danger described 
The defendant could prevail on summary judgment by establishing, beyond genuine dispute, facts that negate an element of the plaintiff’s claim. The plaintiff claimed damages from a dangerous condition of the defendant city’s property, an exception to sovereign immunity. The record showed that the city had notice of a defective step at a curb, the defendant did not show that the hazard was open and obvious, and yellow paint did not necessarily absolve the defendant of liability. Genuine disputes remained as to material facts, so the Missouri Court of Appeals reversed the defendant’s summary judgment and remanded the action. 
(Overview summary) 
Tina Hursman vs. The City of Sedalia, Missouri 
Missouri Court of Appeals-Western District – WD87919

Post-conviction

No relief on different theories for biased juror 
The movant’s appeal and motion both cited the same allegation: a biased venire person unrehabilitated and allowed to sit on the jury. The motion brought a constitutional challenge under the right to a jury trial. The appeal charged ineffective assistance of counsel. The former did not preserve the latter so the Missouri Court of Appeals dismissed the movant’s appeal. 
(Overview summary) 
William M. Chamness vs. State of Missouri 
Missouri Court of Appeals-Western District – WD87658

Amended motion late, initial motion pending 
The rule in effect on the date of sentencing governed procedure on motions “regardless of any later amendments.” The initial motion was timely and the governing rule allowed two 30-day extensions for filing an amended motion. But the first extension expired the day before the circuit court granted it, so the second extension was void, so the amended motion — filed within the void second extension — was untimely. The abandonment doctrine did not apply because post-conviction counsel was retained and not appointed. Therefore, only the initial motion was before the circuit court. The amended motion was not identical to the initial motion, and the circuit court ruled on the amended motion only, so that judgment was not final. Without a final judgment, the Missouri Court of Appeals lacked jurisdiction. The Court of Appeals vacated the judgment, dismissed the appeal, and remanded the action to circuit court for a ruling on the initial motion. 
JAMES D. WOOLARD, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals-Southern District – SD38799

No relief on claim filed late 
Timely filing was an element of any claim. The movant filed an amended motion out of time through unappointed counsel, and the circuit court ruled on the amended motion, which was error. The abandonment doctrine did not apply to unappointed counsel so relief was possible only on claims in the initial motion. The initial motion did not include the claim on which the movant appealed, so the Missouri Court of Appeals affirmed the judgment denying relief. 
(Overview summary) 
Barry E. Anderson, Appellant, v. State of Missouri, Respondent. 
Missouri Court of Appeals-Eastern District - ED113203

Real estate

No attorney fees in unlawful detainer 
The statute on tenancies at will, including the notice requirements, did not govern tenancies under lease contracts. The parties’ lease contract was breached by the appellant, the record showed, and the appellant did not show that that finding was against the weight of the evidence. The action occurred after dismissal of a contemporaneous bankruptcy action so no violation of the automatic stay occurred. The circuit court action was for unlawful detainer. The action for unlawful detainer existed solely under statutes and those statutes did not provide for an award of attorney fees. An award of attorney fees was allowed in the parties’ contract but unlawful detainer actions did not enforce contracts, and no contract action or action for rent and possession, was ever filed. The circuit court erred in awarding attorney fees, so the Missouri Court of Appeals reversed the judgment as to the attorney fees award, and affirmed the rest of the judgment. 
(Overview summary) 
Kevin Dochterman, Respondent, v. Shana Lindsey, Appellant. 
Missouri Court of Appeals-Eastern District – ED112915

Tax

Only one local sales tax allowed on marijuana 
Constitutional provisions allowed local governments to apply a tax on retail sales of marijuana: cities within their corporate bounds, and counties in unincorporated areas only. The circuit court erred in holding otherwise, so the Missouri Court of Appeals reversed that judgment and remanded the action. 
(Overview summary) 
Vertical enterprise, LLC vs. Buchanan County; Director of Revenue 
Missouri Court of Appeals-Western District – WD87291

Assessed value was zero dollars 
Seller taxpayer sold a property with a building, reserving certain rights, and splitting the property in two: one part with the building for a greater amount of the sales price, and another with the rest of the purchase price for the reserved rights. Those rights had no value when assessed, despite the assigned price, so the State Tax Commission assessed seller’s interest in the other part at zero. The Missouri Court of Appeals affirmed that decision because the reservations consisted of negative easements and unused interests. 
(Overview summary) 
Tracy Baldwin, Assessor, Clay County, Missouri vs. Quiktrip Corporation 
Missouri Court of Appeals-Western District – WD87829

Business license tax procedure discussed 
A circuit court action was available for “persons” aggrieved by telecommunications businesses’ violations of law but “persons’ did not include cities. In actions for accounting and declaratory judgment, an adequate remedy at law was a defense, which the multiplicity of businesses subject to assessment did not negate. Cities could levy a business license tax and collect it like sales tax. Collecting sales tax conditioned an action in circuit court on having completed an assessment and notice before filing. Plaintiff city did not allege that it had given the defendant telecommunications businesses any notice of any assessment’s results. The circuit court dismissed the city’s petition and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary) 
City of Jefferson, Missouri, Appellant, vs. Sprint Communications, Inc., et al., Respondents. 
Missouri Court of Appeals-Eastern District – ED113433

Workers’ compensation

Medical fee dispute resolution affirmed 
For compensable injuries, employers had to pay fair and reasonable healthcare expenses for the employee. Disputes were subject to resolution before the Labor and Industrial Relations Commission, with the burden of proof on the provider, who “always bears the risk of non-persuasion.” The opportunity or need to contest a provider’s prima facie case, sometimes called a “shift” in the burden of proof, was really just “coming forward with competing evidence[.]” The commission properly applied those “universal principles[.]” The record included documentation and testimony that supported the commission’s award. 
(Overview summary) 
S&B Hauling & Construction and Utah Business Insurance Company of America vs. Center For Surgical Specialties, P.C. 
Missouri Court of Appeals-Western District – WD88030

No claim for retaliation against the state 
The State was generally subject to statutes governing workers’ compensation, and workers’ compensation statutes provided liability for employers who retaliated against claimants, but that liability was tort liability. Statutes specifically governing State liability expressly reserved sovereign immunity against such claims. “[The State] has the duty and obligation to comply with the workers’ compensation laws], but has not waived tort liability in connection therewith.” The Missouri Court of Appeals affirmed summary judgment for the State. 
ELLIS WOODRUM, Appellant v. MISSOURI DEPARTMENT OF SOCIAL SERVICES, Respondent 
Missouri Court of Appeals-Southern District – SD38940

Attorneys

Incorrect signatures resulted in unauthorized practice of law 
“The Federal Rules of Civil Procedure do not bind this court[.]” Voluntary dismissals occurred only as rules provided. Rules provided that any document served had to have the signature of a self-represented party, which could not include a legal entity, or local counsel; and set forth acceptable electronic signature formats. A voluntary dismissal bore only the signature of counsel pro hac vice, and lacked local counsel’s signature in acceptable form, so that voluntary dismissal constituted the unauthorized practice of law, was null, and did not end the circuit court’s subject matter jurisdiction. Subject matter jurisdiction was not waivable. Prompt correction could relate back to cure such defects but not when it would deprive respondents of attorney fees. Respondents’ motion for attorney fees was “akin to a counterclaim” and subject to the circuit court’s ancillary jurisdiction, but did not constitute a claim, so the order granting awarding attorney fees was not a final judgment subject to appeal. 
(Overview summary) 
Oak Ridge Property Management, LLC, et al., Appellants, vs. Robert P. Greene, et al., Respondents 
Missouri Court of Appeals-Eastern District - ED113519

Administrative

Agency discretion affirmed 
Respondent agency had authority to bar employment of health care personnel for patient neglect. The appellant registered nurse was required to check on a patient experiencing alcohol withdrawal, failed to do so, and falsified related records. An agency witness’s testimony at a contested case hearing on statutory factors for the agency’s consideration did not constitute a usurpation of agency authority. The agency’s exercise of discretion — a permanent bar — constituted an application of the statutory factors to the evidence, did not constitute error, and was not subject to substitution with any court’s discretion. The circuit court nevertheless reversed the agency as to the duration of the bar, so the Missouri Court of Appeals reversed the circuit court, and affirmed the agency decision. 
(Overview summary) 
Bradley Hult vs. Missouri Department of Health and Senior Services 
Missouri Court of Appeals-Western District – WD87540 (consolidated with WD87558)

ADR

Rams dispute was outside of arbitration 
Whether disputes were subject to an action in circuit court or arbitration depended on the petition and the parties’ arbitration provision. The parties’ arbitration provision in a contract for the lease of real property did not cover a dispute over the lease’s provision for an option to purchase, because that dispute arose from a release provision in a settlement contract. The settlement contract and its release provision were the subject of the petition in circuit court, and the circuit court had not determined the merits of the release, so the release could not support appellants’ arguments. The circuit court did not err in denying appellants’ motion to compel arbitration. 
(Overview summary) 
St. Louis Regional Convention and Sports Complex Authority, Respondent, v. The Rams Football Company, LLC, et al., Appellants 
Missouri Court of Appeals-Eastern District – ED113374

Appellate

Point relied on must specify a ruling, not a result 
Rules governing appellate briefing made sure that appellate courts ruled on appellants’ arguments only so, when an appellant’s argument was unclear, appellate courts would not speculate. Any appellant had to show how they preserved each point for appellate review, identify the standard of review, enunciate a theory for reversal, and challenge an erroneous ruling that led to the judgment rather than challenge the judgment itself. A point relied on “[i]dentifying the ultimate result of the trial, the entry of judgment[,] is defective.” The appellants failed each of those requirements, so the Missouri Court of Appeals dismissed the appeal. 
VINCENT TALDONE, et al., Plaintiffs-Respondents v. H.C. SHEPHARD, et al., Defendants-Appellants 
Missouri Court of Appeals-Southern District – SD38883

Evidence

No prejudice from exclusion of cumulative evidence 
The elements of reversal included an erroneous ruling that was outcome-determinative. Exclusion of evidence could never be outcome determinative when the excluded evidence was cumulative of other admitted evidence. The defendant offered an expert witness to testify that a fire’s origin was not arson because its origin was indeterminable but a State witness had already testified that the fire’s origin was undetermined. The expert’s testimony was cumulative, so excluding it was not outcome-determinative and the Missouri Court of Appeals affirmed the defendant’s arson conviction. 
STATE OF MISSOURI, Plaintiff-Respondent v. JAMES LEE HOPKINS, III, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38670 and SD39097 (Consolidated)

Family

Termination of parental rights affirmed 
The appellant’s brief did not comply with rules, but the deficiencies did not impede review and the rights at stake were grave, so the Missouri Court of Appeals did not dismiss the appeal. The appeal did not include a re-weighing of evidence. A motion to amend the judgment was necessary to preserve error as to findings required by statute, and “the plain language of the meticulously detailed ‘factor analysis’ performed by the trial court in its judgment” satisfied that requirement. Circuit courts could terminate parental rights on findings described by statute, including statutory grounds by clear and convincing evidence and the child’s best interest by a preponderance of the evidence, and the same evidence could be relevant to both. And, for both, a finding of a single factor was enough to withstand appellate review. Failure to rectify a dangerous condition had support in evidence showing why the juvenile division assumed and continued authority over the child. The circuit court correctly projected the future from the past. A finding on that ground mooted error as to any other ground. The adequacy of a social service plan was not a defense. A social study investigative report was necessary on the child’s best interest, and was not admissible as to the statutory grounds, but was cumulative of other evidence. And the parent did not preserve that issue or include the report in the record on appeal. Also, parent’s objections to parts of the report could not exclude the whole. The Court of Appeals remanded the action to determine an attorney fees due parent’s appointed counsel. 
(Overview summary) 
In the Interest of: K.M.D. and R.M.D. Juvenile Officer vs. S.M.D 
Missouri Court of Appeals-Western District – WD87912 consolidated with WD87913

Orders of protection

No plain error in lack of cross-examination 
To preserve a constitutional matter for appellate review, the appellant had to raise the matter “at the first opportunity in the circuit court[,]” which the appellant did not do, leaving only plain error review. The elements of reversal for plain error included an error that was so fundamental as to undermine “the very foundation of the process” and change the result. The process for a full order of protection included confrontation of adverse witnesses, which the circuit court did not afford, because it did not tell the pro se defending party when he had the opportunity to cross-examine the represented claimant party. And the appellant did not show that the lack of cross-examination changed the outcome at trial. The result was the same when characterizing the error as statutory. 
(Overview summary) 
K.L.H., Respondent, v. N.R., Appellant 
Missouri Court of Appeals-Eastern District – ED112951

