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23 New Cases on Laws You Need to Know www.sandiferlaw.net for the week

Appellate

Burden of Proof and Deference Explained
Statute presumes that all property acquired during marriage is marital, but clear and convincing evidence that property was a gift to one spouse overcomes that presumption. Trier of fact may disbelieve any evidence offered, even "uncontradicted or uncontroverted" evidence, so party without the burden of proof may prevail without presenting evidence. Evidence that is not contested requires only legal conclusions, which are due no deference on appellate review, but to contest evidence requires no counter-evidence. Cross-examination and argument contest evidence, requiring circuit court to weigh evidence, resulting in a determination that is due deference on review. "[W]hen there are no written findings, the evidence 'shall be considered as having been found in accordance with the result reached;' in other words, in the light most favorable to the judgment." Circuit court did not expressly award a pre-marital gift to husband, but husband suffered no prejudice because circuit awarded pre-marital assets to each party. Circuit court did not abuse its discretion in disbelieving amount of debt attributable to husband, disbelieving evidence offered to show that motorcycle was a separate gift, and awarding dog to wife.
Lori L. England vs. Jesse W. England
(Overview Summary)
Missouri Court of Appeals, Western District - WD77209 and WD77230

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No Appeal from Sanctions
Statutes and rules provide that ruling is subject to appeal if it disposes of all issues as to all parties or if circuit court certifies ruling for appeal. But certification is available only for a ruling that addresses a distinct judicial unit, which is a claim, meaning a set of events under all theories. A motion for sanctions is not a claim on which a ruling is subject to appeal.
CAROLYN C. KLEIN, as member of R. Clinton Enterprises, LLC, a Missouri Limited Liability Company, on behalf of herself and all other similarly situated members, and as Co-Trustee of the Ray Clinton Irrevocable Trust, the Dorothy Clinton Irrevocable Trust, and the Clinton Family Trust, Plaintiff-Respondent, vs. STEVEN M. CLINTON, individually, and as a member of R. Clinton Enterprises, LLC, Defendant-Appellant, and R. Clinton Enterprises, LLC, Defendant, and DOROTHY CLINTON, Intervenor, and RAY BELL, the Ray A. Bell Irrevocable Trust, Joseph C. Bell, the Joseph C. Bell Irrevocable Trust, Marshall Clinton, the Marshall Ellison Clinton Irrevocable Trust, Matthew Clinton, the Matthew Steven Clinton Irrevocable Trust, the Christopher C. Clinton Irrevocable Trust, Charles Clinton, Sheila Williams, and Tiffany Clinton, Interested Parties.
Missouri Court of Appeals, Southern District - SD33288

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Attorneys

No Conflict Imputed to Government Office
Constitution requires criminal procedure to have an appearance of propriety. When public defender went to work for prosecutor, compliance with all duties of a former and current governmental employee under rules dispelled any appearance of impropriety to a reasonable person, so circuit court did not abuse its discretion in denying motion to disqualify prosecutor's office from representing State. Rules, imputing lawyer's conflict of interest to firm, do not apply to prosecutor's office. Remanded to correct nunc pro tunc written judgment's typographical error reciting conviction on two counts instead of one.
State of Missouri, Respondent, vs. Andrew Luke Lemasters, Appellant.
(Overview Summary)
Missouri Supreme Court - SC94295

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Civil

Entitlement to Relief not Shown
Defendant prevails on motion for summary judgment if defendant establishes elements of an affirmative defense. Rule restricts factual basis for summary judgment to motion and responses to the exclusion of other matter in the record. Motion identified attachment, but response need not address that identification, so failure to deny did constitute an admission of exhibit's identity.
METROPOLITAN NATIONAL BANK, Plaintiff/Appellant vs. COMMONWEALTH LAND TITLE INSURANCE COMPANY, Defendant/Respondent
Missouri Court of Appeals, Southern District - SD33161


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Long Arm Reaches eBay Sale
On motion to dismiss, use of matters outside the petition does not convert motion to summary determination. Tribunal may disbelieve testimony in affidavit. Measures of whether facts support exercise of jurisdiction over the person are provisions of long-arm statute and constitutional due process requirement of minimum contacts.
Issiah Andra, Appellant, vs. Left Gate Property Holding, Inc., Respondent.
(Overview Summary)
Missouri Supreme Court - SC93984

