Affordable Legal Services of Thomas Sandifer
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Affordable Legal Services of Thomas Sandifer
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New cases decided in the State of Missouri for the week

On Behalf of | Jan 31, 2015 | Uncategorized |


Affordable Legal Services of Thomas Sandifer

225 S. Meramec, Suite 925
Clayton, MO. 63105
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No Appeal on Record Without Transcript
Violation of rules related to statement of facts, points relied on, argument, and record on appeal make appellate review impossible. “In his argument, [appellant] argues that [respondent] ‘failed to provide any proof’ [but w]ithout a transcript, it is impossible to review such a claim.” Appeal dismissed.
Jacqueline Lancaster vs. Marc Lancaster
(Overview Summary)
Missouri Court of Appeals, Western District – WD77454
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Claim Stated, Dismissal Reversed
On a motion to dismiss a petition for failure to state a claim, whether the petition’s allegations are credible or persuasive is not at issue, only whether the allegations-assumed true-describe facts on which the law provides relief. Allegations that defendant took possession of item for repair adequately alleges a duty for claim of negligence, that plaintiff relied on defendant’s representations adequately alleges reliance for claim of fraudulent misrepresentation. Time bar is an affirmative defense, petition does not show on its face that claim is time-barred, and defendant did not offer any further proof. Circuit court erred in dismissing petition.
KEVIN PRENGER, Plaintiff/Appellant, v. THE BOAT STORE, INC., d/b/a KELLY’S PORT, and REGAL MARINE INDUSTRIES, INC., Defendants/Respondents.
Missouri Court of Appeals, Southern District – SD33365
Withdrawal Instruction Affirmed
In action against city for child’s injury at park, record of voir dire supported circuit court’s determination that a stray issue as to supervision of child arose. Cure for stray issue is a withdrawal instruction. Circuit court did not abuse its discretion in giving withdrawal instruction.
CHARLES A. MYERS, a minor, by and through his mother and next friend SUSAN SCHULZ, Plaintiff-Respondent, v. CITY OF WEST PLAINS, MISSOURI, Defendant-Appellant.
Missouri Court of Appeals, Southern District – SD33204
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Circumstantial Evidence Supports Verdict
Jury’s finding on cause of death had support in expert’s opinion on what “probably” caused it; expert’s opinion need not be absolute as long as physical evidence corroborates it. Cause of death raises an inference of knowing conduct and deliberation. On charge of first degree child abuse, child’s conflicting explanations of injuries and removal from school during school inquiry raised an inference sufficient to support a finding on guilt. Jury found appellant guilty on an instruction that charged offenses on multiple dates, but elements of offense included repeated acts, so appellant showed no plain error. Circumstantial evidence supported a finding of guilty on charge of arson.
State of Missouri vs. Tony Ray King
(Overview Summary)
Missouri Court of Appeals, Western District – WD76667
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No Appeal from Dismissal at Preliminary Hearing
Statute predicates appeal in criminal cases on a final judgment. A final judgment does not include a dismissal without prejudice and does not include a dismissal during preliminary hearing. Therefore, a dismissal without prejudice at preliminary hearing is not subject to appeal. State may refile and rule requires judge who dismissed to recuse.
STATE OF MISSOURI, Plaintiff-Appellant, vs. TATUM CLARK MCMILLIAN, Defendant-Respondent.
Missouri Court of Appeals, Southern District – SD33100
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Meth Lab Conviction Reversed
Appellant’s presence at meth lab, and flight from officers while intoxicated on unknown substance, may have shown appellant’s knowledge that meth lab existed but did not show beyond reasonable doubt that appellant possessed lab on premises that appellant did not control.
STATE OF MISSOURI, Respondent, vs. KENNY DEAN KOCH, Appellant.
Missouri Court of Appeals, Southern District – SD33054
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Breath Test Excluded
Missouri constitution bars passage of laws retrospective in effect, meaning impairing an existing substantive right by applying to facts existing before passage of law. Procedural laws are presumed to operate retrospectively. Later version of regulation, in effect at time of trial, provided that regulation applicable to events was regulation in effect when events occurred. “The difference between the two versions of [the regulation] is a single word: ‘and’ versus ‘or.’ . . . The word ‘and’ is a conjunction used to join words or groups of words and means ‘added to’ or ‘plus.’ . . . .The word ‘or’ also is a conjunction; however, ‘or’ is used to indicate an alternative, the equivalent or substitutive character of two words or phrases, or approximation or uncertainty.” Applicable regulation unambiguously required a test using three standard simulator solutions by using the word ‘and’ but evidence showed only one solution, so circuit court did not err in excluding test.
Kristin Nicole Stiers, Respondent, vs. Director of Revenue, State of Missouri, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101407
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Breath Test Admitted
“The same rules of construction [for statutes] apply to regulations.” As to calibration of breath test, one regulation addresses only maintenance records while related regulation included a form unambiguously requiring three tests using one standard simulator. Circuit court erred in excluding test based on use of less than three solutions.
JIMMY KENT RIGGINS, Petitioner-Respondent, v. DIRECTOR OF REVENUE, Respondent-Appellant.
Missouri Court of Appeals, Southern District – SD33368
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Abatement Unauthorized
Statute requires clear and convincing evidence to rebut the presumption that property acquired during marriage is marital property, which record shows, including evidence that respondent acquired the property by separate gift and quitclaimed it to appellant and respondent only under duress. Statute requires findings on domestic violence but rule requires that circuit court’s failure to make statutorily required findings must be the subject of a motion to amend. Record includes evidence supporting a conclusion that appellant could earn enough to require no maintenance. Statute allows abatement of child support when custodial parent violates a judgment of dissolution or legal separation, or a modification of those judgments, but not for violation of an interim custody order.
George C. Cule, Respondent, vs. Odeta C. Cule, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED100694
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Dismissal Not Subject to Appeal
Missouri courts presume against rulings sub silentio and, where they find one, give it no binding precedential authority. Rule provides that dismissal that is silent as to prejudice is without prejudice. Dismissal did not reach the merits of appellant’s claims, and appellant was free to re-file them, so dismissal does not constitute a final judgment subject to appeal.
Sherif Al-Hawarey, Respondent, vs. Cindy Al-Hawarey a/k/a Cindy Ortega, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101384
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Dispute Remains as to Coverage
On motion for summary judgment, movants established most of their claim for equitable garnishment against insurer except whether policies covered defendant in underlying action. Verified petition does not establish facts because a verified petition does not require first-hand knowledge as an affidavit does. Insurer’s offer of defense, with or without reservation of rights, did not establish, beyond any contrary inference, an implied or express waiver of the right to deny coverage. The more formalities required of insurer’s notice, the more material facts-absence of those formalities-movants must establish to prevail on summary judgment. Ruling on summary judgment on which circuit court certifies no just reason for delay is subject to appeal.
JOSEPH SMITH, Plaintiff-Respondent, vs. MARYLAND CASUALTY COMPANY, Defendant-Appellant, and ANDREW SHAYATOVICH, Defendant-Respondent.
Missouri Court of Appeals, Southern District – SD33341
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Local Government

