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Updates in the Law for the week

On Behalf of | May 1, 2015 | Uncategorized |

What’s new in the Law for the week


Rams Arbitration Provision Struck in Part
Writs of mandamus and prohibition have become nearly indistinguishable, and mandamus is appropriate when no adequate remedy at law is available, and available but wasteful litigation is not an adequate remedy. “[D]istinctions between the two types of writs are anachronistic [.]” Federal Arbitration Act applies State contract defense to arbitration agreement. Arbitration clause applies to all claims against all defendants and non-signatory defendants may enforce clause against signatory. Mutual obligation bound parties, so consideration was adequate and parties were sophisticated, so procedure was not unconscionable. Agreement incorporated by reference association rules and regulations but not related guidelines-it did “not incorporate the terms in such a way that [employee] could manifest his consent”-so procedure defaults to Missouri Arbitration Act. Missouri Act provides for court appointment of substitute arbitrator in lieu of designated arbitrator who, as an employee of employer, was an unconscionably potentially biased choice.
State ex rel. Todd Hewitt, Relator vs. Honorable Kristine Kerr, Judge, Circuit Court for St. Louis County, Missouri, Respondent.
(Overview Summary)
Missouri Supreme Court – SC93846


Incomplete Order is Void
Agency order made without jurisdiction or without sufficient definiteness is void. Statute on judicial review of administrative orders provides that other procedures to attack void order expressly remain in place. City ordinances required findings on grounds for demolition of dangerous building, but order omitted those findings, so that order was void. In action for inverse condemnation, circuit court did not err in excluding that order offered as authority for demolition. Statute providing prejudgment interest on accounts includes claims and demands. For claim to be liquidated does not require exact calculation.
Dave McNeill vs. City of Kansas City, MO
(Overview Summary)
Missouri Court of Appeals, Western District – WD77732


Judgment not Final
Judgment that leaves issues unresolved is not final and subject to appeal. Rule allows certification of such judgment for appeal, but circuit court made no such certification. Judgment ruled on some claims but not all, and order denying motion for rehearing discussed claims but did not rule on them, so judgment is not final. Appeal dismissed.
Patrick W. Bellinger, Appellant, vs. Keith Lindsey and Olivia Lindsey, Respondents
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101313 


No Advisory Opinion under Declaratory Judgment
“To maintain a declaratory judgment action, [petitioner] must demonstrate a justiciable controversy for which it has no adequate remedy at law.” Differing readings of licensing statute, even if one is in an attorney general opinion, does not constitute a justiciable issue, only a request for an advisory opinion on facts that have not happened. An adequate remedy at law exists in the process to apply for a license.
Strack Excavating, LLC vs. Missouri Department of Natural Resources, Land Reclamation Commission; Saxony Lutheran High School
(Overview Summary)
Missouri Court of Appeals, Western District – WD78015 

Challenge to Damages is Meritorious Defense 

Circuit court has more discretion to set aside a default judgment than to maintain it. Rule allows setting aside of default judgment on a motion, made within a reasonable time, showing good cause and a meritorious defense. Good cause includes negligence and a meritorious defense includes a challenge to the amount of damages.
The Wanda Myers Living Trust vs. NEA LG LE, et al
(Overview Summary)
Missouri Court of Appeals, Western District – WD77385 

Corporations and Other Legal Entities

Corporate Form Disregarded in Action for Creditor’s Bill
Res judicata applies when later action is identical to earlier action as to cause of action, thing sued for, parties, and capacity. Identity of cause of action is satisfied by common events, and despite different theories, and identity of the thing sued for means the remedy is the same. Identity of capacities depends on individual or representative status in actions, and identity of parties is satisfied by privity of party in later action with party in earlier action, including assignment of claims from earlier action for enforcement in later action. Earlier action merges all other claims, but not as to all parties; multiple parties mean multiple claims. Hence, claims were res judicata against corporations, but not owner, because owner was not a named defendant and corporations are separate entities at law. But when a corporation’s owner uses the corporation’s separate identity to commit dishonest conduct for the owner’s ends, the owner may be personally liable in an equitable action. Relevant degree of control is control exercised in the conduct, so partial owner transferring entity’s assets to shield them from creditors may be personally liable on entity’s obligation. A consent judgment entered “without the present intention to perform is a misrepresentation sufficient to demonstrate fraud.” To state claims for constructive trust and equitable lien includes identifying a res, which requires more than a general indication of defendant’s assets.
Circuit court correctly treated action for creditor’s bill as a separate action in equity and rendered a judgment that was final and subject to appeal.
Commonwealth Land Title Insurance Company, Plaintiff/Appellant, vs. Frank J. Miceli, et al., Defendants/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101473