Post-conviction

Evidentiary hearing was necessary 
A hearing was necessary before ruling on any motion that alleged facts unrefuted in the record and describing ineffective assistance of counsel or a violation of due process. The movant alleged that trial counsel failed to strike a biased venire person. No hearing was necessary on that claim, because the venire person only indicated an inclination to believe a specific acquaintance, and the State’s law enforcement witness merely provided a foundation for a recorded interview and did not testify to a substantive element of the charged offense. The movant alleged that he told trial counsel of a witness who was available and willing to testify in contradiction to the State’s witnesses. The movant also alleged that the State failed to disclose an item of evidence, and the circuit court made a finding of fact that the evidence was disclosed, but that finding had no support in the record. On those two claims, a hearing was necessary before ruling. The record showed that late filing of the amended motion was due to post-conviction counsel’s miscalculation, which demonstrated abandonment, obviating the need for a remand and inquiry. 
AUSTIN TYLER GRAY, Defendant-Movant v. STATE OF MISSOURI, Plaintiff-Respondent 
Missouri Court of Appeals-Southern District - SD38721

Probate

Will filed too late 
Nothing barred an heir from appointment as personal representative. Statutes governing the probating of wills described the application for application for letters of administration, supplements to that application, and notice that letters of administration have issued. That notice started the time to file a will for probate unless the notice was defective. The notice was not defective because the application was not defective and did not require any supplement. Even if a supplement was necessary, the supplement would have extended the time for filing a will, and would not have started a new time. The appellants filed a purported will too late, rendering it null. 
(Overview summary) 
In the Matter of Edward L. Eisenstein, Deceased Margaret Delacy vs. World Wildlife Fund, Missouri Botanical Garden, Cousteau Society, The Nature Conservancy, and Ecohealth Alliance, Inc., Successor-In-Interest to Wildlife Preservation Trust International 
Missouri Court of Appeals-Western District – WD87821

Commissioner orders needed judge’s confirmation 
The Missouri Court of Appeals had jurisdiction over final judgments of circuit courts. Circuit courts had authority under the Uniform Adult Guardianship and Protective Proceedings Act to review orders in a case transferred from a Georgia State court and could do so through a probate commissioner. But probate commissioner orders were not final unless confirmed in a timely manner by a probate division judge. The commissioner denied motions to set aside Georgia court orders, reconsider, and reopen the action. The judge’s orders, confirming those commissioner orders, were untimely so the action and the motions remained pending in circuit court. The Court of Appeals “firmly” dismissed the appeal, remanded the action to circuit court, and instructed the probate division to timely renew and confirm all the orders that were the subject of the appeal. 
(Overview summary) 
In the matter of: Lauren Micaela Taylor 
Missouri Court of Appeals-Eastern District – ED113222

Real estate

Withdrawal of application mooted appeal 
Appellate courts generally do not hear matters that are moot, including matters as to which practical relief is no longer possible. the relator filed an application on behalf of a landowner seeking to split a tract of land. On denial of the application, relator sought a writ of mandamus compelling a grant of the application. But the application was no longer pending because landowner withdrew the application, and also withdrew relator’s authority to pursue the application, which was likely the relator’s real grievance. And no split was possible since condemnation of the tract for highway construction. The appeal was moot so the Missouri Court of Appeals dismissed the appeal. 
(Overview summary) 
Phoenix Hospitality, INC. vs. Timothy Teddy 
Missouri Court of Appeals-Western District – WD87596

Missouri land was subject to Missouri law
Motions to dismiss for failure to state a claim tested only whether the claimant alleged facts on which courts could award relief if those allegations were true and not by determining whether the allegations were true. “The [circuit] court’s role in determining whether to dismiss a claim requires a pleadings-only analysis that does not extend to evidence outside the pleadings.” The circuit court heard evidence, and made findings of fact, on a party’s claim to quiet title. An action to quiet title was subject to the jurisdiction and substantive laws of the State in which the subject property lay. The subject property was in Stoddard County, so Missouri Courts had jurisdiction to hear the quiet tile action, the terms of a trust governed by another State’s laws notwithstanding. The Missouri Court of Appeals vacated the ruling on the motion to dismiss for failure to state a claim, vacated all subsequent rulings, and remanded the action to circuit court for further proceedings. 
SCARLETT NORRIS ADAMS, AS TRUSTEE OF THE SCARLETT NORRIS ADAMS REVOCABLE TRUST, DATED APRIL 9, 2013, Appellant/Cross-Respondent v. ELIZA LAMM, Respondent/Cross-Appellant 
Missouri Court of Appeals-Southern District - SD38729 and SD38730 (Consolidated)

Criminal

Constructive possession shown 
A statement of “no objection” did not waive error as to previously argued and mutually understood objections. The defendant’s objections in circuit court were sufficient to preserve error as to the lawfulness of a series of searches. “Reasonable suspicion is a lower standard than probable cause” and consisted of the totality of circumstances rather than each separate circumstance. Reasonable suspicion of criminal activity supported brief detentions. Reasonable suspicion of danger supported protective searches. A traffic stop and protective search were lawful, so the resulting evidence was admissible. Possession of an item consisted of knowledge of the item and control over it, of which easy reach was evidence. Nervous demeanor alone did not constitute reasonable suspicion or show possession, but it was a factor. False statements to law enforcement also showed guilt. The circuit court did not err in finding that the defendant felon was in possession of a firearm constructively. 
(Overview summary) 
State of Missouri vs. Jonathan Edward Rainey 
Missouri Court of Appeals-Western District – WD87377

Generalized evidence on domestic violence behavior was okay 
In criminal actions, constitutional provisions protected a complete defense and erroneous limitation was presumptively prejudicial. But no error occurred when the circuit court limited the defendant’s cross-examination to personal first-hand knowledge and barred questions that called for speculation as to what would have happened under different events. An objection to logical relevance did not preserve an objection to legal relevance. A State expert's testimony on delayed reporting of domestic abuse was relevant to the defendant’s theory of self-defense and the victim’s retaliation. And the defendant did not show that the testimony was outcome-determinative, especially considering the overwhelming evidence of guilt. The defendant did not show that a definition of “knowingly” in jury instructions constituted plain error because it was required, lawful, and unobjected-to and because the defendant did not show that it was outcome-determinative. 
(Overview summary) 
State of Missouri vs. Greg Hallgrimson 
Missouri Court of Appeals-Western District – WD86680

Evidence

Prejudice not shown 
To be admissible, evidence had to be relevant logically and legally. When the defendant alleged self-defense, a video of the defendant’s arrest became logically relevant because it showed the defendant’s flight until detained by law enforcement. Legal relevance meant that probative value outweighed unfair prejudice. The video showed an otherwise uneventful traffic stop and arrest. And the video was cumulative of testimony, negating prejudice. A video of the defendant in a patrol car corroborated the allegations against the defendant, negated self-defense, and showed consciousness of guilt. Prejudice from the video was not unfair; the video was disturbing because the defendant’s conduct was disturbing. The defendant did not show that plain error occurred when the circuit court admitted the defendant’s medical records because the defendant did not show that they were outcome-determinative. The record showed that defendant consciously determined not to seek an instruction on defense of another so no review was possible of the circuit court’s failure to submit such an instruction. 
(Overview summary) 
State of Missouri vs. Patrick Logan Pulse 
Missouri Court of Appeals-Western District – WD87238

Introductory questioning was okay 
In criminal actions, evidentiary rulings were subject to review for was outcome-determinative error. On charges of statutory rape in the first degree, statutory sodomy in the first degree, and using a child in a sexual performance, the State offered evidence that the defendant’s occupation was as a school resource officer. The defendant objected to relevance, which the circuit court overruled. No error occurred because the evidence was relevant and cumulative of other evidence entered without objection. And any party could generally ask any witness preliminary questions to set “a proper estimate on [the witness’s] testimony” like age, residence, and occupation. And other evidence of guilt was overwhelming, so no outcome-determinative prejudice resulted. 
STATE OF MISSOURI, Plaintiff-Respondent v. ROB RUEL PILKINGTON, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38764

Personal injury

Massachusetts rule negated duty to clear snow and ice 
A defending party could prevail on summary judgment by establishing, beyond genuine dispute, facts showing that the claimant party could not establish an element of the claimant’s action. The elements of an action for negligence included a duty from the defendant to the plaintiff. The plaintiff claimed injury from uncleared ice and snow on the defendant’s premises. The Massachusetts Rule negated any duty to clear snow and ice naturally accumulated across the community. The defendant established without dispute that snow and ice were general and whether snow and ice were still accumulating when the injury happened was immaterial. The Massachusetts Rule was not an affirmative defense because it neither negated the underlying tort nor required the pleading of facts additional to the plaintiff’s claim. The Massachusetts Rule did not apply to the defendants who assumed a duty to clear snow and ice, by agreement or by a course of conduct over time, while still general in the community; but the plaintiff failed to establish such facts. 
(Overview summary) 
Larry Brandes vs. Bothwell Regional Health Center 
Missouri Court of Appeals-Western District – WD87735

Post-conviction

No ruling on late motion 
The deadlines for filing were mandatory and untimely filing of an initial motion vested no authority in the circuit court to rule on the motion. Exceptions for third party interference nor circuit court misinformation did not apply, and the movant’s misunderstanding of the law did not constitute an exception. The circuit court found that the initial motion was late and ruled on the amended motion anyway. The Missouri Court of Appeals vacated that ruling and remanded the action to circuit court for dismissal. 
KEVIN KELLY, Appellant v. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals-Southern District – SD38760

Probate

No error shown in procedure for guardianship and conservatorship 
The appellant initiated the action as to the protectee. The probate division issued an earlier judgment of incapacity and disability and appointing a guardian and conservator. Because the appellant prevailed, the appellant had no standing to appeal the earlier judgment or challenge that judgment as void for violation of due process. “Constitutional rights are personal to the affected party, and third parties do not have standing to challenge their violation.” No hearing was necessary before the probate division also issued a later judgment approving the conservator’s final settlement. The appellant could not appeal the earlier judgment by appealing the later judgment. The appellant could not appeal the later judgment by taking a position inconsistent with the appellant’s position in circuit court. When a successor public administrator took over the protectee’s assets, the appellant was not due a receipt and the appellant did not show any error in the protectee’s inventory. 
IN THE MATTER OF: SHIRLEY MAE BUTLER, INC/DSB, GREGORY LEE, Petitioner-Appellant v. KIMBERLY CLARK, Respondent-Respondent, LORETTA ROUSE and REBECCA ALLEN, Intervenors-Respondents 
Missouri Court of Appeals-Southern District – SD38425

Administrative

Challenge as against the weight of the evidence described 
To challenge a judgment as against the weight of the evidence was “a difficult path, as ‘[t]his Court rarely has reversed a trial judgment as against the weight of the evidence [.]” The Supreme Court expressly required an analysis that included a presentation of all evidence supporting the judgment, resolving all conflicts in favor of the judgment, and showing that the result lacked probative force to support a finding of fact necessary to the judgment. For example, appellant argued that the circuit court overlooked a dispositive admission by respondent. But the record showed otherwise. Failure to adhere to that analysis deprived appellant’s arguments of value so the Supreme Court affirmed the judgment. 
(Overview summary) 
Phillip Weeks, Appellant, vs. City of St. Louis, Respondent. 
Missouri Court of Appeals, Eastern District – ED112624

ADR

Arbitrability delegated 
Parties to a contract could agree to delegate any matter to an arbitrator, including whether a matter was subject to arbitration. Challenges to a delegation clause had to be distinct from a challenge to an arbitration provision. Partnerships were not legal entities separate from the partners, so partner signatures to an agreement bound the partnership. “Missouri adheres to the ‘aggregate theory’ of partnerships, i.e., a general partnership has no legal existence separate from its partners [and] the Uniform Partnership Act . . . did not change this venerable principle.” Therefore, partner signatures on an arbitration agreement bound the partners and their successors—including a partner’s estate—to arbitration of disputes, including whether any matter was subject to arbitration. The circuit court ruled otherwise, so the Court of Appeals vacated that ruling, and remanded for the circuit court to compel arbitration. 
(Overview summary) 
Diana Maune, as Personal Representative of the Estate of Neil J. Maune, Respondent, vs. Marcus Raichle, Jr. and the Maune Raichle Law Firm, Appellants. 
Supreme Court of Missouri – SC100942

Appellate

No final judgment while relief pending 
The Court of Appeals could address the merits of appeals from final judgments but calling a judgment final did not make it a final judgment. A final judgment was a judgment that disposed of all matters as to all parties. Plaintiff prayed for relief that included prejudgment interest and attorney fees, matters on which the judgment was silent, rendering the judgment less than final. The Court of Appeals dismissed the appeal. 
(Overview summary) 
Savannah Radmer vs. Missouri Department of Corrections 
Missouri Court of Appeals, Western District – WD86817 Consolidated with WD86874