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Commercial

Sophisticated Party Defined
For an unsophisticated party, a limitation of liability must use the word negligence or equivalent language, but less explicit language may be binding for a sophisticated party. A sophisticated party is one that has experience in the transaction. The transaction was the limitation of liability in moving of office equipment. The experience required to show sophistication was the limitation of liability, not the moving of office equipment.
National Information Solutions, Inc., Appellant, vs. Cord Moving & Storage Company, Inc., Respondent(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101636

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Criminal

Conditional Release Distinguished from Parole
For all sentences of imprisonment, statutes provide prison time and conditional release time, while statutes commit parole mostly to Board's discretion. Under consecutive sentences, conditional release date arrives after all prison time for all sentences runs, and eligibility for parole occurs after minimum term for each sentence runs. Eligibility under an ordinary life sentence is the maximum time before eligibility for parole. Statutes bar parole for witness tampering, but that bar does not affect eligibility for parole for any other offense.
Kyle Short vs. Missouri Board of probation and Parole
(Overview Summary)
Missouri Court of Appeals, Western District - WD77964


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No Threat in World Series Tweets
Information that tracks an approved instruction or statute may still be subject to dismissal if conduct alleged is omitted. In determining motion to dismiss information, circuit court may consider matters outside the information, especially when State supplies that material in response to motion for dismissal. Information charged the making a terrorist threat but, as a matter of law, no threat existed in tweets that likened projected outcome of World Series to Boston marathon bombing. Though the communications were "were tasteless and offensive, the context of his tweets was such that a reasonable recipient would not interpret them as serious expressions of an intent to commit violence." Disposition of criminal action unrelated to issue of guilt is subject to appeal by State because jeopardy did not attach.
State of Missouri, Appellant, vs. Robert Metzinger, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101165


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Hammer Instruction Okay
Evidence that defendant carried a pistol in his waistband under his shirt supported a conviction for being a felon in possession of a firearm; conflicting evidence as to caliber of weapon went to witness credibility. Appellant did not show that circuit court's direction that jury continue deliberation was coercive in that jurors did not state that they could not come to a unanimous verdict, appellant did not show that circuit court knew the numerical split of jurors, jurors continued deliberations for 90 minutes more,
State of Missouri, Respondent, vs. Markus Steed, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101106

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Reference to Victim Safety was Isolated
Evidence that did not refer to appellant could not constitute evidence of uncharged conduct. Appellant did not show plain error in variance between indictment and instruction on method of molesting child because appellant denied any molestation, and edition of verdict director used. Judgment corrected as to clerical errors in classification of offense and consecutive running of sentence.
State of Missouri, Respondent, vs. Marcus Weaver, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED100299


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No Appeal on Time Served
Unless otherwise provided, the only ruling subject to appeal is a final judgment. In a criminal action, the only final judgment is the ruling that imposes sentence. Statutes commit determination of time served to Department of Corrections, so circuit court dismissed appellant's action for relief on that matter. That judgment is not subject to appeal.
State of Missouri, Respondent, vs. Kenneth D. Parker, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101566


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DWI

Investigatory Stop Okay
Abnormally slow driving and officer's knowledge that driver's license was revoked constituted specific and articulable facts that supported a reasonable suspicion of illegal activity: driving while revoked. Evidence obtained as a result of stop was not inadmissible.
STATE OF MISSOURI, Plaintiff-Respondent vs. RUBEN NUNEZ, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD33240

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Evidence

No Problem with Confrontation Clause
Statement of no objection waives all objections. Witness's testimony at preliminary hearing is admissible without violating confrontation clause when defense had the opportunity to cross-examine the witness, though witness later became a co-defendant. When evidence supports a finding that appellant incited crime, evidence contrary the verdict does not support a reversal.
STATE OF MISSOURI, Respondent, vs. HEATHER DAWN BENNETT, Appellant.
Missouri Court of Appeals, Southern District - SD32900

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Family

Findings Required
When parties disagree as to custody, statutes require circuit court to make findings of fact whether or not parties ask, but circuit court failed to do so. To preserve error as to omission of findings, appellant must have filed motion to amend, which appellant did. Remanded for findings of fact.
M.P.P., Respondent, v. R.R.E., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101446

