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Whats new in the law for the week

On Behalf of | Jun 5, 2015 | Uncategorized |


Personal Vindication No Exception to Mootness
In juvenile action, circuit court’s jurisdiction has “continuing jurisdiction during the adjudication and dispositional phases [but] only as long as the child is in the custody of the division.” “In determining mootness, the appellate court may consider facts outside the record” like a ruling that undoes judgment appealed from. Judgment restored custody to appellant, which is the relief sought on appeal, and ended circuit court jurisdiction. Mootness requires dismissal, and facts supporting an exception render dismissal discretionary, and do not require appellate review. No exception exists for collateral consequences to a party. Personal vindication is not a matter of general importance, especially where the need for vindication is speculative.
In the Interest of: J.T.S.; Juvenile Officer vs. H.J.S. (Mother)
(Overview Summary)
Missouri Court of Appeals, Western District – WD77713


Successor Judge’s Authority Examined
On petition setting forth multiple counts, plaintiffs abandoned all but one. First judge presided at trial, issued judgment on one remaining count, awarded attorney fees in an amount to be named later, and left office. Rule provides that upon disability of a judge by “going out of office [,]”a successor judge who did not preside at trial may either perform disabled judge’s duties or order a new trial. Second judge-successor judge-issued a judgment adding the amount of attorney fees and ruled in defendants’ favor on abandoned counts. If that ruling for defendants was error, it was harmless, because they did not change the outcome. Third judge-filling in for successor judge on day of hearing on after-trial motions-granted new trial on all counts. That ruling was error because second judgment’s ruling for defendants was harmless and did not support a new trial.
Douglas Brian Cross vs. L.S.M.C., Inc., Et Al.
(Overview Summary)
Missouri Court of Appeals, Western District – WD76849 

No Relief from Default Judgment
Rule provides an action to set aside default judgment within a year of judgment’s issuance, by petition stating good cause and a meritorious defense, but appellant did not bring an action under that rule. Rule allows circuit court to set aside a judgment void for lack of jurisdiction. Missouri constitution determines circuit court’s jurisdiction, not whether petition states a claim for relief. So even if petition did not state a claim for relief, resulting default judgment is merely erroneous, not void. Therefore, rule on void judgments does not apply. Rule that allows circuit court to set aside a judgment that is no longer equitable applies prospective relief to which facts have changed.
Erica Hollins, Appellant, vs. Capital Solutions Investments I, Inc., d/b/a Loan Express Co., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED102093 


Self-Defense Instruction Required
When evidence, if believed, supports a finding, Defendant has the right to a jury finding on that issue. Statute provides justification in use of deadly force when necessary to prevent any forcible felony or serious injury or death justifies use of deadly force. Evidence supporting such a finding included victim’s prior convictions including crimes of violence, other acts of violence including against defendant, and credible threats against lives and property when offense charged occurred.
State of Missouri, Respondent, v. Aaron Amschler, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101585


Operating v. Storm Water
Statutes provide that agency may make regulations to prevent pollution, under which agency made regulations requiring salvage yard to have a storm water permit. In action for injunctive relief based on run-off potential, circuit court erred in ruling that statutes did not require salvage yard to have an operating permit for a point source.
Missouri Court of Appeals, Southern District – SD33291 


Extensions of Child Support Discussed
Party claiming incapacity has the burden of proof on relevant facts. Statutes provide that child support ends generally at age 18, with exceptions appearing before the age of 18: for child attending post-secondary educational institution, when the child completes the program or turns 21; for child physically or mentally incapacitated, when the child turns 21; and for child “physically or mentally incapacitated [,]”unmarried, and insolvent, as extended. On motion for summary judgment, Court of Appeals does not review ruling in light most favorable to the prevailing party, but on same standard as circuit court: whether moving party established facts entitling that party to a favorable decision beyond genuine dispute. Genuine dispute remained, as evidence from hearing showed, so circuit court erred in granting summary judgment.
Kathy (Keller) Kay vs. John B. Keller, II
(Overview Summary)
Missouri Court of Appeals, Western District – WD78235 

Child Custody Jurisdiction Case Transferred
Uniform Child Custody Jurisdiction and Enforcement Act provides that, as to younger child born in Missouri, judgments of West Virginia courts governed under continuing jurisdiction of court in West Virginia where dissolution of marriage-and attendant custody action for older child-began. “[L]ogically any dissolution action involving minor children must necessarily determine custody of all children of the marriage, including those born after the initial filing. Respecting this imperative, even accepting that the present proceedings didn’t “commence” as to [younger child] until her birth five months after that initial filing, we nonetheless cannot construe the home state provisions of the [Act] to pr[o]scribe the impractical result of bifurcation or transfer of the case midway through litigation. The [Act] is intended to avoid jurisdictional competition and conflict.” Missouri need not give full faith and credit to foreign judgment rendered without sufficient notice, but notice in Missouri or State having jurisdiction is enough, and eight days’ notice of hearing is sufficient in West Virginia, at least when appellant was experienced in that forum. Transferred to Missouri Supreme Court.
Kelly J. Blanchette, Appellant, vs. Steven M. Blanchette, Respondent.
(Overview Summary)

