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What’s new in Missouri Law for the week

On Behalf of | Apr 17, 2015 | Uncategorized |


Attorney Fees Awarded in World Series Ticket Affair
Sunshine law allows, but does not require, agency to close records, and no law compels closure of records. No promise of secrecy, and no practice or custom, can trump Sunshine Law. Failure to disclose records, and sham consent judgment to close records ordered to be disclosed, supports an award of $100,000 in attorney fees against agency for knowing violation.
John Chasnoff, Plaintiff/Respondent, vs. Col. Joseph Mokwa, et al., Defendants/Appellants, Wendell Ishmon, et al., Plaintiffs/Appellants, vs. St. Louis Board of Police Commissioners, et al., Defendants, and John Chasnoff, Intervenor Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101748


Sanction Affirmed
Statute requires circuit court to provide assistance with special needs as requested, but appellant made no request and record shows that appellant participated in trial, so circuit court did not err in provided assistance. Circuit court’s express finding that appellant proved no damages supports defense verdict and denial of nominal damages. Appellant offered no evidence against respondent but named respondent in appeal, so Court of Appeals grants motion for sanctions and awards respondent $1,500 for frivolous appeal.
JOHN AMPLEMAN, Plaintiff-Appellant, vs. DISH NETWORK SERVICE, LLC, and MILLENNIUM HOME SECURITY, INC., Defendants-Respondents.
Missouri Court of Appeals, Southern District – SD33390

Make Sure Hearing Is Transcribed
Unless statutes mandate that circuit court hold hearing on the record, appellant must ensure that a transcript is made to support appeal. Challenge to ruling based on sufficiency of the evidence requires a record showing the evidence offered, including a transcript, without which Court of Appeals cannot conduct review and must dismiss.
Deonda L. Poke, Petitioner, vs. Albert Mathis, Respondent, and State of Missouri, Department of Social Services, Family Support Division, Third-Party Respondent/Appellant.    (Overview Summary)
Missouri Court of Appeals, Eastern District – ED101902


Findings on Ownership Okay
To combine “an against-the-weight-of-the-evidence challenge, and a misapplication-of-law challenge” in one point is to make the point multifarious, and Court of Appeals may review it but need not. Evidence that appellant shared no losses in limited liability company shows that he was not a partner in that limited liability company. Replevin addresses only the right to immediate possession of chattel, though ownership may be relevant to that determination. Evidence that appellant “had complete control over the property in dispute and any income derived from that property” supported an award of damages for damaged property and lost income. Appellant had no standing to challenge apportionment of damages among individual and limited liability company of which circuit court, implicitly, found that appellant had no ownership.
Rocking H. Trucking, LLC and John Payne Harrison, IV vs. H.B.I.C., LLC Michelle Anderson and David Fenton, D.V.M.
(Overview Summary)
Missouri Court of Appeals, Western District – WD77733


Federal Registration Requires Missouri Registration
Missouri Sex Offender Registration Act provides that certain guilty pleas are grounds for registration as a sex offender on the Missouri register. Missouri constitution bars retrospective application of laws. Therefore, a guilty plea that occurred before effective date of Missouri Sex Offender Registration Act is not grounds for registration on the Missouri register. But the federal Sex Offender Registration and Notification Act provides that a requirement to register as a sex offender on the federal register is grounds for registration as a sex offender on the Missouri register. Federal statute is not subject to Missouri constitution, and its obligation as to Missouri registry continues even after the obligation as to the federal registry has expired.
MARK J. HORTON, Petitioner-Appellant, vs. STATE OF MISSOURI, Respondent-Respondent.
Missouri Court of Appeals, Southern District – SD33329

Good Faith Supports Admission of Evidence
Circuit court did not plainly err in admitting evidence discovered in the course of officers’ objectively reasonable reliance on a warrant.
State of Missouri, Respondent, vs. Darian Halliday, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED100813

Tampering Conviction Affirmed
Defendant possessed a screwdriver and wore white gloves to wipe away fingerprints at crime scene, where thieves broke into cars by using screwdrivers, and fled from police. “While each fact, taken separately, may seem innocuous, a conviction may rest upon accumulated, interdependent facts.” Jury verdict on six charges for a total of less than seven hours was not coerced despite repeated announcements of deadlock at brief intervals.
State of Missouri, Plaintiff/Respondent, v. Reno Whitt, Jr., Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101663