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Local Government

Public Entity's Inverse Condemnation Action Transferred
Sewer district's petition stated a claim for trespass and negligence against city, including facts describing an exception to sovereign immunity, by pleading that city's conduct of a proprietary function caused damages. State has inherent power of eminent domain, but cities have that power only by legislative delegation, which reaches public property already dedicated to public purposes, but only for purposes not inconsistent with current use, and action for inverse condemnation is a remedy for breach of constitutional protections for private property. Whether claim for inverse condemnation is available to sewer district against city is an issue of general importance. Transferred to Missouri Supreme Court.
Metropolitan St. Louis Sewer District, Appellant, v. City of Bellefontaine Neighbors, et al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101713


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Hauler Damages Affirmed
Holding in appellate opinion bars motion to dismiss under law of the case on remand. To support an award of lost profits, evidence of past profits are required if damages sought are for disruption of profits or where lost profits are speculative or not probative of loss, but not for specific transactions including in an action for county's violation of statute. Evidence of projected receipts based on price in contract between plaintiffs and county was sufficient. Statute provides that expert witness may base his testimony on hearsay, and hearsay basis of data goes to witness credibility, not admissibility. Finder of fact may believe all, some, or none of evidence from either party. Rule allows affidavits to support after trial motion on matters not covered in record, but circuit court may disbelieve affidavit's content.
American Eagle Waste Industries, LLC, Meridian Waste Services, LLC, and Waste Management of Missouri, Inc., Respondents/Cross-Appellants, vs. St. Louis County, Missouri, Appellant/Cross-Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101373


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Personal Injury

Immunity of Municipality, Officials, Differ
Public duty doctrine shields from liability an official allegedly negligent in a duty to the entire public. Statutory "waivers of immunity applicable to defendant municipalities and political subdivisions do not abrogate the immunity protections afforded to public employees." Circuit court did not err in denying motion to file third amended petition by adding new theory three months before trial, which would have prejudiced defense.
SHANNA PAINTER and LANCE PAINTER, Plaintiffs-Appellants, vs. CITY OF HUMANSVILLE, MISSOURI, Defendant, and LEONARD WALBURN, RHONDA ROGERS, JOHN HENRY, and DARRELL R. LEAN, JR., Defendants-Respondents.
Missouri Court of Appeals, Southern District - SD33111

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Merchant's Privilege Statute Discussed
Statute codifying merchant's privilege allows merchant to employ reasonable physical force and detain suspected shoplifter, even after recovery of property, for law enforcement authorities. Privilege applies immunity against all liability-civil or criminal-upon compliance with statute's standards. Circuit court did not abuse its discretion in entering defendant's evidence related to plaintiff's medical history in addition to plaintiff's evidence. In action against merchant, instruction setting forth merchant's privilege as an affirmative defense, was not erroneously submitted. Appellant cannot challenge instruction as to language that appellant offered to circuit court. Argument first raised in substitute brief on transfer to Supreme Court is not preserved. Jurors' verdict, finding plaintiff not liable for compensatory damages to suspected shoplifter, negates any prejudice in exclusion of evidence related to punitive damages.
Deborah Barkley, Appellant, vs. McKeever Enterprises, Inc. d/b/a Price Chopper, Respondent.
(Overview Summary)
Missouri Supreme Court - SC94253


