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Trial De Novo Explained
Appeal from associate division to circuit court is de novo, so the case is tried anew with no deference to findings of fact or conclusions of law from the previous action. Defendant properly joined third party in circuit court action even though appellant plaintiff did not name third party in associate division. Appeal from circuit court to Court of Appeals is on the record, with deference to findings of fact, but not to conclusions of law, from the previous action.
Larry Declue, Appellant, vs. Tara M. McCann d/b/a Disaster Recovery Specialists, LLC, and William Horn, Respondents.
Missouri Court of Appeals, Eastern District – ED101450
Legislative Act Does Not Pre-Empt Initiative Act
Missouri constitution provides two ways to make statues: legislative bill and initiative petition. Legislation may address same subject matter as pending initiative, even while initiative is pending. But an earlier legislation cannot trump a later initiative petition, even if the earlier legislation provides “notwithstanding any law to the contrary” because later initiative to the contrary must have effect. Earlier legislation’s exception to renewable energy portfolio requirement conflicts irreconcilably with later initiative’s provision that has no exception. Decision of the Public Service Commission applying the legislation’s exception is subject to judicial review for whether it is lawful, meaning authorized by statute, and reasonable, meaning based in evidence.
Earth Island Institute d/b/a Renew Missouri, Appellant, Missouri Coalition For The Environment, et al., Complainants vs. Union Electric Company d/b/a Ameren Missouri, Respondent, and Public Service Commission of the State of Missouri, Respondent.
Missouri Supreme Court – SC93944
Circuit Court Has Jurisdiction Over Same-Sex Marriage
Rule allows dismissal of action over which circuit court has no jurisdiction even before answer is filed. Jurisdiction of circuit court is plenary even if its decision can only be denial of relief sought. Provision defining marriage as the union of opposite sexes does not limit jurisdiction.
In Re the Marriage of: M.S., Appellant vs. D.S., Respondent.
Missouri Supreme Court – SC94101
No Prejudice from Voir Dire Restriction
Circuit court has wide latitude to control voir dire of venire. Circuit court barred questioning as to venire persons’ similarities of opinion. Appellant showed no prejudice from that restriction because he showed no bar to any information he sought.
STATE OF MISSOURI, Plaintiff-Respondent, vs. JARROD P. SIROIS, Defendant-Appellant.
Missouri Court of Appeals, Southern District – SD33264
Order after Nolle Pros Is Void
Nolle prosequi is dismissal without prejudice and puts an end to the criminal matter and, thus, circuit court’s jurisdiction over it. Orders after jurisdiction ends are void. Therefore, circuit court had no authority to dismiss action with prejudice after nolle prosequi.
STATE OF MISSOURI, Plaintiff-Appellant, vs. SKYLER DEWAYNE DOZLER, Defendant-Respondent.
Missouri Court of Appeals, Southern District – SD33333
Courtesies Did Not Show Favoritism
Failure to file pre-trial motion to suppress, object to identifications, and seek plain error review preserves nothing. Sufficient identification evidence and inferences from conduct showed that appellant knowingly used a dangerous instrument-the car he was driving-to cause damage and attempt to cause physical injury, that damage was over $750, and that appellant knew that his license was revoked. Appellant did not show that destroyed evidence of 911 call reporting his crimes might have helped his case, because the same witness testified by deposition, and that evidence was destroyed in bad faith. Admitted 911 recordings constituted present sense impressions admissible as exceptions to the hearsay rule, and were not testimonial in nature because they reported an ongoing emergency. Evidence from earlier Kansas action was admissible because it related to the same events and appellant had the opportunity, and motivation, to cross-examine deponent. Circuit court’s good luck wish to witness did not constitute bolstering, it was merely an expression of courtesy of the sort shown to all witnesses, and no objection preserved the issue. Claim that instruction should have included factors related to witness credibility does not support plain error review. Appellant fails to make threshold showing of plain error in circuit court’s failure to instruct on lesser included offense and mental states, for which appellant did not ask. Circuit court’s inquiry as to plea bargaining did not show that appellant received a greater sentence for going to trial.
State of Missouri vs. Bradley Ise(Overview Summary)
Missouri Court of Appeals, Western District – WD76497
Knowledge of Age Shown
Elements of sexual misconduct involving a child include certain acts with knowledge that victim’s age is less than 15 years old. State showed knowledge with evidence that appellant committed acts, acquired information that victim’s age is less than 15 years old, and continued those acts.
State of Missouri, Respondent, v. Timothy Howell, Appellant.