Extra Instruction No Problem
On charge of second degree domestic assault by choking, victim’s testimony and photographs of marks on neck supported a finding of choking. Extraneous instruction defining attempt, submitted to jury, was erroneous but not prejudicial because State did not rely on it and defense cited evidence showing completed offense.
State of Missouri vs. Joseph A. Bax
(Overview Summary)
Missouri Court of Appeals, Western District – WD77339

Felony Murder is Any Murder during Felony
On charge of felony murder, victim’s death need not occur at defendant’s hand, only during commission of felony in which defendant participated. On charge of armed criminal action, evidence that other weapons were involved does not negate defendant’s guilt. As to venire persons’ voir dire, “challenges made for the first time after a conviction are highly suspect [,]” and circuit court was “under no duty to strike . . . on its own motion” a rehabilitated venire person.
State of Missouri vs. Derrell M. Wade
(Overview Summary)
Missouri Court of Appeals, Western District – WD77034

Physical Force Found
Elements of robbery in the second degree include forcible stealing, which includes preventing or overcoming resistance by physical force. Finding of physical force stood on evidence of a nudge from behind and seizure of purse from victim’s grasp. Closing argument was not outcome determinative where evidence of guilt was overwhelming so it did not result in plain error.
State of Missouri, Respondent, vs. James W. Lewis, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101944 

Withdrawal of Guilty Plea Denied
Denial of motion to withdraw guilty plea is not subject to appeal, but judgment based on guilty plea is. If plain error is available for an argument not raised to circuit court, none is apparent in receiving guilty plea that movant has failed to show, was based on “fraud, mistake, misapprehension, coercion, fear, persuasion, or the holding out of false hopes.”
State of Missouri, Respondent, vs. Andre McAfee, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED100806 


Learned Professional not Entitled to Overtime
Federal regulations provides time and a half for workers on overtime, with an exception for learned professionals. Learned professional status depends on discretion and following prescribed protocols does not negate learned professional status.
Sherry Yihui Weng, Plaintiff/Appellant, v. Washington University, Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101420 


No Appeal of Invited Error
Objecting to evidence in circuit court on one basis and appealing to Court of Appeals on another basis preserves neither basis to challenge ruling. Though witness testified that appellant was a “person of interest” in a matter other than offense tried, other evidence of guilt is overwhelming, so manifest injustice or a miscarriage of justice is not apparent and Court of Appeals will not conduct plain error review. When defense elicited evidence that murder weapon was not found among several weapons that officers found in appellant’s possession, defense waived error as to evidence that officers found several weapons in appellant’s possession and any error in allowing that evidence was invited error.
State of Missouri vs. Jeffrey Dean Moreland
(Overview Summary)
Missouri Court of Appeals, Western District – WD77201

Lineup Okay
Circuit court did not err in sustaining objection to defendant’s question of witness as to quality of lineup where no foundation showed that the witness was qualified to evaluate lineup. Record showed that lineup was not impermissibly suggestive because victim identified defendant based on victim’s own recall, not on any manipulation of process.
State of Missouri, Respondent, vs. Darius Morgan, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101190 


Domestic Partnership was not Marriage
Statute on maintenance provides grounds for termination including re-marriage, but marriage does not include domestic partnership under Vermont law. Statute also includes “a substantial and continuing change in circumstances” but evidence that obligee ceased spending on an item did not negate that the item was necessary, especially where obligor ceased paying the maintenance that made that spending possible, as to oblige who “is currently living out of her car and has cancer.”
Faye Kunce N/K/A Faye Graham vs. Jeffrey J. Kunce (Overview Summary)
Missouri Court of Appeals, Western District – WD77399

Age of 18 is Significant
Statute allows change of custody on proof of a change in circumstances and child’s best interest. Circumstances supporting change in custody include custodial parent’s permission for child to live with noncustodial parent. In action to modify custody, statute sets out factors for determining child’s best interest, but findings of fact addressing less than all factors were sufficient to show that change in custody was in child’s best interest, because “[m]any of the best interest factors under [statute] are not applicable to a ‘child’ who is eighteen or older” like a parenting plan.
Gale W. Blomenkamp vs. Polly A. Blomenkamp
(Overview Summary)
Missouri Court of Appeals, Western District – WD77040 

Judgment Determined Descent
Settlors’ trust instruments transferred property to undefined “descendants.” Paternity judgment is conclusive for all purposes under Missouri statute, and Washington State judgment concluded that respondent was child of settlors’ grandchild. Neither appellants’ lack of notice in that action, nor their allegations of contrary DNA evidence in a later action, change that result.
In the Matter of the Charles H. Stix Testamentary Trust dated August 7, 1945, and the Clara F. Stix Testamentary Trust dated April 20, 1943.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED102055