Public Employees’ Collective Bargaining Ordinance Okay
Missouri constitution protects the right of collective bargaining for workers, including government workers, which inherently requires employer to meet and confer in good faith with bargaining unit. For government workers not subject to statutes, city may adopt ordinance governing collective bargaining, and ordinances are presumed valid. “[E]ach city has the ability to establish a procedural framework for collective bargaining with its excluded employees if necessary to effectuate its duty” and the only issue on judicial review of city’s ordinance is whether the city acted within its powers at law. Ordinance may define scope of bargaining unit to separate classes of personnel, and need not hold a hearing to make that determination. Court of Appeals need not decide the propriety of provisions related to: size majority required to certify representative, because record shows a vote achieving that the required size; duration of agreement and payment of employees, because those matters are subject to bargaining.
West Central Missouri Region Lodge #50 of The Fraternal Order of Police, et al vs. The city of Grandview, Missouri
(Overview Summary)
Missouri Court of Appeals, Western District – WD77250
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Miscellaneous Actions

Official Immunity Case Transferred
Plaintiff alleged that officer made material omissions and misstatements in his report, resulting in criminal action, and sought damages under federal statute and Missouri law. Both theories are subject to qualified immunity for official actions taken with probable cause. For federal statute, probable cause exists if an objectively reasonable basis for arrest exists absent false and reckless allegations, malice notwithstanding, albeit on a different charge than contemplated. Only the offense charged will do for probable cause under Missouri law, and malice taints a discretionary act. “That we should arrive at different conclusions on the two claims is not inherently inappropriate because the claims are separate and distinct and arise under separate laws [,but i]nclusion of ‘the offense charged’ in the definition of probable cause in Missouri jurisprudence is particularly troubling when analyzing a probable-cause statement submitted to support the issuance of a warrant because the affiant who completes the probable cause statement is not responsible for choosing the offense charged.” transferred to Missouri Supreme Court
Deanna Copeland, Plaintiff/Appellant, vs. Lucas Wicks, Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101012
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Personal Injury

Normal Negligence Instruction Okay
Owner of premises is not liable for negligence when owner has turned control of premises over to independent contractor, but remains liable if owner turned over control only of an instrumentality. Offer of proof, even in narrative form, must include “enough certainty to determine that the evidence is relevant, material, and probative.” Appellant cannot complaint about instruction that appellant offered and must object to preserve error. Definition of negligence applicable to facts was the normal definition, not the definition “used in cases involving drug manufacturers or in cases involving ‘the sophisticated nature of the engineering, dynamics, and production’ of items such as helicopter engines.” Motion for directed verdict is the necessary premise of a motion for judgment notwithstanding the verdict because the latter motion seeks a judgment in accord with the former motion and, for the same reason, the latter cannot exceed the former in scope. Motion for new trial is not subject to appeal.
Steven Key and Christine Key vs. Diamond International Trucks F/K/A KCR International Trucks
(Overview Summary)
Missouri Court of Appeals, Western District – WD77323
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Real Estate

Extinguishment Not Shown
Easement may be extinguished by abandonment or by adverse possession. For abandonment, the elements include an act decisively and conclusively proving the intention to abandon. Record showed no such act, only a lapse in use. Such lapse in the use of a property right does not work a loss of the property right. For adverse possession, the elements of which include hostile possession, meaning incompatible with all other claims. Record showed that respondent holders of dominant estate did not use easement at all, so respondents did not show hostile possession.
Bruce Tetrault, et al., Plaintiffs/Appellant, vs. Ronald Yankowski, et al., Defendants/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101254
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No New Burden in Covenants
In amending restrictive covenants, one set of property owners cannot add new burdens opposed by another set of property owners. But mere existence of committee to regulate new construction, especially under standards enforced by original developer, is not a new burden. Standards show that committee was not unreasonable. Appellant did not show why his ignorance of standards was relevant to judgment, so he did not state a claim based on the evidence. Because standards are enforceable, it does not matter whether appellant should have sought permission or rather than forgiveness.
Missouri Court of Appeals, Southern District – SD33312
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