Corporations and other entities

Specific performance affirmed for buy/sell option 
The elements of specific performance included plaintiff’s full performance. The plaintiff’s performance included tender of a purchase price but defendant’s express intention not to perform waived tender. Plaintiff then had to demonstrate that plaintiff was ready, willing, and able to perform. The elements of a contract included a meeting of the minds as to the contract’s provisions so, in an action for breach of contract, mutual mistake was an affirmative defense. Defendant appellant alleged that both parties were mistaken as to the assets subject to a forced buy/sell option. The circuit court did not find for defendant on the facts supporting that affirmative defense. Strict compliance with notice provisions were subject to waiver, which the parties’ communication by email did. The Court of Appeals deferred to the circuit court’s findings of fact, and those findings were not against the weight of the evidence. The Court of Appeals affirmed the judgment and remanded the action for a determination of litigation expenses on appeal. 
(Overview summary) 
Virginia W. Crawford vs. John A. Gardner 
Missouri Court of Appeals, Western District – WD87674

No ruling on counterclaim, no final judgment 
The Court of Appeals had jurisdiction to hear appeals from final judgments, meaning judgments that resolved all matters as to all parties. Such resolution occurred as to counterclaims when resolving the claim necessarily resolved the counterclaim. Such was not the case when the counterclaims were for slander of title, malicious prosecution, and abuse of process; and the claim was for violation of a trust’s no-contest clause; because the record showed that a jury trial was to follow bench trials for equitable matters. Because the judgment was not final, the Court of Appeals dismissed the appeal and denied a motion for attorney fees as premature. 
(Overview summary) 
Anita M. Beckmann, Appellant, v. Mary K. Wilson, et al., Respondents. 
Missouri Court of Appeals, Eastern District – ED113220

Criminal

Review of prosecutor’s conduct discussed 
“[E]ven a direct reference to the defendant’s refusal to testify did not necessarily entitle the defendant to a mistrial [,]” and questioning an expert as to why the expert did not interview defendant did not implicate the defendant’s right to remain silent, and so the circuit court did not err in failing to grant a mistrial. While cross-examining an expert, the prosecutor referred to defendant as “your client [,]” but expressed satisfaction with the circuit court’s remedy, waiving error. Defendant also showed no prejudice from the reference. Prosecutorial misconduct was not subject to direct appeal. Only extraordinary circumstances supported plain error review of the circuit court’s failure to intervene sua sponte in a prosecutor’s closing argument, and that did not describe the prosecutor’s discussion of victim’s trauma. 
(Overview summary) 
State of Missouri vs. Ian James McCarthy 
Missouri Court of Appeals, Western District – WD86568

Probation mandatory 
Denial of probation was subject to review by writ of mandamus. On successful completion of a 120-day program, the circuit court had to either release relator or execute relator’s sentence, the latter only after hearing. The circuit court did not hold a hearing before executing sentence, which was error as a matter of law. An 11th-hour allegation of probation violations did not alter that result. The Court of Appeals made permanent its writ of mandamus requiring the circuit court to release relator on probation. 
STATE OF MISSOURI, EX REL. SAI-JAHN CARTER, Relator v. THE HONORABLE ROBERT MAYER, Respondent 
Missouri Court of Appeals, Southern District – SD39084

Interlocutory appeal was too late 
Circuit court rulings on motions to suppress were subject to interlocutory appeal in the Court of Appeals within a limited time. Filing times started with the rulings. A ruling first appeared in a docket entry “unequivocally” and “definitively” suppressing evidence without regard to findings of fact or proposed orders. The Supreme Court dismissed the appeal. 
(Overview summary) 
State of Missouri, Appellant, vs. Amanda M. Mire, Respondent. 
Supreme Court of Missouri – SC100967

Prohibition barred ruling on untimely motion 
Writs of prohibition could issue to bar circuit court orders in excess of circuit court authority. Untimely motions were nullities and did not support any relief in circuit court. In circuit court, defendant filed a motion for reconsideration, which the Court of Appeals treated as a motion for acquittal. Motions for acquittal were subject to a deadline that defendant missed. The circuit court had no authority to rule on defendant’s motion so the Court of Appeals made permanent its writ of prohibition. 
(Overview summary) 
State of Missouri ex rel. Catherine Hanaway, Relator, v. Honorable Ryan J. Helfrich, Judge of Franklin County, Respondent. 
Missouri Court of Appeals, Eastern District - ED113594

Employment

No physical presence, no relief 
Motions to dismiss for failure to state a claim on which relief can be granted tested whether petitions described facts on which courts could provide a remedy. “Missouri statutes, absent express text to the contrary, apply only within the boundaries of this state and have no extraterritorial effect.” Therefore, the Human Rights Act allowed relief to employees who suffered discrimination in Missouri only and not elsewhere. Defendant employer ‘s headquarters were in Missouri, but plaintiff employee worked from home in Louisiana, so Louisiana was where any damage to plaintiff occurred. The circuit court did not err in dismissing the petition. 
(Overview summary) 
Carrie Sciortino vs. Ozark National Life Insurance Company 
Missouri Court of Appeals, Western District – WD87848

Insurance

No duty to defend nor indemnify 
The mere potential for liability, as shown in a petition or otherwise known or reasonably apparent to the insurer, created the duty to defend. No duty to defend arose from events that the petition alleged to have occurred decades after the expiration of the insurers’ policies. The conduct of plaintiff’s predecessor—the insured under the expired policies—did not alter that result even as alleged in the petition. Circuit courts’ contract interpretation was a matter of law and so subject to appellate review de novo. 
(Overview summary) 
Certain Underwriters at Lloyd's London vs. Northrop Grumman Corporation, et al.; Certain Other London Market Insurance Companies and Employer's Insurance Company of Wausau 
Missouri Court of Appeals, Western District – WD87343

Civil

No more discovery was due before granting summary judgment 
Circuit courts had discretion to defer ruling on a motion for summary judgment until the completion of discovery if “that additional discovery will likely establish a genuine issue of material fact as to the [earlier discovery response’s] authenticity.” The appellant plaintiffs had served discovery requests for “cancelled checks or other payment records” for amounts at issue. But the plaintiffs did not show that the records were relevant to the amounts. And the respondent defendants had already produced payment records for those amounts, while the plaintiffs offered only speculation as to the payment records’ authenticity. No abuse of discretion occurred when the circuit court denied more time for that discovery. One appellant plaintiff failed to challenge another basis for granting summary judgment against that plaintiff so the Missouri Court of Appeals affirmed that summary judgment. Arguments made in circuit court but not raised in a point relied on were abandoned. The Court of Appeals was the proper venue in which to file a motion for attorney fees incurred on appeal as provided by contract, yet the circuit court remained the better place to determine the amount of such an award. The Court of Appeals affirmed the judgment and remanded the action for a determination of attorney fees due on appeal. 
(Overview summary) 
Acoma Development, LLC, et al. vs. Commerce Tower Place, et al.
Missouri Court of Appeals-Western District – WD87977

Special process service was okay 
Whether a circuit court erred on whether to vacate a judgment, as void for defective process or service, was subject to appellate review de novo with deference to the circuit court’s finding of facts. Once the circuit court appointed a special process server, that special process server’s name did not have to appear on the summons. Special process servers’ returns carried no presumption of sufficient service and required supporting evidence, which the attestations in the supporting affidavit of the plaintiff’s special process server provided. The defendant did not show that the return was not filed promptly nor any consequences for a return not filed promptly. Evidence of proper service was subject to impeachment only by clear and convincing evidence, and the circuit court’s assessment of the conflicting testimony controlled. 
(Overview summary) 
Mary A. Cook, and the William Edward Cook and Mary Ann Cook Trust, Respondents, v. Glenn Sykes, d/b/a Sykes Hauling and Tree Service, Appellant.
Missouri Court of Appeals-Eastern District – ED113495 

Criminal

Corpus delecti defined 
The corpus delecti doctrine was a criminal rule of evidence barring the defendant's extrajudicial statements until some slight corroborating evidence showed that someone — not necessarily the defendant — committed a crime. Plentiful evidence established the corpus delecti, so the defendant’s confession was admissible to show the defendant’s guilt. On a charge of kidnapping in the first degree, the elements included confinement for a substantial period, which the State showed with evidence that the intended period facilitated the defendant’s other offenses and escape. Whether the confinement was incidental to any other offense was irrelevant. 
(Overview summary) 
State of Missouri vs. Ashontai Samuel Wallace
Missouri Court of Appeals-Western District – WD87231

Reliance on impersonation shown 
The elements of impersonating a public official included the victim’s reliance on the defendant’s representations. The state supported that element with the victim’s testimony that she would have divulged the procured information depending on the requester’s identity. “Actions taken in response to representation that an individual is a law enforcement officer, whether during or after the representation, are indicative of a reliance on that representation.” 
(Overview summary) 
State of Missouri, Respondent, vs. Mary J. Barton, Appellant
Missouri Court of Appeals-Eastern District – ED113024

Employment

No interest on back pay from the AHC 
The Administrative Hearing Commission had authority to decide whether a state employer had wrongfully terminated an employee, and to award back pay, but not to award interest on that back pay. That was so even when a circuit court judgment awarded “statutorily authorized” interest because no statute allowing interest applied to the commission’s decision. 
(Overview summary) 
Gregory Steins vs. Missouri Department of Agriculture 
Missouri Court of Appeals-Western District – WD87634

Workers’ compensation

Retaliation award and sanctions affirmed 
The defendants’ motions for directed verdict and judgment notwithstanding the verdict were subject to the same standard in circuit court and in an appellate court: whether probative evidence supported each element of the plaintiff’s claim. Employers could not, subject to damages, fire an employee for seeking workers’ compensation. On that matter, the plaintiff’s evidence supported a factual dispute as to whether seeking workers’ compensation, or some other reason, was a motivating factor in the plaintiff’s termination. The “range between the damage extremes of inadequacy and excessiveness” was generally so large that jury discretion in damage awards was “virtually unfettered[.]” The plaintiff’s mitigation of damages was an affirmative defense. The record supported the jury’s award so the circuit court did not abuse its discretion in denying remittitur. Circuit courts had inherent authority to sanction a party’s misconduct with a penalty even in excess of a party’s expenses in litigating against such misconduct. The employer’s fraudulent allegations of juror misconduct, not investigated by the employer’s counsel, supported a sanction equal to the jury’s award of damages to the plaintiff. 
(Overview summary) 
Kathleen Louise Hicks vs. Commercial Metals Company, et al.
Missouri Court of Appeals-Western District – WD87598 consolidated with WD87627

Appellate

AI overview was not authority 
Rules of appellate practice preserved the quality of appellate opinions and protected the courts’ neutrality. Appellant’s jurisdictional statement did not identify the judgment appealed or the Court of Appeals’ power to review it, the statement of facts recited procure only and had no references to the record by page, argument failed to show preservation of error and standard of review, and points relied on did not identify a challenged ruling and authorities for the challenge. AI Overviews did not constitute legal authority. Ruling on the appeal would have required the Court of Appeals to make arguments on appellant’s behalf so the Court of Appeals dismissed the appeal. 
(Overview Summary) 
Clay Chastain vs. City of Kansas City, Missouri, et al. 
Missouri Court of Appeals, Western District – WD87587

Analysis for no substantial evidence explained 
The Court of Appeals struck an exhibit from appellant defendant that no party offered in circuit court. An appeal based on lack of substantial evidence to support a finding or conclusion had to include and address all evidence facing the challenged ruling, which appellant did not do; so further analysis would have required the Court of Appeals to advocate for appellant, which no appellate court would do. Evidence showing that defendant was personally liable on a contract with plaintiff included the non-existence of a limited liability company when defendant signed the contracts and defendant’s ratification of a later contract. Respondent plaintiff’s brief was deficient but did not impede review, so the Court of Appeals did not strike it. Testimony from the plaintiff’s attorney supported an award of attorney fees as the contracts provided. 
(Overview Summary) 
Mississippi Valley Equipment Company, Respondent, vs. David Killian, d/b/a Elite Seawall & Excavating, LLC, Appellant. 
Missouri Court of Appeals, Eastern District – ED113156

Criminal

No appeal from condition of probation 
The circuit court announced sentence in defendant’s presence, imposed part, and suspended the remainder with conditions for probation. Probation reduced sentences so probation was not part of any sentence. Because only the sentence and finding of guilty were subject to appeal, condicitons of probation were not subject to appeal. The Court of Appeals dismissed the appeal. 
STATE OF MISSOURI, Respondent v. JULIA M. POE, Appellant 
Missouri Court of Appeals, Southern District - SD38774

Employment

Whistleblower action dismissed 
Statutes barred government officials from retaliating against employees whom the official supervised for reporting specified events. In the House of Representatives, the Speaker did not supervise the Chief Clerk, in that the Speaker could direct the Chief Clerk’s activities, but not discipline the Chief Clerk, the Speaker’s ambitions to do so notwithstanding. The Chief Clerk’s petition did not state a cause of action so the circuit court did not err in dismissing the petition. 
(Overview Summary) 
Dana Miller vs. The Missouri House of Representatives, et al. 
Missouri Court of Appeals, Western District – WD87809