Jury Can Value Stolen Items
Items were the subject of various methods for proving value including owner’s opinion and purchase price. Jurors’ “common sense and common experience” enable them to conclude that objects of theft, including brand new computer and Apple electronic devices were above $500 in value.
State of Missouri, Respondent, v. Terrell G. Johnson, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED100662


Termination of Parental Rights Affirmed
Evidence showing a failure to rectify the grounds for custody included appellant’s inability to address child’s issues despite time to do so granted by circuit court. Low likelihood of adoption for child did not outweigh evidence that termination of parental rights was in child’s best interest.
IN THE INTEREST OF: M.B.N., a child under seventeen years of age, GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent, vs. E.R.N., Respondent-Appellant.
Missouri Court of Appeals, Southern District – SD33397


Defense Waived
When plaintiff sued insured, insurer brought a declaratory judgment action to determine the scope of its coverage. That action was a deemed refusal to defend the insured, supporting a finding that insurer waived control of the defense in the lawsuit, upon which statute allows an agreement between insured and plaintiff limiting recovery to specified assets, like insurance contract. To reform contract based on mutual mistake requires clear, cogent and convincing evidence. “[T]he instrument reflects what neither party intended [,]” but record shows that contract reflected a party’s understanding, so judgment reforming contract was against the weight of the evidence.
Brittany Hunter, Respondent, vs. Charles Moore, Sr., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101338

Personal injury

No Proximate Cause between High Speed Pursuit and Crash
Circuit court did not err in finding that strikes of jurors were race-neutral and not pretextual. In action against officer for negligence based on pursuit of driver, record showed no deviation from protocols governing pursuit, and evidence of deviation from protocols in unrelated incidents were collateral matters subject to exclusion. Evidence in action against officer for negligence, including dash cam and expert testimony, did not establish effect of pursuit on driver. Because the “effect of [officer’s] pursuit on the pursued vehicle” is mere “conjecture[e,]” two minute chase at 55 mph showed no proximate causation as a matter of law. Exclusion of evidence on damages did not prejudice plaintiff when judgment was for defendant.
Joe Frazier vs. City of Kansas City, Missouri, et al
(Overview Summary)
Missouri Court of Appeals, Western District – WD77294


Inquiry Required When Amended Motion Filed Late
Filing amended motion shows that motion has merit, so filing motion late raises a presumption of abandonment. Remanded for circuit court’s independent inquiry into whether motion counsel abandoned movant.
Charles K. Moore, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Supreme Court – SC94277

Hearing Required
Court of Appeals does not require movant to allege that motion was timely filed because movant cannot know that-movant can only allege the steps toward timely filing. Movant’s allegations entitled him to a “full evidentiary hearing.” A hearing not on the record does not meet that requirement because rule requires circuit court to conduct any evidentiary hearing on the record.
Anthony L. Carroll, Movant/Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101395

No Basis for Plea
Guilty plea must have a factual basis to protect defendant who does not understand that his conduct did not constitute the offense charged. State charged defendant with hindering prosecution by deception for the purpose of preventing the apprehension of another person, but recitations at group plea hearing did not support those allegations, even though plea counsel supplied some for defendant. Remanded to set aside plea and vacate conviction.
Floyd Snow, Jr., Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101804

Credibility Determination Controls
Circuit court was not required to believe testimony of movant over trial counsel on whether trial counsel consulted with movant about incriminating evidence. Whether appellate counsel should have challenged Batson ruling on direct appeal was a matter of strategy, and appellate counsel’s decision was sound, because the record supporting such a challenge was weak.
Donovan E. Tate, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101060