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Real Estate

Restrictive Covenants Discussed
Statutes provide that, when entities merge, surviving entity succeeds to rights of predecessor, so no ratification of actions or assignment of authority is required. Developer's rights under restrictive covenant are personal and do not generally transfer when property transfers. Facts surrounding appellants' purchase supported an inference that they knew of restrictive covenants. "One of the ways a developer may create a binding restrictive covenant is 'by developing and selling the land pursuant to a common plan or scheme of improvement ['and] such covenants may be enforced against an owner 'who has actual or constructive notice of the restrictions.'" By-laws and covenants are subject to the same canons of construction as contracts. Contract may be mutually rescinded by mutual agreement, shown through express statements or conduct inconsistent with contract, which abrogates contract so that assignee takes nothing. By-law definitions of plot and tract controlled; designate is not a technical term. By-laws authorized assessments including an assessment to retain attorney in defense of common property, including easements. Such an assessment did not constitute an amendment to by-laws. Whether improvements are subject to design committee review is moot when no one has attempted "to enforce the design committee provisions." Ruling to which appellants agreed, then appealed, constitutes invited error, which estops appeal. Circuit court is an expert on awarding attorney fees.
ROBERT J. HELLMANN, and DEBRA S. HELLMANN, Petitioner-Appellants/Respondents, vs. RANDY SPARKS, EXECUTIVE VACATION GET-A-WAYS, LLC, JAMES C. RESTELLI, KAREN A. RESTELLI, MITCH'S GREENTHUMB LANDSCAPING CORP., JEFFREY M. LOWE, KATHLEEN E. LOWE, JAMES RESTELLI, JEFFREY M. LOWE, and ROGER L. FULTON, AS PUTATIVE DIRECTORS OF THE GRAND POINT ISLAND HOMEOWNES ASSOCIATION, INC., UNKNOWN PERSONS OR ENTITIES THAT CLAIM AN INTEREST IN THE BOAT DOCK KNOWN AS THE "COMMUNITY DOCK" ATTACHED TO THE LOT KNOWN AS THE "PARK" IN GRAND POINTE ISLAND SUBDIVISION, A SUBDIVISION IN CAMDEN COUNTY, MISSOURI, GRAND POINT ISLAND HOMEOWNERS ASSOCIATION, INC., EXCLUSIVE LAKE PROPERTIES, LLC, BAYBERRY DEVELOPMENT CO. II, INC., ROGER L. FULTON, DEBRA A. FULTON, JEFFREY A. HOWELL, KIM M. HOWELL, Respondents-Respondents, HEALTH CARE RESOURCE, LLC, Respondent-Respondent/Cross-Appellant, and ROBERT A. BULL AND DEBRA BULL, Respondents-Respondents/Cross-Appellants.Missouri Court of Appeals, Southern District - SD32740, SD32742, SD32743 Consolidated


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No Waiver of Security Deposit Statute
Statutes governing residential tenants' security deposits "however denominated" are "'paternalistic in nature' such that they cannot be subject to waiver' even "by contractually crafting their own definition of 'ordinary wear and tear.'" Circuit court erred in granting summary judgment for defendant, and in denying certification of class action on that basis. On reversal, all other rulings become interlocutory again, and circuit court may re-determine its ruling on statute of limitations, so review of that ruling is premature.
MICHAEL YOUNKER, BRAD NECKERMANN, ADAM CHADEK, and AMANDA CHADEK, Plaintiffs-Appellants, vs. INVESTMENT REALTY, INC., MICHAEL WOESSNER, LINDA WOESSNER, CURTIS D. BAXTER, SARAH BAXTER, and WILLIAMSBURG APARTMENTS, INC., Defendants-Respondents.Missouri Court of Appeals, Southern District - SD33179


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Schools

Exclusion Requires Remand
In teacher termination procedure, statutes require subject of hearing to be at hearing. Hearing officer excluded teacher from hearing. "Appellant did not have the opportunity to observe the adverse witness's demeanor during her testimony. Furthermore, he did not have the ability to confer with his attorney during direct - and cross - examination, but rather was limited to one conversation during a break before cross-examination." Remanded for re-hearing.
Ronald Luellen, Appellant, vs. Special Administrative Board of the Transitional School District of the City of St. Louis, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101316

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Tax

No Sales Tax on Rental
Statutes impose sales tax on certain transactions, measured by fees paid, related to any "place of amusement or recreation," which includes a gym. Within gym, appellant leased space to lessee, who offered personal training services, for which lessee collected a fee from lessee's personal training service clients. Those personal training transactions are not taxable to appellant, because appellant did not offer them, and appellant's lease is not a taxable transaction. Director assessed sales tax against appellant, measured by rents that appellant received from lessee, which Administrative Hearing Commission reversed. Administrative Hearing Commission affirmed.
Tatson, LLC, d/b/a Powerhouse Gym of Joplin, Respondent vs. Director of Revenue, Appellant.
(Overview Summary)
Missouri Supreme Court - SC94260


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Lease was Exempt from Use Tax
Taxpayer has the burden of proving an exemption from use tax. Use tax applies to use of items in State if purchased out of State. Purchase includes lease. Exemption from tax for items purchased for resale includes items purchased for lease of full use, even if title does not transfer. Error in excluding evidence in support of a proposition is harmless when adverse party admits proposition during oral argument.
Five Delta Alpha, LLC, Appellant, vs. Director of Revenue, Respondent.
(Overview Summary)
Missouri Supreme Court - SC94224

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