Evidence

Silent witness foundation discussed 
A general objection to foundation preserved nothing for review. The objection had to cite the element of the foundation missing. And the same objection had to appear in a motion for new trial. The State had to present a security video as silent witness evidence, accurately as recorded and safe from alteration, which it did. That objection did not preserve an objection to the chain of custody. 
(Overview Summary) 
State of Missouri vs. Charles F. Miller 
Missouri Court of Appeals, Western District – WD87222

Family

Change in circumstances supported change in custody 
Circuit courts could modify their awards of custody if a substantial change in the child’s or custodian’s circumstances made a modification of custody in the child’s best interests with no presumption favoring a parent. Though modification judgments did not have to include written findings of fact, the judgment addressed the allegations in the motion. Denial of visitation supported modification of custody. On appeal, “Appellants’ failure to address the record is not a winning strategy.” 
(Overview Summary) 
C.M.L., et al., Appellants, v. S.R.B.-F., Respondent. 
Missouri Court of Appeals, Eastern District – ED113155

Juvenile

Victim statement okay 
Juvenile proceedings were not criminal proceedings so no presumption of innocence attached to juvenile proceedings. The purpose of certification hearings was not to determine the truth of allegations against juvenile but to determine whether the juvenile should be treated in the juvenile system or tried in the criminal system. Victims had the right to make a statement as to the impact of a juvenile’s conduct on the victim. Even if the victim’s statements were inadmissible, appellant juvenile could not show prejudice, because appellant could not show that the statements had any impact on the certification judgment that did not refer to the statements. Moreover, the appellant did not analyze the judgment according to the applicable statutory factors for certification. 
(Overview Summary) 
In the Interest of: Q.L.B. 
Missouri Court of Appeals, Eastern District – ED113007

Post-conviction

No appointment, no abandonment; prohibition issued 
Writs of prohibition were the remedy to halt circuit courts from acting in excess of their authority. Circuit courts had authority to hear an amended motion if appointed motion counsel abandoned the movant. But the abandonment doctrine existed to cure the late filing of an amended motion where motion counsel acted as if never appointed, so the abandonment doctrine did not apply to counsel—even a public defender—whom the circuit court did not appoint. A public defender voluntarily entered an appearance but the circuit court never appointed motion counsel for movant. Nevertheless, on the late filing of an amended motion, the circuit court ruled that motion counsel had abandoned the movant and determined to proceed with the action for post-conviction relief. The State sought extraordinary relief and the Court of Appeals granted a preliminary writ of prohibition. A remand to appoint motion counsel was not a remedy because motion counsel had already entered an appearance. Because the circuit court lacked authority to conclude that the abandonment doctrine applied, the Court of Appeals made permanent the writ of prohibition barring the circuit court from anything other than determining the initial motion. 
STATE OF MISSOURI ex rel. ATTORNEY GENERAL CATHERINE HANAWAY, Relator v. THE HONORABLE CHARLES D. CURLESS, Respondent 
Missouri Court of Appeals, Southern District – SD39039

Impeachment strategy was reasonable 
In claims for ineffective assistance of counsel, the elements included counsel’s substandard performance, which a reasonable strategy negated. Reasonable trial strategy included impeaching the victim’s honesty up to, but not including, the ultimate truth of victim’s allegations. 
(Overview Summary) 
Timothy Perkins, Appellant, vs. State of Missouri, Respondent. 
Missouri Court of Appeals, Eastern District - ED113128

No motion in limine, no prejudice 
In claims for ineffective assistance of counsel, the elements included prejudice from counsel’s substandard performance. Trial counsel’s investigation of witnesses had to be reasonable but whether movant identified a witness to trial counsel was a matter of credibility, which the circuit court found against claimant. Orders in limine were interlocutory so movant did not show that failure to file a motion in limine prejudiced movant. Cumulative evidence was never prejudicial. 
(Overview Summary) 
Ralph Alexander, Appellant, v. State of Missouri, Respondent. 
Missouri Court of Appeals, Eastern District - ED113096

Tax

Tax v. Fee explained
Constitutional provisions allowed an award of attorney fees when a political subdivision collected a tax unlawfully imposed. A water district tried to collect amounts from plaintiffs, and the amounts were unlawfully imposed, but the amounts were not taxes. Taxes did not include amounts “prescribed by law to be paid by certain individuals to public officers for services rendered in connection with a specific purpose [.]” The amounts charged were flat amounts charged to anyone for access to the district’s sewer service and so constituted a fee and not a tax. That the district enforced collection by the filing of a property lien did not change that analysis.
ADAM BINGHAM and IDA BINGHAM, Appellants v. PHELPS COUNTY PUBLIC WATER SUPPLY DISTRICT #4, Respondent
Missouri Court of Appeals, Southern District - SD38542
 

Workers’ compensation

Defective notice didn’t start filing time 
Appellate courts reviewed decisions of the Labor and Industrial Relations Commission for sufficiency of the evidence. The Commission found that claimant’s application for review of an award before an administrative law judge was untimely. The time for filing an application for review started with notice of the award. The award consisted of a dismissal and notice was by certified or registered mail. The mailing record showed the dismissal mailed before it was signed, so the record did not show service by mail, and actual notice occurred eight months later. “Without evidence that the Division served Claimant with the Order of Dismissal in compliance with the statutory notice requirements, the 20-day period to file an application for review did not begin to run, and thus Claimant’s application for review was not untimely.” 
(Overview Summary) 
John W. Tippit, Appellant, v. State of Missouri, Second Injury Fund, Respondent. 
Missouri Court of Appeals, Eastern District - ED113466

Appellate

No investigation by secretary of state, no appeal 
The right to appeal was purely statutory. Individuals could file a complaint with the Secretary of State, on which the Secretary of State could decide whether or not to investigate further. From that decision, no statute provided an appeal. Even if the decision constituted a non-contested case, plaintiff complainant did not show any “legal rights, duties or privileges” necessary to confer standing in circuit court. “[T]he indirect impact of an administrative agency’s decision on a ‘public interest’ is not a ‘private right’ involving a ‘personal claim’ sufficient to support standing to pursue . . . judicial review” so “simply having the right to make a complaint does not necessarily come with additional rights.” The circuit court did not err in dismissing complainant’s petition for judicial review. 
(Overview Summary) 
David J. Harris vs. Missouri Secretary of State 
Missouri Court of Appeals, Western District – WD87717

References to the record required 
Appellate challenges to a ruling based on the record, no support in substantial evidence or against the weight of the evidence, were distinct theories requiring separate and different analyses. Combining them rendered a point relied on multifarious. Each required references to the record, which appellant omitted, even from the statement of facts. After granting an opportunity to correct appellant’s briefing, the Court of Appeals dismissed the appeal. 
(Overview Summary) 
In Re the Matter of: R.K.N., a minor child and by and through next friends, Abdur Nimeri Khalafalla and Abdur Nimeri Khalafalla, Individually vs. Peggy Riessen 
Missouri Court of Appeals, Western District – WD87653

Briefing deficiencies required dismissal 
Appellate rules kept the appellate courts neutral and prevented the appellate courts from constructing arguments for the parties. Each reason for reversal had to appear in a separate point relied on, cite any law declared or applied incorrectly, and set the law “in the context of the facts of the case.” The argument section had to refer to the record on appeal and address only matters raised in the respective point relied on. Any challenge to a ruling as unsupported by substantial evidence had to follow a specified analysis that appellant did not employ. Appellant’s errors preserved no error for review and impeded appellate review. The Court of Appeals dismissed the appeal. 
In re: The Marriage of: Kyndall Ryan Phillips and Hailey Elizabeth Stemel KYNDALL RYAN PHILLIPS, Petitioner-Appellant v. HAILEY ELIZABETH STEIMEL, Respondent/Movant-Respondent 
Missouri Court of Appeals, Southern District – SD38801

Criminal

No plain error review for reference to “defendant’s charge” 
“A circuit court should declare a mistrial sua sponte ‘only in exceptional circumstances.’” That did not describe the State’s reference to instructions on a lesser-included offense as “Defendant’s charges” because defendant could not show any outcome-determinative effect. The Court of Appeals declined plain error review and affirmed the conviction. 
STATE OF MISSOURI, Respondent v. FRANKLIN B. ARMSTRONG, JR., Appellant 
Missouri Court of Appeals, Southern District – SD38582

Evidence and findings on age of victim and defendant discussed 
The elements of statutory rape in the first degree included the victim’s age of less than 14 years. The State offered evidence of victim’s birth date, the date of the events alleged, and the weather on the day of those events. That evidence did not show victim’s age on the day of the events so it was insufficient to support a conviction for first degree statutory rape. But it was sufficient to show the victim’s age for second degree statutory rape. All that remained was a finding of defendant’s age. The Court of Appeals reversed and vacated the conviction for statutory rape in the first degree and remanded the action for a new trial on the lesser offense of statutory rape in the second degree. 
DOYLE EDWARD HITCHCOCK, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent 
Missouri Court of Appeals, Southern District – SD38719

DWI

Traffic violations supported a stop 
Plain error review was discretionary and required appellant to plead a manifest injustice or miscarriage of justice. That did not describe a traffic stop based on probable cause in the form of a traffic violation, even a minor violation. Driving without headlights on and stopping in an intersection, were traffic violations that supported a stop so the face of appellant’s pleading did not show a manifest injustice or miscarriage of justice. The Court of Appeals declined plain error review of the circuit court’s failure to sua sponte suppress evidence resulting from the stop. 
STATE OF MISSOURI, Plaintiff-Respondent v. BRANDON WILLIE WALLS, Defendant-Appellant 
Missouri Court of Appeals, Southern District – SD38786

Elections

No action by ethics commission, no appeal 
The right to appeal was purely statutory. Individuals could file a complaint with the Ethics Commission, on which the Commission could decide whether or not to take further action. From that decision, no statute provided an appeal. Even if the decision constituted a non-contested case, plaintiff complainant did not show any “legal rights, duties or privileges” necessary to confer standing in circuit court. “[T]he indirect impact of an administrative agency’s decision on a ‘public interest’ is not a ‘private right’ involving a ‘personal claim’ sufficient to support standing to pursue . . . judicial review” so “simply having the right to make a complaint does not necessarily come with additional rights.” The circuit court did not err in dismissing complainant’s petition for judicial review. 
(Overview Summary) 
David J. Harris vs. Missouri Ethics Commission 
Missouri Court of Appeals, Western District – WD87716

Health

Preliminary injunctions upheld in planned parenthood case 
The Supreme Court had exclusive appellate jurisdiction in actions challenging a statute’s constitutionality. That did not describe a preliminary injunction issued in such an action because preliminary injunctions did not require, and did not constitute, a ruling on constitutional issues. Therefore, the Court of Appeals did not reach constitutional issues and reviewed preliminary injunctions for abuse of discretion, and only on issues raised in circuit court. The elements of a preliminary injunction included likelihood of success on the merits, which necessarily included whether a circuit court would reach the merits, which included matters of justiciability. Controversies over a statute’s constitutionality could be ripe before the State filed an action to enforce those statutes and the State’s promise not to enforce some of the challenged statutes did not moot that controversy. Rulings challenged on less than all supporting rationales were not subject to review, so the Court of Appeals did not review plaintiffs’ standing as a third party when defendants did not challenge plaintiffs’ standing as a first party. The prosecuting attorney was a proper defendant so the county was a proper venue. Plaintiffs’ prima facie case, that the challenged statutes violated constitutional anti-discrimination provisions, raised a presumption of invalidity that the State did not rebut. That violation would constitute irreparable harm, the prevention of which was in the public interest. “[T]he circuit court[’s] exhaustive consideration of the preliminary injunction” showed no abuse of discretion. 
(Overview Summary) 
Comprehensive Health of Planned Parenthood Great Plains, et al. vs. State of Missouri, et al. 
Missouri Court of Appeals, Western District – WD88244

Local government

State pay limited during federal deployment 
Statutes addressed the retention of State employment rights and benefits while deployed as part of the National Guard. One statute applied to federal deployment and preserved “pay status.” The other statute applied to deployment by State authority and preserved a right to receive pay for 120 days. The latter statute applied to plaintiff. 
(Overview Summary) 
David Woody vs. Patrick Clark, Jay Bettis, & Richard Riddell 
Missouri Court of Appeals, Western District – WD87715

