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Whats new in the Law for the week

Administrative

Regulation Binds Agency
Rule published by agency binds agency that published rule. Agency published regulation that the elements of a claim to alter an existing permit, by constructing any water body, include the consent of certain landowners. Agency purported to grant claim for permit alteration to build new water impoundment structures without the required consent. Agency misapplied the law without applying that regulation.
FOWLER LAND COMPANY, INC., and MARGARET LEIST REVOCABLE TRUST, SANDY RUNNELS and LINDA HENDERSON, Trustees, Petitioners-Appellants vs. MISSOURI DEPARTMENT OF NATURAL RESOURCES, MISSOURI LAND RECLAMATION PROGRAM, ALTERNATE FUELS, INC., CONTINENTAL INSURANCE COMPANY, and CONTINENTAL CASUALTY COMPANY, Respondents-Respondents
Missouri Court of Appeals, Southern District - SD33166

ADR

Arbitrability Subject to Arbitration
Federal statutes provide that an arbitration clause is severable, so that it is subject to enforcement even when the rest of the contract is subject to challenge. Parties to a contract may agree to submit the threshold issue of arbitration clause's scope -the arbitrability of an issue-to arbitration. "A motion to compel arbitration of a particular dispute should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute."
Lashiya D. Ellis vs. JF Enterprises, LLC D/B/A Jeremy Franklin's Suzuki of Kansas City
Missouri Court of Appeals, Western District - WD78075

Appellate

Findings of Fact Control Review
"Credible, believable, even uncontradicted proof of evidentiary facts may not prove a contested issue of ultimate fact to the fact-finder's satisfaction." Absent findings of fact, any reasonable theory will support the judgment so judgment cannot have been against the weight of the evidence and circuit court must have applied the law to the facts correctly.
BLACK RIVER ELECTRIC COOPERATIVE, A Missouri Rural Electric Cooperative, Appellant. vs. PEOPLE'S COMMUNITY STATE BANK, n/k/a PEOPLE'S COMMUNITY BANK, Respondent.
Missouri Court of Appeals, Southern District - SD33444 

Deficient Brief Requires Dismissal
Rule requires appellant's brief to set forth Court of Appeals' jurisdiction to hear, set forth with citations to the record the facts of, and frame challenge to, judgment appealed. Failure to do so robs Court of Appeals of any ability to review judgment without conjecture as to appellant's theory and thus becoming an advocate for appellant.
Lisa Adams vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD77864 and WD77865 

Amend Brief when Asked
Amended brief virtually identical to initial brief, deficient as to standard of review, statement of facts, and points relied on, did not articulate any theory with sufficient clarity for Court of Appeals to rule on it without constructing it, thus becoming appellant's advocate.
Michael Summers vs. Missouri Department of Corrections
(Overview Summary)
Missouri Court of Appeals, Western District - WD77721 

Civil

Two Theories Support One Verdict Director
Federal Locomotive Inspection Act sets standards for operation of railroad. That act applied to locomotive being coupled to other cars as "in use" and so constitutes a standard of which a violation may support an action under Federal Employers' Liability Act. Therefore, safety regulation was admissible and appellant showed no jury confusion over inapplicable passages. Employer's negligence constituting even the "slightest cause" of injury supports liability. Evidence of later remedial action, if admitted to show negligence was admissible because regulation required that action. Evidence that employer breached a duty included testimony that step was slippery, either because it was not clean and dry, or because non-slip surface was worn. Circuit court erred in submitting separate verdict forms that split one claim into two overlapping verdicts on theories of negligence per se and general negligence, but without prejudice, because circuit court merged awards by accepting one and rejecting the other so that plaintiff received one recovery for all damages.
Thomas Host vs. BNSF Railway Company
(Overview Summary)
Missouri Court of Appeals, Western District - WD76934 

Judgment Not Rewritten
Judgment's provisions were unambiguous and unappealed so, even if judgment did not conform to law, courts will enforce it as written.
ROY MEDLIN, Plaintiff-Appellant, vs. RLC, INC., Defendant-Respondent, and JEREMIAH J. HAYES, et al., Intervenors-RespondentsMissouri Court of Appeals, Southern District - SD33437

Consumer

Cause of Action for fraud and Conspiracy not Stated
Rules require pleading of facts. "Although the petition need not plead evidentiary or operative facts showing an entitlement to the relief sought, it must plead ultimate facts demonstrating such an entitlement." In action for declaratory judgment, elements include the absence of an adequate remedy at law, which allegations that real estate is unique and notes are freely negotiable do not show, because they do not explain why damages are not adequate Motion for definite statement is not a pre-condition for a motion to dismiss. In action under violations of the Missouri Merchandising Practice Act, allegations that defendants' actions collectively constitute elements of claim states no cause of action against any one defendant. Motion for more definite statement is not a necessary pre-condition to a motion for dismissal. Point not developed in argument is abandoned.
Nancy Gardner, et al., Appellants, vs. Bank of America, N.A., et al., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101931

