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What's new in Missouri Law for the week

ADR

Arbitrability Is for the Courts
"[P]arties may agree to arbitrate even 'gateway' questions of arbitrability, i.e., 'whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy [.]'" But "unless the parties clearly and unmistakably provide otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator." Of all related agreements, only one had an arbitration clause, and that clause did not describe the matter on which appellant demanded arbitration. Circuit court did not err in denying motion to compel arbitration.
50 Plus Pharmacy, et al vs. Choice Pharmacy Systems, LLC, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD77879

Appellate

Repeal Moots Appeal
Repeal and re-enactment of statute on which appellant based his constitutional challenge mooted that challenge.
Arthur L. LeBeau, Jr., et al., Appellants, vs. Commissioners of Franklin County, Missouri, Respondent.
(Overview Summary)
Missouri Supreme Court - SC94348


Judgment not Final
Judgment is subject to appeal if final or certified for appeal, but the latter must dispose of a judicial unit, meaning "at least one claim raised in the petition [.]" Under that standard, ruling that denied defendant insurer's motion for summary judgment and awarded uninsured plaintiff damages was not subject to appeal, without a finding that co-defendant driver was uninsured.
Corey Carter, Plaintiff/Respondent, vs. Shelter Mutual Insurance Company, Defendant/Appellant, and Deandreis Dowell, Defendant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101969

Civil

Timely proffer of Pleading and Defense Bars Default
Circuit court may enter default against party who has "failed to plead or otherwise defend [.]" In action for dissolution of marriage, in which child custody and domestic violence was at issue, circuit court re-set hearing "to allow [appellant] opportunity to file responsive pleadings [.]" At re-set date, appellant appeared with pleading for filing, which rule allows by delivery to circuit judge. Nevertheless, circuit judge refused filing, entered default judgment for respondent, and denied motion to set aside judgment. Circuit court's default was an abuse of discretion because appellant tried to file pleading and other wise defend, prevented only by circuit judge. "[W]e are unable to understand why the defendant in this case was not allowed to file [her] answer." Default judgment and denial of motion to set aside reversed as to custody, child support, the division of property, and all other matters except ruling that dissolved marriage.
Matthew G. O'Neill, Respondent, vs. Stefanie D. O'Neill, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED102038

Criminal

Death Penalty Affirmed
Circuit court did not abuse its discretion in denying an additional competency evaluation for guilt phase and or penalty phase. Appellant's unease during trial for capital murder did not show inability to participate, did not make waiver of testimony involuntary, and did not require a continuance for medication. Trial may continue in defendant's intentional absence. Intentional absence may constitute a waiver of counsel even without an express statement and with unintended consequences. Circuit court did not abuse its discretion in denying appellant's motion to send selected exhibits to jury during deliberations. Victim impact statements are admissible, including brief live testimony. Death penalty affirmed.
State of Missouri, Respondent, vs. Jesse Driskill, Appellant.
(Overview Summary)
Missouri Supreme Court - SC93882


No Double Jeopardy with Unlawful Use and ACA
Double Jeopardy does not bar convictions for both unlawful use of a weapon by firing from a car and armed criminal action. No plain error review granted for prosecutor's closing argument in rebuttal to appellant's victim-blaming theory.
STATE OF MISSOURI, Plaintiff-Respondent, v. CLYDE CLEVELAND WHITE, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD33284


"Police Intervened in Time"
Purpose of criminalizing attempted offense is "neutralizing dangerous individuals." Whether appellant had taken a substantial step toward committing offense depends on what appellant did rather than what he had yet to do. Evidence that appellant bought, practiced with, and concealed weapons, studied Columbine, and made his own similar plan, were a basis for a rational fact-finder could find beyond reasonable doubt that appellant had the purpose of committing first-degree assault and armed criminal action. Circumstances showing the absence of restraint and appellant's freedom to leave shows that no custodial interrogation took place, so circuit court did not err in admitting resulting statement. Besides statement, other corroborates appellant's statements and establishes corpus delecti.
STATE OF MISSOURI, Respondent, vs. BLAEC JAMES LAMMERS, Appellant.
Missouri Court of Appeals, Southern District - SD333256


