Affordable Legal Services of Thomas Sandifer
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Cases for the week

On Behalf of | Feb 10, 2015 | Uncategorized |

Affordable Legal Services of Thomas Sandifer

225 S. Meramec, Suite 925Clayton, MO. 63105

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Claimant Did Not Prevail Against Agency
In action arising from agency decision, statutes allow circuit court to award attorney fees against agency and in favor of prevailing party if agency was a party to the underlying action, not merely the adjudicator, and took a position that was not substantially justified. Appellant sought review of agency action in which agency was merely the adjudicator, which cannot state a claim for attorney fees. Attorney fee statutes police the integrity of agency litigation, not the accuracy of agency decisions in which agency has no stake, and naming agency in petition for judicial review did not give agency a stake.
Meagan Garland, Appellant vs. Jeffrey Ruhl, Respondent, State of Missouri, Department of Social Services, Family Support Division, Respondent.
(Overview Summary)
Missouri Supreme Court – SC94230
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Appeal of Garnishment Ruling Discussed
At hearing on appellant’s motion for summary judgment, parties introduced evidence on theories outside motion for summary judgment, without any cross-motion from respondent. Therefore, judgment constitutes merely the denial of appellant’s motion, which is not subject to appeal, and does not constitute grant of any respondent’s motion, which would be subject to appeal. Even if judgment constituted a grant of motion, such grant is not inextricably intertwined with denial of respondent’s motion. Even if denial of appellant’s motion were inextricably intertwined with the grant of a motion by respondents, that grant has support in alternative theories. Only one unappealed supporting theory is necessary to affirm judgment. Judgment in rem is subject to appeal upon posting of bond provided by statute. Noncompliance with bond procedure waived by failure to object.
Boyd McGathey, et al vs. Matthew K. Davis Trust
(Overview Summary)
Missouri Court of Appeals, Western District – WD77437
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Instruction on Involuntary Manslaughter Was Due
A lesser include offense is nested in a greater offense when it is impossible to commit the greater without committing the lesser. Statutes include mental states of lower culpability in higher mental states. Because the only difference is what the jury finds, and jury may find facts differing from State’s allegations without defendant raising any challenge to greater offense, the circuit court must give the instruction on the lesser included offense when requested. Between second degree murder and voluntary manslaughter, and involuntary manslaughter instruction that circuit court rejected, the only difference was sudden passion. Circuit court erred in denying instruction.
State of Missouri vs. Christopher M. Sanders
(Overview Summary)
Missouri Court of Appeals, Western District – WD76452
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Death Penalty Affirmed
Affidavit in support of search warrant cited multiple mutually corroborating sources that more than compensated for lack of timeline in establishing probable cause. Federal statutes allow gathering of wireless telephone information on showing less than probable cause but, even if ping order gathered that information unlawfully, intervening events–appellant’s failure to pull over when officer activated lights and siren and resulting chase–independently supported a stop. Leading police on chase violated laws and supported a seizure without warrant. Evidence of 14 weapons found in car was relevant to mental state during flight and showed consciousness of guilt. If statements that victim made in application for order of protection are subject to confrontation clause, harassment of victim constitutes forfeiture of confrontation by wrongdoing, which also lifts bar against other hearsay statements. Circumstantial evidence supported appellant’s authorship of note found in car while fleeing. Statute sets forth factors supporting death penalty, including history of assaultive behavior and concurrent commission of another crime, which record shows. Proportionality shown. Death penalty affirmed.
State of Missouri, Respondent vs. David Russell Hosier, Appellant.
(Overview Summary)
Missouri Supreme Court – SC93855
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Right to Counsel, Not to Perjury
Constitution provides right to counsel in criminal action, and due process requires legal counsel in a civil action that may lead to imprisonment, but neither includes juvenile court’s inquiry of child’s mother. Statute and rule provide the right to counsel for any party to a juvenile action, on showing of eligibility, which denial of parentage negated. Even if mother showed eligibility for appointed counsel, mother’s remedies did not include perjuring testimony or suppression of her perjured testimony in prosecution for that offense. Right to remain silent is not a right to testify falsely. False testimony that child did not exist was material to juvenile court action even if no one believed it. Statute creates defense of retraction, but retraction must occur before falsity of testimony is discovered, and defendant must raise that defense at trial.
State of Missouri, Respondent vs. Brenda Churchill, Appellant.
(Overview Summary)
Missouri Supreme Court – SC94226
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Signature Raises Presumption of Identity
Showing a contract signed with the name of a party raises a presumption that the party signed the contract. When the presumed signatory party offered no evidence to rebut that presumption, circuit court erred in denying relief for failure to prove contract. Statute provides that order ruling on motion to compel arbitration is subject to interlocutory appeal without being denominated as a judgment. Notice of appeal ends circuit court jurisdiction over the matter appealed, so further ruling on that matter is null and not subject to appeal.
Missouri Court of Appeals, Southern District – SD32745 and SD33075
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No Coverage for Car Not Wrecked
Motor Vehicle Financial Responsibility Law reads minimum coverage into every automobile policy sold, but only for automobiles covered. Coverage must include car used by insured but not all damages caused by insured. Statutes require policy to cover any automobile that insured designates, and any automobile that insured drives but does not own, but not an automobile that insured owns and does not designate. Thus, neither of two policies for two respective cars need provide coverage for the other car, and each policy could exclude other car. “That is, one cannot simply buy a policy of insurance on one vehicle and then argue that the policy covers other vehicles that the insured also owns but chose not to insure.”
Adam Dutton, Appellant vs. American Family Mutual Insurance Company, Respondent.
(Overview Summary)
Missouri Supreme Court – SC94075
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Local Government