Criminal

Need for Continuance was Self-Created
Circuit court did not err in denying a continuance requested for further trial preparation when that need arose from switching counsel close to trial, and Court of Appeals will not find error when appellant cites different preparation on appeal than in circuit court. Statute defines value of property value as market value, which is subject to proof by a variety of means, and which evidence of fenced value does not necessarily refute. Allowing testimony as to which appellant conducted cross-examination did not create manifest injustice. Remanded to correct record nunc pro tunc for conviction for offense "that was charged, reflected in the jury's verdict, and orally pronounced by the court at sentencing"
STATE OF MISSOURI, Respondent, vs. RICKY ANTHONY MILLER, Appellant.
Missouri Court of Appeals, Southern District - SD33317

Two Firearms, Two Convictions
Value of items stolen is subject to proof by a variety of means, and price received from buyer of stolen items is not conclusive. Statute, enhancing sentence for stealing when item stolen is "any firearms [,]" does not prevent multiple convictions-one for each firearm stolen-so multiple convictions do not contravene double jeopardy clause.
STATE OF MISSOURI, Respondent vs. KURT ROSS, Appellant Missouri Court of Appeals, Southern District - SD33071 

Findings Required on Motion to Suppress
Whenever circumstances lead a reasonable person to believe that contraband is present in a car, that car I subject to search without warrant. Whether that automobile exception applies depends on factual issues, on which circuit court made no finding, so Court of Appeals cannot review.
Remanded for findings of fact.
State of Missouri vs. Kraig J. Walker
(Overview Summary)
Missouri Court of Appeals, Western District - WD77869 

Family

No Modification for Tax Changes
Form 14 commits to circuit court discretion whether to include in gross income significant benefits from employment, meaning benefits that could help parent to support child. Form 14 and excludes from income certain business expense reimbursements for a person "self-employed, in a sole proprietorship, or in a business with joint ownership" but movant showed no evidence of that status. To modify child support award requires evidence of a substantial and continuing change in circumstances, which does not describe the effect of a change in income tax treatment for amounts that movant received. Noncompliance with statutes requiring notice of relocation may be a factor in modification, but circuit court found no relocation as defined by statute, and Court of Appeals will defer to that factual finding. Difference in parties' income by $10,000 supported an award of attorney fees.
Jamie Lee Kropf, Respondent, vs. Mathew Adam Jones, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101529 

Insurance

Uninsured Coverage Inapplicable to Roadkill
The purpose of the statutes requiring uninsured motorist coverage is to make sure that coverage is available for person s injured by uninsured tortfeasors, so recovery under uninsured motorist coverage requires proof of tortious conduct by uninsured motorist. Appellant showed no tortious conduct in phantom motorist leaving deer's body on highway. Appellant shows no error as to theory of recovery not raised to circuit court. Extra space in numerals describing coverage amounts did not create an ambiguity given context of numbers. Anti-stacking provisions elated to uninsured and underinsured coverage were not ambiguously lumped together.
DENNIS HENTE, Plaintiff/Appellant, vs. 21ST CENTURY CENTENNIAL INSURANCE COMPANY, Defendant/Respondent. Missouri Court of Appeals, Southern District - SD33408 

General Consent Found
"[T]he rationale behind non-owned auto provisions in policies . . . is to cover occasional or incidental use of other cars without payment of an additional premium but to exclude coverage for habitual use of other cars, which would increase the risk on the insurance company without the corresponding increase in the premium." Policy excluded coverage for a vehicle, not owned by insured, but for the use of which insured had general consent. General consent was subject to policy's specific definition. Circuit court found facts within that definition. Summary judgment for insurer affirmed.
Paul H. Cowin, et al vs. Shelter Mutual Insurance Company, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD78020

Orders of Protection

No Harassment in Harangue
Statutes allow orders of protection within domestic context for abuse stalking. Abuse includes harassment, which consists of more than one incident of conduct serving no legitimate purpose that causes petitioner, and a reasonable person, alarm. Alarm means something more than ordinary unease. Stalking includes threat of physical harm. Evidence did not support petition for full order of protection made on those grounds. Communications regarding children have a legitimate purpose. Threats of litigation are no grounds for an order of protection.
JOHN SCOTT LAWYER, Petitioner-Respondent vs. KIMBERLY DIANE FINO, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD33448 

Personal Injury

Rear End Doctrine Explained
Missouri constitution provides that circuit court has plenary jurisdiction in civil actions. For personal jurisdiction, service of original petition suffices and, even if it didn't, appellant's participation in action did. On petition for damages based on negligence, evidence that first car was in the line of sight in front of a second car, but second car hit first car from behind, makes a prima facie case that driver of first car was negligent. But that prima facie case is subject to contrary evidence showing that no negligence occurred. Reversed and remanded for new trial.
Larry Williams and Lela Davis, Respondents, vs. Kayatana A. Thompson, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101478

Dram Shop Liability Explained
Prefatory language in statute governing dram shop liability shows that language following makes proximate cause an element in an action against liquor licensee for negligently serving intoxicated person. Statute thus defines tort liability to which statute, providing that a co-tortfeasor's settlement reduces plaintiff's award, applies. Award of compensatory damages, even when reduced to zero, still supports an award of punitive damages.
Virginia Payne vs. Ashley L. Markeson
(Overview Summary)
Missouri Court of Appeals, Western District - WD77553


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