No Unusual Circumstances Required for Attorney Fee Award
Statute provides that venue for action to dissolve marriage is where petitioner resides. When circuit court’s determination of venue depends on determination of facts, Court of Appeals reviews ruling for abuse of discretion, and evidence supported circuit court’s ruling. Statutes provide that respondent’s possession of children is not grounds to award sole custody to respondent, but that respondent’s role as primary caretaker from birth was respondent’s “interaction and interrelationship” with child is relevant, including respondent’s role as “primary caretaker.” Other evidence supporting award included appellant’s poor communication, skipped visitations, and reliance on respondent to control child. Circuit court cannot divide property consumed for living expenses, but can divide property squandered or secreted, as to which the party alleging squandering or secreting has the burden of proof. Burden of proof is on party alleging that part of pension is separate property. Imputation of minimum wage income was not an abuse of discretion. Statute sets out factors for an award of attorney fees and they do not include unusual circumstances as in the exception to the American Rule. Ability to pay and protraction of litigation support award of attorney fees.
Lisa M. Rallo, Respondent, vs. Pete S. Rallo, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101746


Medicaid Sanctions Upheld
In action before the Administrative Hearing Commission, agency’s answer omitted a digit from the citation of regulation authorizing Medicaid sanction, and Commission regulations provide for judgment on the pleadings, but appellant did not seek that relief from the Commission and regulations provide that challenges to pleading are waived if not raised. How well witness knew regulations and documents was a matter for the Commission to weigh in determining credibility, to which Court of Appeals defers. Commission need believe that required records were not among those requested, especially when appellant was required to produce all records, and Court of Appeals will not substitute its judgment for Commission’s on substantial and competent evidence. Of the statutes governing business records, the one applying to contested cases governed Commission hearing, and that statute does not require that the sponsor of a business record have personal knowledge of the record’s making. Record does not show that racial animus motivated agency where record does not show appellant’s race.
Lindenwood Care Corp., d/b/a Loving Care Home vs. Missouri Department of Social Services, MO Healthnet
(Overview Summary)
Missouri Court of Appeals, Western District – WD77654 


No Prejudice Shown
When facts support a finding of abandonment, circuit court must inquire sua sponte, but circuit court ruled on all claims in initial motion and amended motion so no prejudice resulted. Movant did not show that circuit court relied on inadmissible evidence to convict movant, so movant showed no prejudice as required for a claim of ineffective assistance of counsel.
John Childers, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101405

No Claim for Unclear Advice
Rule allows an extension of time to file an amended motion, and motion counsel filed for extension outside that time, but circuit court granted motion for extension nonetheless. Amended motion was filed within extended time, and circuit court ruled on claims, so Court of Appeals rules on that motion. Movant alleged that trial counsel was unclear as to whether movant must plead guilty to all charges or none. Allegation of unclear advice does not state a claim for failure to advise. Record refuted movant’s allegation. The loss of movant’s preferred alternative-an Alford plea and related civil action against authorities-is a collateral consequence of plea on which trial counsel has no duty to advise. Movant’s theory on appeal is affirmative misadvice, a different theory, which does not preserve his issue for appeal. No prejudice results from pleading guilty and entering an Alford plea.
Michael S. Federhofer, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101361 

Real Estate

Lease and Later Agreement Unambiguous
Lease provided five-year term with renewals upon 90 days’ notice. Later settlement provided that landlord may terminate upon notice and payment of liquidated amount but expressly provided that tenant otherwise “will continue to pay rent and the parties will perform according to the lease and any assignment or amendments thereto.” Therefore provisions for rent payments and renewal notice remained in effect, term of lease expired in absence of renewal notice, and liquidated amount was not due. Circuit court did not err in excluding parol evidence offered without a showing of “fraud, accident, mistake, duress, or mental incapacity.”
Car Wash Specialties, LLC, Plaintiff/Appellant, vs. Harold L. Turnbull and Elsie W. Turnbull, Defendants/Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED102075 

Assessment Action Authorized
Statute governing nonprofit corporations defines a quorum as “votes entitled to be cast [,]” but that statute is a default in lieu of any specific provision in corporation’s governing documents. Respondent’s bylaws provided that quorum included members whose vote was suspended. A quorum thus calculated was present for a vote authorizing respondent’s manager to file an action against appellant for collection of unpaid assessment, so manager had standing to bring that action, and circuit court had authority to rule.
Mannering Condominium Association, Respondent, vs. David A. Schulte, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED101734
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