Policy’s Exclusion Covered Owner
General commercial liability policy and associated umbrella policy protected corporation, directors, and officers, from liability to the public; and employee exclusion specifically excluded liability to employees of corporation from coverage. Corporation acts only through agents, so agent’s acts on corporation’s behalf are acts of insured, and agent’s acts are under policy’s exclusions. Exclusions rendered coverage impossible so insurer never had any duty to indemnify or even to defend.
Katina Piatt, et al., Appellants vs. Indiana Lumbermen’s Mutual Insurance Company, et al., Respondents.
(Overview Summary)

Missouri Supreme Court – SC94364 No Standing for Declaratory Judgment
In declaratory judgment action, appellant claimed coverage, under uninsured motorist clause of appellant’s automobile policy, based on the status of tort-feasor’s insurance policy. Tort-feasor and tort-feasor’s insurer were not parties to that declaratory judgment action. Statute governing action states that judgment does not bind a non-party, so no effective relief was available and-since appellant neither a party to, nor a third-party beneficiary of, tort-feasor’s insurance contract-appellant had no standing to seek declaratory relief. Settlement offer from tort-feasor’s insurer refutes claim that tort-feasor was uninsured.
SHELTER MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, v. NICHOLE B. BEDELL, Defendant-Appellant.
Missouri Court of Appeals, Southern District – SD32567

Local Government

Prior Jurisdiction Prevails
Annexation statutes provide for annexation of unincorporated land only. Twenty-two years before appellant’s later proceeding for annexation of land, respondent’s earlier proceeding for annexation of same land began. Earlier proceeding constitutes prior jurisdiction that incorporates land to the exclusion of all others. Judgment’s description of land did not include metes and bounds, but undisputed expert testimony supported a finding as to its configuration. Statutes provide exclusive method for de-annexation so “acquiescence, estoppel, or waiver” will not achieve that end.
City of Lake Saint Louis, Missouri, Plaintiff/Respondent, v. City of O’Fallon, Missouri, Defendant/Appellant.   (Overview Summary)
Missouri Court of Appeals, Eastern District – ED102003

Personal Injury

Claim Extinguished Before It Accrued
Statute imposes a two-year time limit on claim against medical provider for leaving foreign objects in patient, allows some tolling for discovery of event, but caps time at ten years from event, not from discovery of event. Equitable tolling does not apply. Due process and Missouri constitution’s open courts provision protects right to pursue claims but only as otherwise recognized at law. Equal protection clause requires only a rational basis for statute because statute does not address a fundamental right or suspect class requiring strict scrutiny. Statute is not a special law because it applies to all within its classification.
Shonda Ambers-Phillips and Richard Phillips II, Appellants vs. SSM DePaul Health Center, Respondent.
(Overview Summary)
Missouri Supreme Court – SC94322


Issues Waived at Plea Hearing
An Alford plea does not require defendant to believe that he will be convicted, only that he could be convicted. At Alford plea hearing, defendant waived Fourth Amendment issues, so new case law that arose after plea and before sentencing did not negate factual basis for plea or its knowing, intelligent, and voluntary nature.
Thomas E. Simmons vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District – WD77246

No Grounds for Late Filing
Rule conditions relief on timely filing except under court-made exceptions for late filing, but movant did not allege or evidence any of the grounds for such exception, so circuit court should have maintained its dismissal of motion.
Gene E. Dudley vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District – WD77218

Evidentiary Hearing Required
Recitation at plea hearing of factual basis for guilty plea is not intended to present a complete picture of the evidence. General statements of satisfaction with trial counsel’s performance do not refute movant’s allegation that, if trial counsel had advised him that a lesser offense was possible, he would not have pleaded guilty to greater offense and would have gone to trial. Those allegations entitle movant to an evidentiary hearing.
Corey A. Wiggins, Movant/Appellant, v. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101660


No Forced Sale under Asset Transfer Statute
Statute invalidates any sale of investor-owned utility system without permission of Public Service Commission, but that statute is not authority for Commission to mandate sale of assets, so Commission did not err in dismissing action seeking that relief for failure to state a claim. [Whether] “the [C]ommission has approved similar clauses in the past, or that other states permit them, is irrelevant if they are not permitted under our statute.”
City of O’Fallon, Missouri and City of Ballwin, Missouri vs. Union Electric Company D/B/A Ameren Missouri   (Overview Summary)
Missouri Court of Appeals, Western District – WD78067