Personal injury

Clerical abuse statute of limitations was tolled pending bankruptcy 
Claims for relief required plaintiffs to show standing, which included a legally enforceable right to relief. Rights to relief transferred in bankruptcy from the debtor to their bankruptcy estates, including pending claims for relief, so debtors’ claims ceased to be the debtors’ property. Plaintiff sought bankruptcy protection before seeking relief from past clerical abuse. But that action remained plaintiff’s property, even after bankruptcy, because the claim accrued when reasonably ascertainable. Reasonably ascertainable claims did not include claims that were subject to suppressed memories, so the claim accrued when the plaintiff recovered the suppressed memory, and plaintiff filed timely from that date. 
(Overview Summary) 
John J.P. Doe, Appellant, v. Archdiocese of St. Louis, et al., Respondents. 
Missouri Court of Appeals, Eastern District – ED112916

Post-conviction

Claim not preserved for appeal 
Claims not raised in circuit court were waived. Movant’s motion alleged that movant’s sentencing resulted from a mistake of law by the circuit court or ineffective representation by appellate counsel. A claim that movant’s sentencing resulted from ineffective representation by trial counsel did not appear in any motion and so was waived. The Court of Appeals affirmed the judgment denying relief. 
STATE OF MISSOURI, Respondent v. JAMES GUTHRIE, Appellant 
Missouri Court of Appeals, Southern District – SD38707

Utilities

Video service provider act amendments applied 
The Video Service Provider Act required video service providers to pay a fee to municipalities whose rights of way the providers used. The General Assembly amended the Act’s definition of video services to exclude streaming services. The General Assembly could not extinguish debts to government entities and amendments presumptively altered the law prospectively. But amendments could also clarify existing law, especially in response to a judicial interpretation, which did not raise retrospectivity issues. Such was the case with the amendments as narrowly tailored language showed. The General Assembly never intended to subject streaming service providers to the fee, so the General Assembly did not extinguish any debt, and the amendments did not unjustly enrich streaming service providers. Local rule restricted amici curiae to persons who plead issues otherwise unaddressed, which movants for amicus status failed to do. 
(Overview Summary) 
City of Creve Coeur, Missouri, Appellant, vs. DirecTV, LLC, et al., Respondents. 
Missouri Court of Appeals, Eastern District - ED113308

ADR

Arbitration waived 
The parties’ contract included an arbitration clause, but arbitration was subject to waiver by conduct inconsistent with arbitration. Appellant defendant waived arbitration by going to trial and failing to raise arbitration until after judgment. The appellant was “charged with knowledge of what she signed, and she is deemed to have understood the meaning of the word ‘arbitration.’” Appellate courts had authority over final judgments. When a judgment explicitly disposed of one issue as to all parties, and that disposition implicitly disposed of all other issues as to all parties, the judgment was final. So when the plaintiff pleaded alternative and mutually exclusive claims for relief from a single harm, and the circuit court granted it relief on one, it implicitly denied the others. The circuit court granted relief for breach of contract, implicitly denying claims in quantum meruit and unjust enrichment, and rendering the judgment final. 
(Overview summary) 
Como Premium Construction LLC, D/B/A Como Premium vs. Erin L. Pulster 
Missouri Court of Appeals-Western District – WD87585

Civil

Inability to pay fees not shown 
Circuit courts could not penalize a party for failure to pay fees when unable to pay fees as determined by certification filed with the circuit clerk by counsel retained through a legal aid entity. Regulations of the Family Support Division for its own determinations of child support did not govern the circuit court’s judgment. All other points on appeal were inadequately briefed to a degree that an appellate court could not rule on them without becoming an advocate for the appellant. 
(Overview summary) 
In RE the Marriage of: Nathan Goodpasture vs. Sandy Goodpasture 
Missouri Court of Appeals-Western District – WD87412

Summary judgment affidavit showed first-hand knowledge 
Affidavits in support of a motion for summary judgment had to show that the affiant’s testimony stood on personal knowledge. Objections not raised in circuit court were not preserved for appellate courts. The Fair Credit Reporting Act required prospective employers to give certain notices to prospective employees about prospective employers’ possible use of credit reports on prospective employees when making hiring decisions. As to that matter, an affiant’s statements of personal knowledge of the facts stated in the affidavit were sufficient. A response to a motion for summary judgment had to raise a genuine dispute as to a material fact, and attach any supporting exhibits, to become part of the summary judgment record or be disregarded on appellate review. The circuit court’s summary judgment showed that it was on the merits and not on any issue of justiciability. 
(Overview summary) 
Hernandez Campbell vs. Adecco USA, INC. 
Missouri Court of Appeals-Western District – WD87399

Counter-claim time-barred 
The parties filed a claim and a counter-claim, each constituting an action on account. An action on account was an action in contract for each of a series of transactions that left a balance due and, if none of such transactions involved a written promise to pay money, the time to file a claim was five years. The defendant’s evidence showed amounts due the defendant more than five years before the defendant filed the counter-claim. That amount was due the defendant, the circuit court found. But the evidence did not show, and the circuit court did not find, any transaction within five years of when the defendant filed the counter-claim. “While we defer to the trial court’s factual finding, we conduct a de novo review of the trial court’s application of law to the facts.” The Missouri Court of Appeals affirmed the judgment for the plaintiff, reversed the judgment for the defendant, and remanded the action to circuit court for a judgment awarding damages to the plaintiff only. 
WAYNE MORELOCK, Plaintiff-Appellant v. BURRITO CONCEPTS, LLC, Defendant-Respondent 
Missouri Court of Appeals-Southern District – SD38667

Criminal

No amending judgment after sentencing 
Imposing and announcing sentence in the defendant’s sentence ended the circuit court’s authority, except to memorialize the sentence as spoken, even with the parties’ agreement otherwise. At the sentencing hearing, the parties agreed to 30 days more for a memorandum on restitution, and the circuit court imposed a sentence of confinement. On receipt of the memorandum, the circuit court ordered restitution, but the imposition of sentence had already ended the circuit court’s authority, so the order of restitution was void. 
(Overview summary) 
State of Missouri vs. Cody Boehmer 
Missouri Court of Appeals-Western District – WD87379

Conviction for resisting a stop by fleeing affirmed 
The elements of class E felony resisting a lawful stop by fleeing included a substantial risk of serious physical injury. That element had support in the record, because the state introduced evidence that the defendant drove through a stop sign and passed three vehicles at 100 miles per hour, and that such speed could have killed someone. “[T]he fact no one was actually injured or killed during the high-speed pursuit” did not negate the jury’s conclusion. 
(Overview summary) 
State of Missouri vs. Cody Lee Kiser 
Missouri Court of Appeals-Western District – WD87073

Closing arguments okay 
The state’s argument that an acquittal meant “open season” was not improperly personalized. Closing argument could include reasonable inferences from the evidence. The state’s expert did not draw any conclusion as to which of the defendant’s multiple shots struck the victim first but the state’s closing argument drew inferences as to which shot was first. The state defense did not object and the circuit court did not intervene sua sponte. Circuit court intervention sua sponte in closing argument could constitute error, so non-intervention was rarely error, and this was no exception. Also, which shot happened first was not related to any element of first-degree murder. Because the defendant showed neither error nor any resulting manifest injustice, the Missouri Court of Appeals declined plain error review. The written sentence of 999 years for armed criminal action varied from the spoken sentence of three years so the Missouri Court of Appeals remanded the action for an order correcting the judgment nunc pro tunc. 
STATE OF MISSOURI, Plaintiff-Respondent v. MICHAEL LEE CREEKMORE, Defendant- Appellant 
Missouri Court of Appeals-Southern District – SD38662

Possession shown 
The elements of class C felony delivery of a controlled substance included possession, meaning at least “access to and control of the premises where” law enforcement officers found, a controlled substance. The state showed that element through the defendant’s statement to law enforcement that everything in the house was his. The elements of class D felony endangering the welfare of a child in the first degree included the presence of a child in a residence where the defendant possessed methamphetamine. The state showed that element through the defendant’s statement to law enforcement that children were present in the house with methamphetamine. Verdict director language on joint possession did not cause manifest injustice, considering the evidence of guilt, so no plain error occurred in submitting that language to the jury. The state’s response to the defendant’s closing arguments did not constitute error, so the Missouri Court of Appeals declined plain error review. The Court of Appeals affirmed the convictions. 
STATE OF MISSOURI, Plaintiff-Respondent v. JOSHUA EDWARD DONALD WEBB, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38427

Juvenile

No admissions from disabled juvenile 
“When a constitutional right is violated, a circuit court's failure to follow a statute will warrant plain error review.” Plain error occurred when the circuit court gave effect to an admission not shown on the record to have been made knowingly, voluntarily, and intelligently. On multiple pleadings and proceedings, with charges against both appellant juvenile and parent, the juvenile never stated that he committed the offense ultimately charged, or any other, so there was no factual basis for the admission. 
(Overview summary) 
In the Interest of: A.B. vs. Juvenile Officer 
Missouri Court of Appeals-Western District – WD87452

Local government

Redevelopment authority did not show sovereign immunity 
A party without the burden of proof could prevail on summary judgment by establishing facts beyond dispute that negated an element of the claim. The plaintiff’s petition sought to hold the defendants liable for defendants’ respective actions, so the plaintiffs could not raise a theory of agency in response to the defendants’ motion for summary judgment in circuit court or appellate court. The defendants’ promise to cooperate on redevelopment did not constitute a duty to support the plaintiff’s redevelopment efforts. The defendants’ promise to negotiate a further agreement did not constitute a duty to reach an agreement. As to tort actions, sovereign immunity could apply to entities that were “enough like a public entity” in qualities that included public accountability for its activities. The defendant failed to establish such facts, and the record showed the opposite, so the circuit court erred in granting the defendant’s motion for summary judgment. 
(Overview summary) 
Bank of Washington, Appellant, vs. Land Clearance for Redevelopment Authority of the City of St. Louis, and LCRA Holdings Corporation, Respondents. 
Missouri Court of Appeals-Eastern District – ED113056

Personal injury

Stock law applied 
The Stock Law provided that the animals’ owners were liability for injuries caused by the owners’ animals outside their enclosure, unless the owner was not negligent, so the absence of owner negligence was an affirmative defense. The defendant supported that affirmative defense with evidence on the condition of the fence and animal behavior. Objecting four times to evidence offered nine times did not preserve the objection. No prejudice occurred from admitting evidence that appellant also elicited. No prejudice occurred from the exclusion of photographs showing the fence’s condition when the circuit court admitted other evidence on the same matter. 
(Overview summary) 
Daniel Brothers, Appellant, v. Edward James Becker, Respondent. 
Missouri Court of Appeals-Eastern District – ED112609

Civil

No good cause shown for failure to appear 
To set aside the circuit court’s judgment, defendant had to show good cause. Good cause could include failing to show up for trial because of a miscommunication. Miscommunication was not the issue, because trial counsel did not show any communication about showing up for trial, so the failure to appear was reckless at best. The circuit court did not have to call defendant’s trial counsel before proceeding with the trial. At trial, plaintiff’s counsel established each element of a claim for breach of contract and unjust enrichment. The post-trial record showed that the circuit court did not abuse its discretion in awarding attorney fees for defense raised frivolously and in bad faith. 
(Overview summary)
Jeanette A. Vogt, Respondent, vs. Walls Real Estate Company, Appellant.
Missouri Court of Appeals-Eastern District – ED113206

Criminal

Enhanced offense explained 
Class D felony unlawful possession of a firearm was a class C felony if the state showed beyond reasonable doubt that the defendant had committed a dangerous felony in Missouri or a foreign jurisdiction’s equivalent. Dangerous felonies included armed criminal action. California convictions for assault with a firearm, with enhanced punishment for using a firearm in the commission of a felony, were the equivalent of armed criminal action, so the class D felony became a class C felony. The Missouri Court of Appeals affirmed the conviction. 
STATE OF MISSOURI, Plaintiff-Respondent v. JOHNNY CROWELS, Defendant-Appellant
Missouri Court of Appeals-Southern District – SD38648

Speedy trial time calculated 
A stop for violation of traffic laws was a reasonable seizure for as long as needed to investigate the traffic violation and make a disposition. The record supported a finding that the stop was taking no longer than that when law enforcement found contraband in defendant’s possession. The measurement of whether a trial was speedy started with the filing of the charging instrument and did not include defendant’s delays. The time was less than the eight-month period that constituted a presumptively unlawful delay. 
STATE OF MISSOURI, Respondent v. ALONZO T. MACK, Appellant
Missouri Court of Appeals-Southern District – SD38518

No lesser-included offense instructions required 
“[I]f an offense is charged, [and] has degrees, that lower degree is by statute a lesser[-]included of a higher offense[.]” Instructions on lesser-included offenses were due on request when the record supported acquittal on the higher offense and conviction on the lower offense. On charges of first-degree statutory sodomy and second-degree child molestation, defendant respectively sought instructions for same offenses in the second degree and fourth degree. Each degree was based on the victims’ ages, as to which there was no dispute, so the circuit court did not err in denying those instructions. 
(Overview summary)
State of Missouri vs. Joshua S. Shackley
Missouri Court of Appeals-Western District - WD87330

