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Whats new in the law for the week

On Behalf of | Jun 19, 2015 | Uncategorized |


No Contested Case Review for Non-Contested Case
Circuit court had no authority over decision under statutes addressing judicial review of a contested case because decision was not the result of a contested case. It was the result of non-contested case because the only pre-decision hearing required no formality and did not determine any legal right, duty, or obligation. “[N]ot every case requiring a hearing is a contested case.” Remanded to circuit court to dismiss for failure to state a claim.
450 N. Lindbergh Legal Fund, LLC, et al., Appellants, vs. City of Creve Coeur, Missouri, et al., Respondents
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED102404


Notice by Mail was Valid Service
Rules allow for service as provided by statute and do not add requirements to such a statute. Statute allows service on foreign insurance company by delivery of petition and summons to Director of Insurance and Director’s first class mailing of petition and summons to company. Rules provide that collateral attack on merits of default judgment must occur within a year of judgment’s issuance but an attack based on personal jurisdiction may occur within a reasonable time. Attack “based on the terms of the insurance policy is, in actuality, a merits defense disguised as a jurisdictional argument.”
Ray Charles Bate and Deborah Sue Bate, Appellants vs. Greenwich Insurance Company, Respondent.
(Overview Summary)
Missouri Supreme Court – SC94256 

Top-Level Subpoena Quashed
“‘[T]op-level depositions’ may cause unnecessary annoyance, burden, and expense where ‘[p]ersons lower in the organization may have the same or better information.'” In action against Missouri Attorney General’s office for wrongful termination, circuit court did not err in quashing subpoena of Missouri Attorney General, because evidence showed that Missouri Attorney General had no personal knowledge of personnel actions and lower-level employees did. Appellant did not show that circuit court’s ruling was prejudicial in that appellant did not show that the ruling was outcome-determinative.
Randolph W. Wilkins, Appellant, vs. Office of the Missouri Attorney General and Chris Koster, Respondents
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101493 


Disclosure of Agent is Matter of Fact
“In a court-tried case, it is practically impossible to predicate reversible error on the erroneous admission of evidence” because judge is presumed to have ignored improper evidence; even more so when challenged evidence is cumulative. Statutes governing auction provide exception for usage and custom, which are matters of fact on which, when disputed trial court’s finding is entitled to deference at Court of Appeals. Challenge to judgment, based on evidence that ignores evidence supporting judgment, is ‘of no analytical or persuasive value.”
Missouri Court of Appeals, Southern District – SD33522 


Felon Concealed Carry Case Transferred
Missouri constitution bars laws retrospective in effect. Appellant, a felon with rights restored under former statute, was denied permit under later-passed statute that bars anyone with a felony conviction from holding permit for concealed weapon. Appellant raised constitutional issue in circuit court-though not in pleadings and the parties fully tried the case. “One clear indication that a constitutional challenge is real and substantial and made in good faith is that the challenge is one of first impression with this Court.” Transferred to Missouri Supreme Court.
William D. Hill, Petitioner/Appellant, vs. Oliver “Glenn” Boyer, Sheriff of Jefferson County, Missouri, Respondent.(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101552 

Corporations and Other Entities

No Foreclosure Sale on LLC Membership
Statutes governing LLC allow a charging order against membership. “[A] charging order is a post-judgment remedy that allows [a] judgment creditor of an individual debtor-member of [an LLC] to enforce a judgment by charging the individual member’s distributional interests with the unsatisfied amount of a judgment.” Statutes governing some legal entities allow execution of judgment by foreclosure sale on ownership share of those entities by charging order. But such provisions are absent from the statutes governing LLCs.
Disalvo Properties, LLC, Appellant, vs. Bluff View Commercial, LLC, Defendant, and Debi Purvis, Respondent.(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101977 