Real Estate

Adverse Possession Not Undone
“Maintenance of a disputed strip as a yard, including mowing the grass, planting trees and shrubbery, and occasionally using the area for recreational activities has been held to satisfy the requirement of actual possession.” Time starts running when an acquiesced boundary is established, and whether any dispute occurred is irrelevant to that time period. Adverse possession divests record owner of title and vests title in adverse possessor. Appellant’s evidence of their actions, which occurred “after all of the elements of adverse possession [had been met for ten years [,]” was irrelevant.
Darl D. Ferguson and Deloris M. Ferguson Trustees of the Darl D. Ferguson and Deloris M. Ferguson Amended Irrevocable Trust vs. Peggy Hoffman and Penny Hoffman
(Overview Summary)
Missouri Court of Appeals, Western District – WD77674

CAFO Liability Statute Constitutional
Record does not show that appellants have standing to challenge statute under separation of powers provisions. Classification of tortfeasors by land use is not a special law. Equal protection clause directs strict scrutiny at provisions governing a suspect class or fundamental right, but rural residents and landowners are not a suspect classification and land use is not subject to strict scrutiny. Statute passes rational basis test because it is not “completely irrational and unrelated to advancing a legitimate state interest” so it does not offend equal protection or due process. Open courts provision does not protect any cause of action from legislative adjustment, only the processing of a cause of action. Constitution bars taking of property for private use, but statute restricting liability of confined animal feeding operation for nuisance serves “the agricultural economy to create a public advantage or benefit,” which is a public use. Missouri constitution also bars taking of property for public use without just compensation, but statute provides damages for temporary nuisance and permanent nuisance is not at issue, so permanent nuisance is unripe for decision. Because statute restricts actions for nuisance, and appellants based claims of negligence and conspiracy on facts constituting a nuisance, circuit court did not err in entering judgment for respondents.
Linda Labrayere as Trustee of the Don E. Labrayere Trust, et al., Appellants vs. Bohr Farms, LLC, et al., Respondents.   (Overview Summary)
Missouri Supreme CourtSC93816

Foreclosure Sale Ends Record Owner’s Title
Appellants did not show reliance on respondent’s representations about potential forbearance on loan, and statements did not cause loss of property at foreclosure, failure to make payments did. Therefore, circuit court did not err in ruling against appellants on claims of negligent misrepresentation and under Missouri Merchandising Practices Act. Foreclosure sale stripped record owners of title, and vested title in buyer, which shows that title of buyer is superior to record owners. Error in drafting deed to buyer did not re-vest title in record owner. Actions to quiet title sought only remedy prayed for, so no abuse of process occurred. Statute and rule on damages for frivolous claim do not support a separate action or even a counterclaim, only a motion within a claim. In action to quiet title, every party has the burden of proving title superior to all other claims, so any motion for summary judgment need negate only one element of a party’s claim to prevail as to that party. Summary judgment does not violate the right to a jury trial.
DAVE R. WILLIAMS and CANDICE J. WILLIAMS, Plaintiffs-Appellants, vs. HSBC BANK USA, N.A., Defendant-Respondent.
Missouri Court of Appeals, Southern District – SD33364

No Claim for Easement by Necessity Stated
Statutes governing easement by necessity provide that private purpose supports a taking of private property, not public property, so no claim is possible against a state agency under those statutes. Change in statute governing easement by necessity did not change pleading requirements: if a public road passes through or along land, no easement across another person’s land is necessary. That the land along road is inaccessible does not change that requirement and is subject to strict application. Dismissal without prejudice is a final judgment subject to appeal if it practically ends the claim.
Avery Contracting, LLC, Appellant, vs. Richard Niehaus, Lisa J. Niehaus, Alicia Niehaus, Creekstone Homeowners Association, and Missouri Highways and Transportation Commission, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101592

Workers’ Compensation

Definition of Accident is Unambiguous
“[P]roper statutory construction starts with the words of the statute [and i]n most cases, it ends there, as well.” Statutory definition of a compensable accident includes a specific event, which similar events producing no injury do not negate; an unexpected traumatic event, which may include a routine part of employment; and an unusual strain, which resulting injury may show. Statutory definition of a risk or hazard related to employment includes on whether claimant faced the same hazard in everyday life, which includes the specific place where conditions caused accident. “[W]e consider whether [the claimant] was injured because he was at work as opposed to becoming injured merely while he was at work.”
Milton Young vs. Boone Electric Cooperative
(Overview Summary)
Missouri Court of Appeals, Western District – WD76567 and WD76568
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