No opinion on credibility offered 
Lay witnesses generally could not testify to anyone’s credibility. A witness testified on redirect as to why the witness did not seek alternative explanations for the victim’s account, but did not offer any opinion on anything, so no error occurred in admitting that testimony. The Missouri Court of Appeals remanded the action for the circuit court to enter judgment nunc pro tunc changing the dismissal of a charge to acquittal on that charge. 
(Overview summary)
State of Missouri vs. Rashede Harrigan
Missouri Court of Appeals-Western District - WD87230

Sentence must be corrected 
“The circuit court’s written judgment should reflect its oral pronouncement of sentence before the defendant.” The written judgment read both 999 years in one place and life in prison in another. The difference was material for parole purposes. The Missouri Court of Appeals remanded the action for a judgment nunc pro tunc reflecting the sentence of announced in open court. 
(Overview summary)
State of Missouri vs. Howard Kristopher Moots
Missouri Court of Appeals-Western District - WD86942

Employment security

Appeal from dismissal could not reach merits of claim 
The Missouri Court of Appeals had jurisdiction to hear appeals from the Labor and Industrial Relations Commission’s decisions. Commission decisions to dismiss an action for untimely filing were subject to review of the dismissal, not the merits of the dismissed action. The commission dismissed appellant’s action for untimely filing, so appellant had to show error in the dismissal. The merits of the claim were not before the Missouri Court of Appeals because the commission never decided the merits of the claim. The record showed that appellant filed the action out of time, so the Missouri Court of Appeals affirmed the commission’s decision to dismiss the action. 
(Overview summary)
Samantha Bordas, Appellant, vs. FedEx Freight, Inc. and Division of Employment Security, Respondents.
Missouri Court of Appeals-Eastern District – ED113329

Hearsay objection forfeited by wrongdoing 
The rule against hearsay barred testimony relating a declarant’s out-of-court statements, when offered for the proof of the matter stated, with a few exceptions. Exceptions included forfeiture by wrongdoing, which allowed testimony about the declarant’s out-of-court statements into evidence when the declarant was unavailable to testify in court to the matter because of defendant’s wrongdoing. Wrongdoing described defendant’s communication with the victim to influence the victim to disobey a subpoena and not testify. No threat was necessary for the communication to constitute wrongdoing; “manipulation, persuasion, and blame” were sufficient. The circuit court did not abuse its discretion in admitting the hearsay. The Missouri Court of Appeals declined plain error review of a Confrontation Clause objection not made in circuit court and affirmed the convictions. 
STATE OF MISSOURI, Respondent v. ORLANDO C. MOORE, SR., Appellant 
Missouri Court of Appeals-Southern District – SD38242

Juvenile

No grounds for division custody 
“A parent’s right to raise [their] children is a fundamental constitutional right” so appellate courts “must be diligent to uphold the requirements of due process and protect the parent’s fundamental liberty interest in the parent-child relationship.” Appellant parent was not liable for the other parent’s conduct. The Department of Social Services Children’s Division could take custody of children from appellant parent for failure to provide proper care, custody, or support; but the circuit court found no domestic violence and no other criminal conduct that projected the parent’s future likelihood of engagement in the charged conduct. The circuit court’s judgment was, therefore, against the weight of the evidence. The Missouri Court of Appeals vacated the judgments. 
In the Interest of: J.H.B. and J.A.B, minor children, GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent v. J.E.B., JR., Natural Father, Respondent-Appellant 
Missouri Court of Appeals-Southern District – SD38913 and SD38914 Consolidated

Mental health

SVP confinement affirmed 
The elements of an action to confine respondent under the Sexually Violent Predator Act included clear and convincing evidence that respondent was more likely than not to re-offend. That was exactly the opinion of the state’s expert as supported by the expert’s review of data, which constituted “sufficient, substantial, and overwhelming evidence [,]” especially considering that respondent ceased to offend “only because he was caught." An objection to the foundation for the expert’s testimony constituted a challenge to admissibility and not sufficiency; so when not raised in circuit court, that objection did not support a challenge to the sufficiency of the evidence on appeal. 
(Overview summary)
In the matter of the Care and Treatment of H.R., a/k/a H.J.R. vs. State of Missouri
Missouri Court of Appeals-Western District – WD87338

Post-conviction

Choice of witnesses okay 
Relief for ineffective counsel required the movant to show that counsel’s performance was below professional standards and reasonably probably affected the outcome. That did not include impeachment witnesses and included only witnesses only who would have “unqualifiedly” helped the defense. That did not describe potential witnesses whose testimony would have been impeachment, mostly hearsay, and otherwise inadmissible. 
(Overview summary)
Mose L. Martin, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District – ED112788

No successive motions 
The judgment on appellant movant’s first motion denied relief on the merits, and did not dismiss the motion, so no designation of “with prejudice” was necessary to bar a successive motion. One rule barred successive motions and another did not, but the absence of a bar did not constitute authorization. And appellant movant did not contest the application of res judicata to dismiss the successive motion. An appeal from the dismissal of the successive motion could not include any challenge to findings made in the first motion. The Missouri Court of Appeals affirmed the judgment dismissing the successive motion. 
STATE OF MISSOURI, Respondent v. BRYAN C. KEATHLEY, Appellant 
Missouri Court of Appeals-Southern District – SD38615

No relief from sua sponte withdrawal of guilty plea 
“[D]ouble jeopardy does not attach when a defendant consents to termination of the proceeding.” That included implicitly consenting to the circuit court’s sua sponte withdrawal of a first guilty plea by not objecting and accepting a second — and better — guilty plea. The remedy for a double jeopardy violation was vacatur of the conviction but movant sought only a credit for time served. The choice not to make an objection did not show that plea counsel was ineffective because the circuit court was so angry about a lapse in the state’s practice that an objection would have made no difference. And the circuit court’s sentencing was not limited by the plea agreement. 
(Overview summary)
Jermaine D. Williams vs. State of Missouri
Missouri Court of Appeals-Western District – WD87599

No final judgment, no review 
The Missouri Court of Appeals had jurisdiction to review a final judgment on the motion. Final judgment on the motion occurred when the circuit court ruled on all claims as to all parties. Of the motion’s 16 claims, the circuit court ruled on 15. The judgment was not final, so the Missouri Court of Appeals dismissed the appeal. 
(Overview summary)
Adam Woodworth vs. State of Missouri
Missouri Court of Appeals-Western District – WD87404

Direct appeal foreclosed motion 
When “no error occurred, the issue cannot be relitigated in a post-conviction proceeding.” On direct appeal from movant’s conviction, the Missouri Court of Appeals held no error, plain or otherwise, occurred in the admission of a police officer’s testimony. That testimony identified movant from frequent presence about the police station. That ruling barred movant from arguing that trial counsel should have objected to the testimony, because it showed that an objection to the testimony would have been meritless, and trial counsel was never ineffective for failure to make a meritless objection to testimony. 
(Overview summary)
Eddie B. Linzie vs. State of Missouri 
Missouri Court of Appeals-Western District – WD87336

Real estate

Inverse condemnation was the sole remedy 
Respondent city laid a sewer pipe beneath relator homeowner association’s land. The sewer ruptured and spilled sewage onto that land. The association brought an action in circuit court for damages under several theories and the city filed a motion for judgment on the pleadings. Judgment on the pleadings was due for defendant when plaintiff’s petition failed to state a claim. The city then sought a writ of prohibition in the Missouri Court of Appeals. “[P]rohibition will lie if plaintiff’s petition does not state a viable theory of recovery, and relator was entitled to be dismissed from the suit as a matter of law.” The only remedy against an entity having the power of eminent domain was an action for inverse condemnation. The Missouri Court of Appeals made permanent its preliminary writ of prohibition to bar the circuit court from doing anything but granting either the city’s motion or any leave sought to amend the association’s petition. 
STATE OF MISSOURI EX REL. CITY OF OSAGE BEACH, Relator v. THE HONORABLE AARON G. KOEPPEN, Respondent 
Missouri Court of Appeals-Southern District – SD38855

Workers’ compensation

No backing out of settlement 
Employer’s pleadings and ample evidence showed that claimant was employer’s employee. Circuit court orders nunc pro tunc could correct decisions of the Labor and Industrial Relations Commission, not on the merits of decisions, but only to reflect what actually happened by correcting clerical errors. Clerical errors could be presumed from an examination of the record. The record recited employer’s name uniformly except in one instance, the settlement, so substantial evidence supported the correction of the settlement. And repudiation of the settlement based on the clerical error might “expose a party to further liability and its attorneys to potential disciplinary consequences.” 
(Overview summary)
David Kell, Respondent, vs. Walker Recycling Company, LLC, Appellant.
Missouri Court of Appeals-Eastern District – ED113338

Appellate

Briefing deficiencies required dismissal
The prescribed format for briefs protected the courts’ neutrality. In the appellants’ amended brief, the statement of facts included argument and failed to “concisely detail the basic factual background necessary to resolve their claims on appeal.” The points relied on failed to follow the prescribed template or include the template’s elements, or combined matters in multifarious points. Preservation statements and an appendix were absent. The argument failed to apply law to the facts or quoted language not found in the cited authorities. The deficiencies impeded appellate review, so the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
David Mecey and Robin Mecey, Appellants, v. Harps Food Stores, Respondent
Missouri Court of Appeals-Eastern District - ED113183

Briefing deficiencies impeded appellate review
Appellate courts preferred resolution on the merits but had to maintain neutrality. Neutrality was in danger when an appellate brief so departed from the governing rules that an appellate court had to figure out the arguments for itself. Appellant’s statement of facts included argument with only three citations to the record and omitted the transcript. Appellant’s points relied on failed to identify the ruling challenged and any facts supporting relief from that ruling. Appellant’s argument omitted the standard of review and failed to apply the law to the facts. The Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Nicole E. Bazuaye vs. Lawrence Bazuaye
Missouri Court of Appeals-Western District - WD87755

Criminal

Irremediable prejudice was necessary to support mistrial
Defendant’s evidence could “open the door” to otherwise inadmissible evidence from the state. The circuit court cautioned the defense about suggesting a motive for the victim to fabricate allegations. The state countered on re-direct, the circuit court barred a response, and the jury acquitted defendant on five of six counts. Those events did not show an implication of prior bad acts so prejudicial as to be irremediable and require a mistrial. The Missouri Court of Appeals affirmed the conviction.
(Overview summary)
State of Missouri, Respondent, vs. Kevin P. Coplin, Appellant
Missouri Court of Appeals-Eastern District - ED112914

No plain error review for strategic errors
A motion in limine did not preserve an issue for appeal; only an objection at trial could do that. And the objection at trial had to match the argument for exclusion on appeal. A statement of “no objection” waived even plain error review because plain error review was a remedy for inadvertence and not for strategic errors. Plain error review required appellant to describe an error that was obvious and outcome-determinative. The elements of persistent offender status were findings of guilt on more than one felony “committed at different times.”  No plain error occurred when the circuit court instead of a jury made the finding of persistent offender status because that status was admitted. The Missouri Court of Appeals affirmed the circuit court’s judgment.
(Overview summary)
State of Missouri, Respondent, v. Shyheim El-Mumin, Appellant
Missouri Court of Appeals-Eastern District - ED112755

Conviction affirmed for endangering the welfare of a child
Any inference that supported the elements of the charged offense constituted sufficient evidence of guilt, other possible inferences notwithstanding, and false statements showed consciousness of guilt. On a charge of felony first-degree endangering the welfare of a child, evidence that defendant improperly applied the restraints of a car seat supported a finding of guilty. Those facts, and leaving the victim unsupervised, satisfied the element of recklessness for first-degree involuntary manslaughter. The circuit court submitted the approved instruction for endangering the welfare of a child resulting in death. That instruction departed from the statutory language by substituting “resulted in” victim’s death with “caused” victim’s death. The two terms meant the same thing, so no plain error occurred in the use of that instruction.
STATE OF MISSOURI, Plaintiff-Respondent v. DEBORAH K. LUNDSTROM, Defendant-Appellant
Missouri Court of Appeals-Southern District - SD38528

Evidence

Foundation for social media posts discussed
Erroneous evidentiary rulings required reversal only if outcome-determinative. Online and social media messages were subject to the same foundation of authenticity as other writings: some evidence that the document is what it purports to be. The state offered exhibits from defendant’s online account to negate defendant’s self-defense theory. Testimony about the source account, defendant’s exclusive access to it, and the time of the posts established the foundation for admissibility; other testimony went only to the weight of the evidence, so no error occurred. Even if error occurred, the exhibits were not outcome determinative.  The Missouri Court of Appeals affirmed the convictions.
(Overview summary)
State of Missouri, Respondent, v. Janaya Neither, Appellant
Missouri Court of Appeals-Eastern District - ED112866