Asking for Money Implies Threat
On charge of second-degree robbery by forcible stealing by making a threat, whether a threat exists depends on what a reasonable person thinks about the facts. “A demand for money in that context is an implicit threat of the use of force in and of itself” in a bank because “[b]anks are regular targets of robberies, and bank employees have a heightened awareness of security threats.” That appellant approached teller with “one hand concealed, demanded money to which he had no lawful right, and directed the branch manager not to move any farther when she approached to investigate the situation” suggest that those acts were something “more than a mere request for some of the bank’s money.” Conviction affirmed.
State of Missouri, Respondent vs. Gary Leland Coleman, Appellant.
(Overview Summary)
Missouri Supreme Court – SC94554 

Substitute Juror Requires Reversal
Statute provides that an alternate juror either replaces juror disqualified before jury retires or is discharged. Violation is reversible error. Circuit court recalled discharged juror after jury began deliberating. Raising objection “with sufficient specificity to apprise the trial court of the alleged juror substitution error” and including claim motion for new trial preserved issue for appeal. Circuit court erred by overruling objection and denying motion for mistrial. Remanded.
State of Missouri, Respondent vs. Michael E. Amick, Appellant.
(Overview Summary)
Missouri Supreme Court – SC94324

Different Elements, No Double Jeopardy
State of Missouri, Respondent, vs. Carlton Porter, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101236 

Adult Treatment Starts at 18
“The 14th Amendment Due Process Clause bars involuntarily obtained confessions from being admissible at trial” and State has the burden to show that confession was voluntary and evidence did not show coercion. The totality of the circumstances includes defendant’s age of more than 18 years, three Mirandizings, and absence of coercive tactics. Officer’s use of deceit does not affect voluntary character of confession. Circuit court did err plainly err in admitting cumulative evidence especially when other evidence of guilt is overwhelming. Circuit court did plainly err in violation of due process of law and protections against cruel and unusual punishment when it imposed statutorily mandated sentence of life without the possibility of parole on 18-year old. “[T]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood [.]”
State of Missouri, Plaintiff/Respondent, v. Rickey Bates, Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101325 

Employment Security

Misconduct Not Shown
In claim for benefits, statutes provide a defense to employer who terminated claimant for misconduct connected with work, which includes “disregard of standards of behavior which the employer has the right to expect of his or her employee.” That type of misconduct does not apply to disregard of the express directives of employer. Therefore, Labor and Industrial Relations Commission did not err in concluding that disregard of standards of behavior which the employer has the right to expect of an employee did not disqualify claimant from benefits.
In the Matter of SCOTT ZINEVICH, Claimant/Respondent, vs. DIGITAL MONITORING PRODUCTS, INC., Employer/Appellant, and MISSOURI DIVISION OF EMPLOYMENT SECURITY, RespondentMissouri Court of Appeals, Southern District – SD33562 

Voluntary Quit Affirmed
Quitting work voluntarily without good cause connected to work disqualifies claimant from benefits. Conditions that motivate an employee to quit his job “must be real, not imaginary, substantial, not trifling, and reasonable, not whimsical, and good faith is an essential element.” Claimant continued to work under conditions alleged to be safe so that he could avoid discipline. Inaction to remedy conditions before quitting negates good faith.
Zachary Smith, Appellant, vs. Greyhound Bus Company and Division of Employment Security, Respondents. (Overview Summary)
Missouri Court of Appeals, Eastern District – ED102383 


Rebuttal Allowed
Circuit court did not abuse its discretion in admitting evidence showing that victim and defendant were acquainted, even though such evidence might build sympathy for victim. Circuit court did not abuse its discretion in admitting otherwise inadmissible evidence in rebuttal of defendant’s evidence. Analogy made in State’s closing argument was not outcome-determinative, given that eyewitness testimony that defendant dragged victim with car and, when he was flung into the street, turned around to drive into him.
State of Missouri, Plaintiff/Respondent, v. Yolonda Washington, Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101523 


Co-Worker Exclusion Trumps All
City’s public entity general liability policy excluded coverage for injuries to employee caused by co-worker. Plaintiff “for whom liability coverage is excluded under a fellow employee exclusion cannot look to the same policy’s uninsured motorist provision for coverage because that would nullify the fellow employee exclusion and give the insured protection for which he did not bargain.” Motor vehicle financial responsibility law excludes injury to employees from its scope. Therefore, co-worker driving truck that injured plaintiff was not an underinsured motorist for underinsured motorist coverage.
Lucas Cox, Plaintiff/Appellant, vs. St. Paul Fire and Marine Insurance Company, Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED102333 