Possession Shown
On premises jointly occupied, evidence supporting a finding that appellant alone possessed contraband included proof that contraband was more within appellant's easy reach than co-habitant's, and was mingled with appellant's personal belongings with cash and other evidence of selling contraband.
STATE OF MISSOURI, Plaintiff-Respondent, v. ADRIANO RAPHAEL CLARK, SR., Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD33205

Evidence

Collateral Source Rule Explained
Collateral estoppel bars insurer from challenging judgment against its insured. Insurer that refused defense of insured waived, or is estopped from raising, defenses including credits or set-offs from settlements with co-defendants. Generally, the law provides damages in the amount of plaintiff's loss but, where that loss is mitigated by insurance that plaintiff paid for, that payment should benefit plaintiff and not defendant, so defendant's evidence of insurance proceeds is barred under collateral source rule. Circuit court abused its discretion in allowing evidence that a collateral source mitigated plaintiff's damages. "An equitable garnishment action is 'a suit in equity against the insurance company to seek satisfaction of one's judgment under an insurance policy' and, "[i]n equitable actions, the determination of whether to award prejudgment interest is left to the discretion of the trial court." Remanded to remove credit for collateral sources from award against defendant and re-determine whether to award prejudgment interest and costs.
Randel McDonald, et al vs. Insurance Company of the State of Pennsylvania, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD77854


Open Cross was not Error
Statute provides that any witness is subject to cross-examination "on the entire case." That includes challenging expert's credibility by testing extent of expert's knowledge of instant facts. "A party who opens a subject is held either to be estopped from objecting to its further development or to have waived the right to object to further development."
In the Matter of the Care and Treatment of Ralph Booker A/K/A Ralph F. Booker, A/K/A Ralph Freeman Booker, Jr. vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD77460

Family

Garnished Employer Must Comply
Statutes provide for enforcement of child support orders by garnishing wages in possession of obligor's employer. "[T]he employee has 30 days to contest the order based on mistakes of fact as to the identity of the obligor or the amount of the withholding (but not the amount of child support actually owed)." Garnishment lasts until employer receives notice to cease, with liability to the State for failure to comply. In that action, obligor is not a necessary party and obligor's separate payments are irrelevant because employer's liability is at issue, not obligor's.
Missouri Department of Social Services, Family Support Division, Respondent, vs. J & J Industrial Supply, Inc., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101158

Local Government

Formal Ratification of Government Contract Required
Statutes condition validity of any contract made by any "municipality" on written appointment and authorization of municipality's signatory. "It has been considered sufficient but necessary under ยง432.070 that the authority to execute contracts on behalf of a [municipality] be entered of record upon the minutes of the board . . . even where, as here, other evidence establishes actual consensus." Later amendments to contract do not cure omission of formal written appointment and authorization at the beginning, and no equitable remedy applies.
Michael B. Ballman and Randy L. Sanders, Appellants, vs. O'Fallon Fire Protection District, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101917

Miscellaneous Actions

Fraudulent Transfers Act Explained
Missouri Uniform Fraudulent Transfers Act defines creditor and debtor according to existence of a claim, not a judgment. Act defines assets to exclude property held by the entirety where only one spouse is subject to claim. But dismissing one spouse does not bar claim against all assets on summary judgment for two reasons. First, whether all assets at issue were entirety property was in dispute. Second, because dismissal was without prejudice, allowing a re-joinder of dismissed spouse and claim against entirety assets.
Jesse Curtis, Plaintiff/Appellant, v. Richard James and Sharon James, Defendants/Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101485

Real Estate

Transfer Dissolves Joint Tenancy
When one tenant in joint tenancy with right of survivorship transferred his interest to a trust, that transfer dissolved the joint tenancy. "[A] joint tenancy of this nature may be destroyed at the pleasure of either tenan[t.]"
JOHNNY WOOD, Appellant, vs. RUSSCELL PAVLIN, as Trustee of The Charles Russell Wood R/L/T/A, dated 01/30/06, Respondent.
Missouri Court of Appeals, Southern District - SD33340

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Affordable Legal Services of Thomas Sandifer
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Clayton, MO 63105

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