Sufficiency distinguished from admissibility
A warrant application cited informants’ recent and detailed first-hand observations corroborated by police observations, so no plain error occurred when the circuit court admitted the resulting evidence into the record. Appellant challenged the sufficiency of the evidence and argued that the substance found and the substance tested were not the same substance. But that argument was really an objection to the chain of custody, to which appellant made no objection. Circumstantial evidence linked the substance to paraphernalia in appellant’s actual and constructive possession, supporting appellant’s convictions. Appellant had the right to trial counsel or to defend without counsel, but not both, and no right “to play a ‘cat and mouse’ game with” the matter. Appellant repeatedly waived trial counsel and did not ask for counsel to draft a post-trial motion, so no denial of counsel occurred.
STATE OF MISSOURI, Respondent v. ANDREW J. SALES, JR., Appellant
Missouri Court of Appeals-Southern District - SD38593

Juvenile

Transfer was moot
Appellate courts did not rule on matters as to which a ruling offered no relief. Appellant sought a ruling on which one of two juvenile division orders was effective to certify appellant as an adult and transfer appellant to circuit court for prosecution under the criminal laws. Appellant agreed that at least one such order was effective, so which one it was did not matter. No exception to the mootness doctrine applied. The Missouri Court of Appeals dismissed the appeal as moot.  
(Overview summary)
In the interest of: A.J.K.
Missouri Court of Appeals-Eastern District - ED112633 

Workers' compensation

No disability from secondary injury
The Second Injury Fund was liable for benefits when an earlier injury and a later injury combined to render claimants permanently and totally disabled. If the later injury alone caused permanent and total disability, on appellate review of claims, absent fraud, the Labor and Industrial Relations Commission’s findings of fact were conclusive when supported by substantial and competent evidence. Substantial and competent evidence supported a finding that an earlier injury had already rendered claimant permanently and totally disabled because the commission resolved conflicting testimony against the claimant on that matter.
(Overview summary)
Anthony Easley, Appellant, v. Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent
Missouri Court of Appeals-Eastern District - ED113451

No re-weighing of evidence in court
In workers’ compensation claims, claimants had the burden of proof. The decision of the Labor and Industrial Relations Commission had to stand on substantial and competent evidence, which was not the case when the decision was against the weight of the evidence. The weight of the evidence meant the quality of the evidence, which the commission decided and appellate courts did not. The commission expressly found the claimant not credible, especially considering the employer’s surveillance videos. The Missouri Court of Appeals affirmed the decision.
ROBERT BYERS, Appellant v. NEW PRIME, INC., Respondent
Missouri Court of Appeals-Southern District - SD38916

Administrative

Attorney fees award affirmed in Planned Parenthood case
An executive branch agency’s authority to investigate did not necessarily include the power to compel compliance with the investigation. An executive branch agency’s decision was subject to review in circuit court, and that judgment was subject to review in the Missouri Court of Appeals. The Missouri Court of Appeals ruled on the judgment by reviewing the decision — not the judgment — and that review did not include relitigation of the action. A point relied on challenging the judgment was therefore subject to dismissal, but appellate courts preferred to rules on the merits, so the Missouri Court of Appeals reviewed the decision. On appeal from a later decision that incorporated by reference an earlier ruling, both decisions were at issue. The decision awarded litigation expenses under statutes describing state litigation against certain parties. Parties had to have less than a certain amount of net worth, which did not include related entities. Executive branch agencies had no authority to apply equitable remedies like piercing the corporate veil, and appellant did not establish the elements of that claim. And the appellant department could not raise arguments under the United States Equal Access to Justice Act when it did not raise that act before the tribunal that made the award. The department’s position in a contested case had no substantial justification, meaning no serious basis in fact, or no serious basis in law. For a licensed health care facility, revocation of the facility’s license required proof that the facility failed to substantially comply with governing laws, and two violations out of 4,000 procedures, especially given the “volume and extent of the unreasonable allegations that formed the Department’s most serious and admittedly dispositive allegations,” did not constitute a serious basis for revocation in fact and law. The facility incurred the litigation expenses in that it reimbursed related payors for those expenses. “Courts routinely award attorney’s fees where legal counsel have provided their services pro bono.” The Missouri Court of Appeals affirmed the Administrative Hearing Commission’s award and remanded the action for a determination of the award for defending in the Missouri Court of Appeals.
(Overview summary)
Missouri Department of Health and Senior Services vs. Reproductive Health Services of Planned Parenthood of the St. Louis Region
Missouri Court of Appeals-Western District - WD87223

Appellate

Failure to follow rules yielded dismissal
Rules of appellate procedure preserve the courts’ neutrality, and failure to comply with those rules was cause for dismissal. Appellants had to file a complete record on appeal. A statement of facts had to recount the evidence, in the light most favorable to the judgment, with references to the record. Those references were necessary to show the interaction of fact and law. When challenging a judgment as against the weight of the evidence, appellant had to follow a specified analysis. Failure to comply with those rules prevented the Missouri Court of Appeals from ruling on the merits of appellants' appeal, so the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Clyde O. Carter, Sr. and Linda Darnell Bowie Carter vs. Clyde O. Carter, Jr.
Missouri Court of Appeals-Western District - WD87124 (consolidated with WD87125)

Notice of appeal was untimely
Decisions of the Labor and Industrial Relations Commission became final within a specified time after mailing. The commission’s certification of mailing established the date of mailing. Finality started the time to seek judicial review of the decision by filing of a notice of appeal in the Missouri Court of Appeals, which appellant missed by almost three months. “While there are procedures for filing a late notice of appeal in other civil matters, they do not apply to special statutory proceedings such as unemployment cases [.]” For lack of jurisdiction to hear the appeal, the Missouri Court of Appeals dismissed the appeal.
(Overview summary)
Jayla Chairse, Appellant, vs. Division of Employment Security, Respondent
Missouri Court of Appeals-Eastern District - ED113189

Ruling on final judgment mooted interlocutory appeal
Appellate court dismiss appeals in which events have rendered an opinion unnecessary or ineffective. Pending an interlocutory appeal from rulings on motions, the Missouri Court of Appeals issued its opinion on the final judgment in the same action, mooting the interlocutory appeal. The Missouri Court of Appeals dismissed the interlocutory appeal.
(Overview summary)
Sophia Chu, Respondent, v. William L. "Bryan" Nanna, Appellant
Missouri Court of Appeals-Eastern District - ED113078

Civil

Uniform Enforcement of Foreign Judgments Law applied
The Uniform Enforcement of Foreign Judgments Law applied to judgment of other states in the United States of America, not to foreign nations, and required a verified petition. Courts enforced those requirements strictly. Plaintiff’s motion for registration did not comply with those requirements, so the circuit court erred in denying defendant’s motion to dismiss. The Missouri Court of Appeals reversed the circuit court’s judgment on the motion and entered a judgment of dismissal.
(Overview summary)
Sophia Chu, Respondent, v. William L. Nanna, Appellant
Missouri Court of Appeals - Eastern District - ED113487

Criminal

Probation revocation prohibited
Probation was subject to revocation on reasonable satisfaction that a violation of conditions occurred, as determined after due process that included notice and an opportunity to be heard, and confrontation of state witnesses. At the hearing, the state offered only of a Notice of Citation that stated “arrested for DWLR/S,” and an undisclosed witness who knew of that Notice of Citation and nothing more. The Missouri Court of Appeals made permanent its writ of prohibition barring revocation on the record made at the hearing.
(Overview summary)
State of Missouri, ex rel. Michael Joe Butler, Relator, v. Honorable Joseph Rathert, Circuit Judge, Respondent
Missouri Court of Appeals-Eastern District - ED113612

Employment

Sex discrimination shown
The failure to exhaust administrative remedies was an affirmative defense that the asserting party had to plead by “clearly and precisely” alleging facts establishing that defense and, to preserve it for appellate review, raise the matter in a motion for directed verdict at the close of all evidence and a motion for judgment notwithstanding the verdict. The time limit for seeking relief under the Human Rights Act for sex discrimination was “no later than two years after the alleged cause occurred or its reasonable discovery by the alleged injured party [,]” except where continuing violations that extended further into the past, which the plaintiff showed. Plaintiff also showed a hostile work environment with evidence that male employees received favorable budgeting and access to physical resources, which made work more difficult to accomplish, based on plaintiff’s gender. Objections to instructions were untimely, and an objection to inconsistent verdicts was not made, so both were waived. The Missouri Court of Appeals denied a motion to strike an exhibit that the moving party relied on in briefing. The Missouri Court of Appeals declined plain error review on remaining points and remanded the action to determine an award of attorney fees for the prevailing party.  
(Overview summary)
Beverly Brennan, Respondent, vs. Harris-Stowe State University, Appellant
Missouri Court of Appeals-Eastern District - ED112917

Health

No HIPAA protections from investigative subpoenas
When investigating alleged violations of the Missouri Merchandising Practice Act, the attorney general had authority to issue civil investigative demands, which were subject to rules governing discovery in civil actions, including in-camera review, protective orders, and the use of a special master. Circuit court actions to determine the enforceability of such demands were subject to review in the Missouri Court of Appeals by constitutional provision that rendered a contrary statutory provision obsolete. The demands could not procure privileged information but respondent waived any privilege not raised in circuit court. The United States Health Information Portability and Accountability Act generally barred the disclosure of certain health-related information with specific exceptions, including to a health oversight agency or administrative tribunal, but those words did not describe the attorney general. The Missouri Court of Appeals remanded the action for the circuit court to redetermine and order which information shall be subject to production, including whether “de-identified” or “anonymized” information satisfy the demands, which was the attorney general’s burden.
(Overview summary)
The Washington University, Respondent, v. Catherine L. Hanaway in her official capacity as Attorney General of the State of Missouri, Appellant
Missouri Court of Appeals-Eastern District - ED113034

Juvenile

Strickland standard applied to certification counsel
In actions to certify juveniles for trial under general criminal statutes, each juvenile had the right to effective counsel, determined by whether any substandard performance by certification counsel the prejudiced the juvenile. Appellant juvenile charged that certification failed to present expert testimony on adolescent brain development to show that further services could rehabilitate the juvenile. But the factors for determining certification did not include brain development, such testimony was not as persuasive as the nature of the offense, on which the circuit court relied. Therefore, certification counsel did not perform below the professional standard and the juvenile suffered no prejudice, showing that certification counsel was not ineffective.
(Overview summary)
In the interest of: C.B., Appellant, v. Juvenile Officer, Respondent
Missouri Court of Appeals-Eastern District - ED112950

Personal injury

Exception to sovereign immunity pleaded
A petition in circuit court had to plead the ultimate facts that described a theory of recovery including, when the defendant was the state, an exception to sovereign immunity. Sovereign immunity protected the state from any action in circuit court except as waived. Waivers included public property in a dangerous condition. Dangerous conditions included physical defects in the design of a public road and inadequate signage that increased the danger. The petition meant that description by alleging at a road ended at a T intersection without warning. The circuit court erred in dismissing the petition so the Missouri Court of Appeals reversed the judgment and remanded the action.
(Overview summary)
Clint Puckett, et al. vs. Nodaway County, MO., et al.
Missouri Court of Appeals-Western District - WD87656

Criminal

No dismissal under UMDDL without speedy trial violation 
The Uniform Mandatory Disposition of Detainers Law required the state to either dispose of detainers within a specified time from the defendant’s motion or dismiss its charges against defendant, but only “if the court finds that the offender’s constitutional right to a speedy trial has been denied.” The denial of a speedy trial depended on several factors. Courts did not have to consider any relief if the delay was less than eight months. State-caused delays, to which the defense acquiesced by making no objection, weighed against the defendant. Prejudice was the most important factor and the movant showed only the usual anxiety of incarceration, which the movant was already experiencing from confinement on other charges. 
(Overview summary) 
State of Missouri, Appellant, v. Phillip A. Emily, Respondent. 
Missouri Court of Appeals-Eastern District – ED112931

Description as “serial killer” discussed 
No abuse of discretion occurred when the circuit court denied the defendant’s motions to replace a juror who was slightly acquainted with a state witness, might have briefly seen the defendant in restraints, and affirmed that the juror would remain unbiased. No plain error occurred when the circuit court chose not to intervene sua sponte in the state’s closing argument, suggesting that the defendant aspired to serial killing, because that argument suggested a motive supported by the record. “[U]se of the term ‘serial killer’ is error but not always grounds to reverse[.]” 
(Overview summary) 
State of Missouri, Respondent, vs. Ledra Craig, Appellant. 
Missouri Court of Appeals-Eastern District – ED112801

Self-defense instruction was necessary 
Circuit courts had to submit on request an instruction for any defense theory that substantial evidence supported. Self-defense did not include deadly force to repel a simple assault or battery, but whether the force was deadly, and whether the assault or battery was simple, were in dispute and therefore were jury questions. The Missouri Court of Appeals reversed the defendant’s conviction for attempted unlawful use of a weapon and remanded the action to the circuit court. 
(Overview summary) 
State of Missouri, Respondent, v. Danielle Lechocki, Appellant. 
Missouri Court of Appeals-Eastern District – ED112696