Missouri Court of Appeals, Eastern District – ED100924
Pre-Miranda Field Sobriety Tests Okay
Reasonable suspicion supports a detention for limited purpose of investigating suspected criminal activity. That investigation includes asking how much appellant had to drink and conducting field sobriety tests. Appellant was not in custody while sitting in police car with one officer and door open on public road for eight minutes. No Miranda warning was required so evidence of refusal, made before Miranda warning was given, was admissible.
State of Missouri, Respondent, v. James E. Steele, Jr., Appellant.
Missouri Court of Appeals, Eastern District – ED100723
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 to the verdict does not support a reversal.
STATE OF MISSOURI, Respondent, vs. HEATHER DAWN BENNETT, Appellant.
Missouri Court of Appeals, Southern District – SD32900
Expert Testimony Required for Cell Phone Data
Evidence supported a finding that appellant participated in crime after deliberation, evidence to the contrary notwithstanding. Witness is subject to cross-examination on any topic to which witness testified so, after defendant testified on direct as to why he carried a weapon, circuit court did not err in allowing cross-examination on that subject. Foundation for evidence of location based on cell tower data must include expert testimony, and circuit court erred in admitting such evidence on lay testimony only, but failure to object to foundation waives the issue, and admitting cumulative evidence is not plain error.
State of Missouri, Respondent, v. Michael J. Ford, Appellant.
Missouri Court of Appeals, Eastern District – ED100473
Inciting Violence Supported Seizure and Subsequent Search
Ordinance barred statements intended to incite immediate violence, which appellant did by “shouting loudly [in] vulgar and persistent [tones] toward the officers in a threatening manner [,]”so officers had probable cause to arrest appellant. To search appellant, including “a personal effect immediately associated with [appellant’s] person” incident to a lawful arrest, requires no warrant. Separation of appellant from personal effect for later search does not alter that result.
State of Missouri, Respondent, vs. Derrick L. Carrawell, Appellant.
Missouri Court of Appeals, Eastern District – ED100471
Legal Fees Not Part of Maintenance
Statute provides attorney fees as an award separate from maintenance, so an increase in legal bills, is not among the substantial and continuing change in circumstances that support a modification of maintenance, especially when the fees are for litigating the motion to modify. Erroneous calculation of living expenses to include attorney fees requires remand to re-determine motion to modify.
Ellen R. Greenberg n/k/a Klamon, Respondent, vs. Barry J. Greenberg, Appellant.
Missouri Court of Appeals, Eastern District – ED99952
Motion Must Allege Prejudicial Error
“To prevail on a claim of ineffective assistance of appellate counsel, a movant must establish that appellate counsel failed to raise a claim of error that was so” “serious so as to create a reasonable probability that, if the issue had been raised on direct appeal, it would have required reversal” and so “obvious that a competent and effective attorney would have recognized and appealed the issue [.]” As to claimed error in ruling on a peremptory strike, ruling is not prejudicial unless it results in empanelling another qualified juror. Movant did not allege that replacement juror was unqualified, so movant’s allegations would not require relief even if shown true, and no hearing was necessary before denying motion.
Frederick Barnes, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District – ED101127
Evidence Supports Award
Sufficient competent and substantial evidence that claimant was too injured to do manual labor, but skilled enough to do nothing more, showed that claimant was unable to compete in the labor market, which defines permanent and total disability. Ability to find work without competition does not alter that result. “Even if the evidence lends itself to differing factual inferences, we are obligated to defer to the Commission’s findings unless those findings are unsupported by competent and substantial evidence.” Court of Appeals does not hear an appeal from ALJ’s award unless first appealed to Labor and Industrial Relations Commission.
Rusty Archer vs. City of Cameron and Midwest Public Risk of Missouri; Treasurer of the State of Missouri-Custodian of the Second Injury Fund
Missouri Court of Appeals, Western District – WD77320
Lost Days Are an Element of Temporary Award
A challenge based on the overwhelming weight of the evidence considers evidence contrary to the award but only subject to credibility determinations-express and implied-and does not omit examination of evidence in favor of award. Appellants do not prevail on such a challenge because claimant’s testimony supports findings that claimant suffered a work-related injury and gave employer actual notice, so employer suffered no prejudice from lack of written notice and had the chance to clarify treatment actually needed. Award of temporary total disability requires evidence of missed work.
ELEAZAR GONZALES, Claimant-Respondent, vs. BUTTERBALL, L.L.C., Employer-Appellant, and ACE AMERICAN INSURANCE COMPANY, Insurer-Appellant.
Missouri Court of Appeals, Southern District – SD33269