Local Government

Statutes Determine Fire Protection Territory
Statutes provide that anything that the district’s governing board can do, the fire protection district’s voters may do by initiative or referendum. But governing board has only those powers expressly granted by law, and manner of exercise specified is exclusive. Statutes provide procedure for excluding property from district through petition to district board, notice, and decision, so board could not exclude property from district through election; therefore, voters could not exclude property from district by referendum or initiative. Therefore, circuit court did not err in denying mandamus to put referendum to shrink district’s borders on ballot.
Georgiann Manz, et al vs. Prairie Township Fire Protection Board, et al
(Overview Summary)
Missouri Court of Appeals, Western District – WD78662

Personal Injury

Fee Alleged in Recreational Use Act Claim Not Enough
Recreational Use Act immunizes landowner that makes its “real property, land and water, and all structures, fixtures, equipment and machinery” available for recreational use without charge. The charge that negates immunity is an amount to enter, but plaintiff alleged only that defendant owner charged a use fee for construction of docks on its lake. “[Plaintiff] concedes that plaintiff and decedents were free to enter the Lake as often as they wished without paying an “admission fee” to [defendant].” Use fee for dock construction is not primarily commercial, but is for the purpose of complying with federal regulations, so it does not take lake out of immunity. Therefore, Appellant failed to state a claim [.]
Angela Anderson, Appellant vs. Union Electric Company, Respondent.
(Overview Summary)
Missouri Supreme Court – SC94372 


Must Show What Investigation Would Have Revealed
On motion for relief based on ineffective assistance of trial counsel, movant must show prejudice. Where prejudice results from insufficient investigation, movant must show that investigation would have yielded information helpful to movant. When investigation is mental examination, movant must allege what examination would have shown. When movant does not prove that, movant has not shown prejudice.
Matthew Hendrix vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District – WD77353 

Adult Treatment Starts at 18
Eighth Amendment bars sentences grossly disproportionate to offense, but sentence within statute rarely fails that test, including consecutive sentencing. Factors do not include characteristics of defendant and, if they did, they would not favor defendant who repeatedly violated probation with violent offenses. Misinformation about consequences of guilty plea may show that trial counsel was ineffective, but that does not include predictions about sentencing, at least not where defendant knew the range possible.
Isadore Glover, Appellant, vs. State of Missouri, Respondent  (Overview Summary)
Missouri Court of Appeals, Eastern District – ED101719 


No Taxpayer Standing to Challenge Another’s Assessment
Constitution requires uniformity of assessment. Statute provides that assessment on some commercial property, but not others, excludes costs of new construction. But a tax credit does not constitute an expenditure of public funds for taxpayer standing. Appellants’ challenge to statute constituted merely a property owner’s attack on another’s assessment, which does not support standing to sue, even on allegation that a tax break for one is a burden on the rest.
Airport Tech Partners, LLP, and Stentor Company, LLP, Appellants vs. State of Missouri and City of Kansas City, Missouri, Respondents.
(Overview Summary)
Missouri Supreme Court – SC94269 


Deterioration Excludes Damage under ISRS
Statutes governing infrastructure replacement surcharge (“ISRS”) provide that ISRS pays for replacement of infrastructure that has deteriorated. Deterioration does not include growing worse generally, so pipe damaged by third party was not covered under ISRS. Public Service Commission’s order is lawful if statutes authorize it and is reasonable if it has support in substantial and competent evidence, is not arbitrary or capricious, and does not constitute an abuse of discretion.
In the matter of the verified application and petition of Liberty Energy (Midstates) Corp. d/b/a Liberty Utilities to change its infrastructure system replacement surcharge, Missouri Public Service Commission, Respondents vs. The Office of Public Counsel, Appellant.
(Overview Summary)
Missouri Supreme Court – SC94470
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