Identity theft conviction affirmed 
The defendant paid for a hotel room with fraudulent credit card information, so the defendant had no reasonable expectation of privacy, and thus no standing to challenge a search of the hotel room. The state had to inform the defendant of the charge and prove the elements of that charge, but it did not have to prove details appearing in the charging instrument, like the approximated date of the events alleged. The defendant admitted purchasing gift cards with stolen information, so the Missouri Court of Appeals affirmed the defendant’s conviction for class-A misdemeanor identity theft. 
STATE OF MISSOURI, Plaintiff-Respondent v. MICHAEL SCOTT MOUNT, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38642

No inference of guilt from request for lawyer 
When asked about “an incident that happened earlier” on the day of the defendant’s arrest, without reference to any charge, the defendant demanded a lawyer. Testimony recounting those events raised no inference of guilt, so the Missouri Court of Appeals declined plain error review. For a brief video showing the defendant with a firearm resembling the firearm used in the offense, the foundation was sufficient, and the defendant did not argue that any prejudice resulted from its admission. Remanded for an order nunc pro tunc conforming the written sentence to the sentence spoken in court.
STATE OF MISSOURI, Plaintiff-Respondent v. DEPARIS D. TOWNSEND, Defendant-Appellant 
Missouri Court of Appeals-Southern District – SD38581

No expungement for ordinance convictions 
Records of a misdemeanor marijuana offenses were subject to expungement. The petitioner sought expungement of a conviction for violating a municipal ordinance. That conviction was a civil infraction, not a misdemeanor or other marijuana conviction, so it was not subject to expungement. 
(Overview summary) 
K.D.W. vs. Missouri State Highway Patrol Records Repository, et al. 
Missouri Court of Appeals-Western District - WD86993

No review for prosecutorial misconduct 
The state had to produce on request the identity of witnesses and their statements. Remedies for non-compliance were within the circuit court’s discretion and were not limited to mistrial. Disclosure also did not include the prosecutor’s work product. No plain error occurred when the circuit court did not order production of notes that the prosecutor made for her own use. Appellate review examined circuit court conduct, which did not include the prosecutor’s conduct, so a claim of prosecutorial misconduct was not cognizable on appeal. The defendant preserved a challenge to the circuit court’s rulings on the prosecutor’s attorney work product but not as to the notes. 
(Overview summary) 
State of Missouri vs. John A. Frazier 
Missouri Court of Appeals-Western District - WD86572

Evidence

Hearsay exception for forfeiture-by-wrongdoing applied 
The hearsay rule excluded out-of-court statements offered for the truth of the matter stated. An exception allowed hearsay into the record on a foundation that included the declarant’s absence when the defendant “caused or substantially contributed to cause the unavailability of the” declarant. That described the defendant’s statements to the victim, persuading the victim not to appear at trial. The circuit court did not abuse its discretion in allowing the hearsay statements of the victim into evidence. Hearsay statements were also subject to objection under the Confrontation Clause, but the defendant did not preserve that matter and the Missouri Court of Appeals declined plain error review. 
STATE OF MISSOURI, Respondent v. ORLANDO C. MOORE, SR., Appellant 
Missouri Court of Appeals-Southern District – SD38242

Post-conviction

No prejudice when other evidence showed guilt 
On a claim for ineffective assistance of counsel, the movant had to show that substandard practice resulted in prejudice. “As a matter of strategy, the decision not to call a witness is ‘virtually unchallengeable.’” Trial counsel’s choice of not calling a child witness for cumulative alibi testimony was not below professional standards and did not prejudice the movant. The playback of an audio recording accidentally included the victim’s scream, but an objection or curative instruction would only have highlighted the scream, so refraining from objecting was sound strategy. “[I]f you’re not going to get the mistrial, you’re not going to object.” Prejudice from trial counsel’s evidentiary choices was absent when ample other evidence supported a finding of guilty. 
(Overview summary) 
Christopher L. Russell, Appellant, vs. State of Missouri, Respondent. 
Missouri Court of Appeals-Eastern District – ED112942

Real estate

Specific performance granted 
Specific performance was an equitable remedy, the award of which did not require a jury trial, even for affirmative defenses at law. In the absence of specific findings of fact, appellate courts presumed that circuit courts resolved all factual disputes in favor of the result that the circuit court reached. The circuit court enforced a contract for the sale of land over allegations by the decedent seller’s personal representative as to the seller’s capacity to contract and the buyer’s undue influence. And the record supported the circuit court’s implicit findings. Given the conclusion of no undue influence, an analysis of evidence supporting a presumption of undue influence was unnecessary. The appellants challenging the weight of the evidence had to acknowledge the evidence supporting the judgment but the personal representative failed to do so. 
(Overview summary) 
Anthony E. Barron vs. Martha Parker, Individually and as Representative of the Estate of Catherine L. Brizendine (Deceased) 
Missouri Court of Appeals-Western District - WD87250

Administrative

Argument was both reasonable and unreasonable 
Police pension included benefits for disabilities exclusively caused by a service-connected accident. A service-connected accident was not the exclusive cause of the claimant’s disability, the pension’s governing agency concluded. But the evidence cited in support related to disability, not exclusivity, and disability was uncontested. The agency acted unreasonably in denying benefits, so the Missouri Court of Appeals remanded the action to the agency to rule on exclusivity. But the agency’s position was reasonable, because the matter of exclusivity had been untested, so the Missouri Court of Appeals denied claimant’s motion for litigation expenses. 
(Overview summary)
Alana Hauck, Respondent, vs. The Police Retirement System of St. Louis, et al., Appellants. 
Missouri Court of Appeals-Eastern District – ED113098

Criminal

No marijuana offense, no expungement 
Expungement of criminal records was possible for marijuana offenses, meaning “only offenses that involve [p]urchasing, possessing, consuming, using, ingesting, inhaling, processing, transporting, delivering without consideration, or distributing without consideration three ounces or less of dried, unprocessed marijuana, or its equivalent[.]” That did not include class B felony distribution of a controlled substance by selling more than five grams of marijuana, which was the petitioner’s offense. That offense was not a marijuana offense, so expungement was not possible. The circuit court denied the petition and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
M.F.G.B. vs. Missouri State Highway Patrol 
Missouri Court of Appeals-Western District – WD87548

Employment

Action under Law Enforcement Officers’ Bill of Rights was filed too late 
The Law Enforcement Officers’ Bill of Rights afforded specific process to law enforcement employees, provided remedies for deprivation of that process, and set a deadline for filing claims for such deprivation. That deadline began when the deprivation was ascertainable, not when the employee received a negative result from the deprivation. The circuit court dismissed the claimant’s action as time-barred and the Missouri Court of Appeals affirmed that judgment. 
(Overview summary)
Colin Rumpsa, Appellant, vs. Jefferson County Sheriff's Department, et al., Respondents. 
Missouri Court of Appeals-Eastern District – ED113002

Real estate

Pleadings and judgment adequate for easement 
A petition’s allegations, not the name ascribed or the relief requested, determined the cause of action pleaded. In an action for an implied easement, defendants did not show that anything required a recitation of “reasonable necessity.” Reasonable necessity consisted of obstructive terrain for which a reconfiguration would be prohibitive. The judgment adequately designated the location of the easement both within the judgment’s language and by exhibits incorporated into the judgment. The Missouri Court of Appeals affirmed the judgment as amended to clarify the nature of the easement. 
THOMAS BENZEN, et al., Respondents vs. JEFFREY B. WHEELER, et al., Appellants 
Missouri Court of Appeals-Southern District - SD38761

Civil

Class certification reversed 
Petitions under the Merchandising Practices Act did not have any allege contract between the plaintiffs and the defendants. In class actions, a circuit court’s certification of the class was subject to review for abuse of discretion. The circuit court abused its discretion by sua sponte certifying the class to include persons who prevailed on the merits of the action. The Missouri Court of Appeals reversed the order certifying the class for the circuit court to address the parties’ arguments, eliminate the incorrect language, and include only claims timely filed. 
(Overview summary) 
Temujin Kensu, individually and on behalf of all others similarly situated, Respondents, vs. Keefe Commissary Network, L.L.C., d/b/a Access Corrections, Appellant. 
Missouri Court of Appeals-Eastern District - ED113320

Criminal

Defense of others instruction not required 
To support the submission of an instruction on defense of others, a defendant had to raise the issue and present substantial supporting evidence, while the evidence showed that the defendant displayed no regard for the safety of another. And the jury did not even find for the defendant on self-defense, so the omission of an instruction on defense of others was not outcome-determinative. Plain error occurred when the sentence as written deviated from the sentence as announced in open court, so the Missouri Court of Appeals affirmed the convictions and remanded the action to the circuit court for a correction nunc pro tunc. 
(Overview summary) 
State of Missouri vs. Terrance Andre Johnson, Jr. 
Missouri Court of Appeals-Western District - WD87138

No plain error in denial of severance 
Joint trials could benefit defendants by assessing relative culpability and could avoid inconsistent verdicts. “The purpose of severance is to protect defendants in joint trials from being convicted on evidence that would be inadmissible against them in a separate trial[,]” so severance was necessary to prevent “spillover” of evidence from a co-defendant to a defendant. The instructions and verdicts showed that no such spillover occurred. The Missouri Court of Appeals affirmed the convictions. 
(Overview summary) 
State of Missouri vs. Maggie P Ybarra 
Missouri Court of Appeals-Western District – WD86611

Inconsistent verdicts and death of circuit judge discussed 
When verdicts are inconsistent, defendants must raise that issue in circuit court or waive appellate review. But only invited error waived the issue of inconsistent verdicts for an extraordinary remedy. The remedy for inconsistent verdicts in circuit court was to reject the verdicts and require further deliberation. But the circuit court ordered a new trial, for which the circuit court’s authority had lapsed. A rule governed new trials when circuit judges died after verdict and before judgment. So, the Missouri Court of Appeals made permanent its preliminary writs of prohibition, barring any further proceedings until the successor applied that rule. Double jeopardy would not occur as to those charges on which the jury rendered inconsistent verdicts nor those on which defendant sought a new trial. 
STATE OF MISSOURI EX REL. MELVIN ANDERSON, Relator v. HONORABLE MARK PREYER, Respondent and STATE OF MISSOURI EX REL. ATTORNEY GENERAL ANDREW BAILEY, Relator v. HONORABLE MARK PREYER, Respondent 
Missouri Court of Appeals-Southern District – SD38672 and SD38866

Employment

Defendant was exempt from human rights act 
On a motion for summary judgment, a party without the burden of proof could prevail by establishing facts, beyond a genuine dispute, that negated an element of its adversary’s claim. The Human Rights Act barred gender-based discrimination in employment but excluded tax-exempt bona fide private membership clubs. The defendant’s motion established that the defendant was a bona fide private membership club with evidence of “the selectivity of its membership, its membership control over its operations, its history, and its purposes.” The plaintiff’s evidence, that the defendant also hosted events open and advertised to the public, did not raise a genuine dispute as to that fact. The circuit court granted the defendant’s motion for summary judgment and the Missouri Court of Appeals affirmed that ruling. 
(Overview summary) 
Rayne Littlefield, Appellant, vs. Norman Rigdon Post 5896, Veterans of Foreign Wars of The United States, Inc., Respondent. 
Missouri Court of Appeals-Eastern District – ED113095

Family

Contempt order not final 
Statutes alone determine whether a party had any right to, and whether an appellate court had authority to hear, an appeal. Appeals were generally possible only from final judgments, which did not describe orders of contempt until enforced. Enforcement of the appellant’s contempt order was by fine, on which the respondent had not attempted to execute, so the order was not subject to appeal. A ruling could also be subject to appeal if the matter ruled on was discrete from other pending matters and a circuit judge certified that there was no just reason for delay. A later order met none of those requirements. The Missouri Court of Appeals dismissed the appeal. 
(Overview summary) 
Donna J. Scalise, Respondent, vs. William J. Scalise, Appellant. 
Missouri Court of Appeals-Eastern District - ED112945

Real estate

Condo developer’s rights to build expired 
Arguments that did not cite supporting authority were deemed abandoned. The appellant’s argument cited authority for estoppel, a theory not mentioned in the appellant’s point, so the Missouri Court of Appeals deemed the point abandoned. The appellant’s condominium declarations gave appellant 10 years to create any buildings. Creation meant substantial completion, which never happened. The circuit court issued a declaratory judgment for respondent owners’ association and the Missouri Court of Appeals affirmed that judgment. 
CORPORATE VILLAGE OWNERS ASSOCIATION, INC., Plaintiff-Respondent v. CORPORATE VILLAGE, LLC, Defendant-Appellant and SOUTHERN BANK, Intervenor 
Missouri Court of Appeals-Southern District – SD38649