Restricted Zoning Hearing Requires Remand
Statutes governing amendment of zoning ordinance require hearing, of which public notice is required, showing that the hearing is a public hearing. Statutes also provide that zoning decision is subject to review in circuit court, which may affirm or reverse or modify decision, showing that the circuit court reviews decision de novo on record made before zoning agency. Petition for judicial review, claiming that public hearing was limited, especially as to barring comments on the only project that the ordinance would affect, stated a claim for invalidity of ordinance. Appellate court does not determine merits de novo, it reviews on the record.
Ruth Campbell, et al., Appellants vs. County Commission of Franklin County, Respondent, and Union Electric Company, d/b/a Ameren Missouri, Respondent.
(Overview Summary)
Missouri Supreme Court – SD94339
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Fraudulent Misrepresentation Discussed
Speaker’s ignorance of a statement’s truth or falsity is usually enough to support a claim for fraudulent misrepresentation. But fraudulent misrepresentation can exist only as to facts, and facts are either past or present, so if claim for fraudulent misrepresentation stands on a promise to act in the future, it requires proof of fraudulent intent when promise was made. “[A]n unkept promise does not constitute actionable fraud unless the promise is accompanied by the defendant’s present intent not to perform, which constitutes a misrepresentation of a present state of mind, itself an existent fact.” Defendant’s statement as alleged in petition, that “there had not been . . . any problems with storm water drainage or flooding” was a representation as to past facts. Defendant’s statements as submitted in instructions, that land “would not flood” and that defendant would remedy any flooding, were statements of future events. Therefore, two statements were subject to one verdict director related to future representations and requiring actual knowledge that representations were false.
Shawn Stevens, Appellant vs. Markirk Construction, Inc., and Kirk Jones, Respondents.
(Overview Summary)
Missouri Supreme Court – SC94074
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Waiver of Counsel Was Unequivocal
Movant’s waiver of counsel was unequivocal as shown by repeated and detailed discussions with circuit court, which later demand for stand-by counsel did not negate. At hearing on motion, uncontroverted evidence showed that an appeal based on movant’s waiver of counsel was certain to fail. Appellate counsel’s decision not to raise meritless theory did not show that appellate counsel was ineffective.
Shannon J. Rollins vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District – WD77074
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Trial Counsel Need Not Raise Meritless Theories
Even if double jeopardy were a claim for relief on a post-conviction motion, without being raised on direct review, evidence of separate incidents supported separate charges. Objections to witness’s testimony would not have been meritorious and, even if they were, circuit court would not have granted a mistrial.
Garvester Bracken, Movant/Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101059
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No Prejudice from Sleepy Juror Described
Even if movant showed that juror was sleeping, movant did not allege facts as to how it prejudiced him by affecting the verdict. Reference to record’s content was not a reference to movant’ right to silence, so trial counsel was not ineffective for failure to challenge it. Denial without hearing affirmed.
Daryl Davis, Movant/Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101319
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Standing to Seek Constructive Trust Discussed
On motion for summary judgment, non-movant need not make any showing unless movant has established facts that entitle movant to a favorable decision-non-movant need not raise a genuine dispute as to mere allegations. If decedent designated payable-on-death beneficiary or joint owner under undue influence, designation is void, and asset reverts to previous status, whether jointly held with a previously-named beneficiary or part of the estate. As to assets on which appellant was previous beneficiary or joint owner, appellant has standing to challenge transfer to new beneficiary or joint owner. Source of funds for assets is irrelevant to standing. On transfer to Supreme Court from Court of Appeals, Court of Appeals opinion becomes a nullity and parties address the rulings as on appeal from circuit court’s judgment. Supreme Court disregards unneeded and erroneous substitute brief and applies brief filed in Court of Appeals.
Eric Williams, Appellant vs. William L. Hubbard, Limited Administrator ad litem of the Estate of Betty Margaret Reynolds and Kenneth Nelson and Sandra K. Nelson, Husband and Wife, Respondents.
(Overview Summary)
Missouri Supreme Court – SC93853
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No Abuse of Discretion Shown In Attorney Fees Award
In action to enforce mediated settlement related to administration of trust, which included an award of attorney fees against appellant, circuit court made an additional award of attorney fees. Statute commits award of attorney fees in an action related to administration of trust to circuit court’s discretion, which circuit court abuses if judgment was “either arbitrarily arrived at or so unreasonable as to indicate indifference and lack of proper judicial consideration.” Appellant did not show any abuse of discretion.
PEPPERS CEMETERY FOUNDATION, Plaintiff-Appellant, and OPAL MASSEY, Plaintiff-Respondent, v. DANNY W. MCKINNEY, TRUSTEE of the Revocable Living Trust Agreement of Norma C. Bennett and Pearl L. Bennett; DANNY W. MCKINNEY, individually; NADINE M. MCKINNEY, and TRINITY EVANGELICAL LUTHERAN CHURCH OF LEBANON, MISSOURI, Defendants-Respondents.
Missouri Court of Appeals, Southern District – SD33320
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Water District Statutes Explained
“Inverse condemnation is the exclusive remedy when private property is damaged by a nuisance operated by an entity having the power of eminent domain.” Statutes authorize water district to make regulations governing its operations, and hold both owner and occupant of property served liable for payment, but do not provide that service must terminate at owner’s request if owner is not a customer. Regulation’s “immaterial” departure from language of statute does not deprive regulation of all “reasonable relationship to the legislative objective.” Property owner requires property occupants to have occupant’s name on water and sewer accounts. Therefore, regulations providing that property owner cannot unilaterally terminate water service to property occupant did not constitute a taking.
Dynasty Home, L.C., Appellant, vs. Public Water Supply District Number 3 of Franklin County, Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED100993
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