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January 2018 Archives

Updates in the Law for the week

Administrative Bias Presumed Against
Administrative decision is presumed correctly made, and to show bias of decision-maker requires more than a preponderance of the evidence showing an appearance of impropriety, it requires clear and convincing evidence of improper influence. "'An administrative decision maker's familiarity with the adjudicative facts[,] even to the point of having reached a tentative conclusion prior to the hearing, does not disqualify the decision maker unless there is a showing that the decision maker is unable to judge the particular case fairly.' Id.(emphasis added)."
Buescher Memorial Home, Inc., et al. vs. Missouri State Board of Embalmers and Funeral Directors
(Overview Summary)
Missouri Court of Appeals, Western District - WD75907
Appellate Authority Insufficient
Statement of facts does not comply with rule if it only recounts appellant's version. Abstract statement of law does not constitute authority without citation more precise than a general reference to the Supreme Court Rules. Appeal dismissed.
SHELTER MUTUAL INSURANCE COMPANY, Plaintiff-Respondent, vs. RANDALL MITCHELL, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD32536
Commercial Assignment not Shown
Whether a valid arbitration agreement exists determines whether waiver is an issue. Respondents alleged that appellant could not prove their standing to enforce contract by assignment and appellant's exhibits did not establish assignment. Affidavits in support of motion to dismiss, treated as a motion for summary judgment, must consist of factual testimony that would be admissible if the affiant were a witness at trial. Attachments must also come within some exception to the rule against hearsay. An affidavit cannot make conclusions of law. "Proving the contents of lost documents, however, requires more than legal conclusions."
GEMINI CAPITAL GROUP, LLC, Plaintiff-Appellant, vs. DANIEL TRIPP and LELA THOMS, Defendants-Respondents.
Missouri Court of Appeals, Southern District - SD32289
Lost Notes Enforced
Appellant drafted waiver of jury trial provision in guaranties, which refer to any action on related notes, so appellant waived jury trial on notes. Statute provides for enforcement of lost note. Rule provides that objection to evidence does not prevent an amendment of the pleading to conform to evidence that does not change substance of pleading. Such amendment did not prejudice appellant because appellant did not dispute evidence. Contract's arbitration provision included all matters related to contract including claim for set-off. Contractual provision awarding costs of collection does not include attorney fees.
Midland Property Partners, LLC vs. Richard Watkins
(Overview Summary)
Missouri Court of Appeals, Western District - WD76027
Construction One Contract Per Lien
Statute governing mechanics liens sets a time limit for filing, which parties cannot extend, even by agreement. Earlier work and later work were not parts of the same contract. Earlier work had concluded before later work began, so contracts were separate, and mechanic's line filing for later work did not cover earlier work. "The evidence provides strong support for the proposition that the change-order work was 'a mere makeshift on which to hang an otherwise barred lien.'"
Manning Construction Company, Inc. vs. MCI Partners, LLC., et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD75284
Contract Husband not Liable for Wife's Bills
Court of Appeals is "an error-correcting court, not a policy-making court [.]" Doctrine of necessaries requires that when one spouse makes a contract, other spouse may be liable on that contract, but only for necessaries. On appeal of judgment granting hospital's claim against husband for necessaries incurred by wife, hospital did not show that health services were medically necessary. Hospital offered consent to treatment form, itemized list of services, and interrogatory referring to medical records, but no evidence of what hospital was treating is in record on appeal.
SAINT FRANCIS MEDICAL CENTER, Plaintiff-Respondent, vs. BRITNEY WATKINS, f/k/a BRITNEY CARNER, and TYLER WATKINS, Defendants-Appellants.
Missouri Court of Appeals, Southern District - SD32313
Corporations and Other Entities Successor Liability Discussed
Rules provide that defendant filed a responsive pleading, so judgment was not default, judgment was on the merits, of which defendant was entitled to notice, lack of which makes judgment irregular and subject to setting aside. Under doctrine of corporate successor liability, purchaser of corporate assets is immune from seller's liability except "(1) when the purchaser expressly or impliedly agrees to assume the debts and liabilities; (2) when the transaction amounts to a consolidation or merger; (3) when the purchaser is merely a continuation of the seller; and (4) when the transaction is entered into fraudulently to escape liability for the debts and liabilities." But purchase must be of all or substantially all assets.
Forrest Edwards d/b/a Strike Team Media, Appellant, vs. Black Twig Marketing and Communications LLC d/b/a Black Twig Communications, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99581
Criminal Warrant was not Stale
Statutes require execution of warrant within 10 days of application. Warrant stated that it was executed on July 1 but issued on June 1. Circuit court resolves challenge to timeliness of warrant by reference to all relevant documents including application and supporting affidavit. Those documents show that warrant executed on July 3 was issued on July 1, not June 1, as erroneously recited on warrant. Remanded to note appellant's status as a prior drug offender.
STATE OF MISSOURI, Plaintiff-Respondent, vs. DONALD RAY SPRADLING, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD32393 Identity Shown
Testimony of child victim misstating defendant's last name during one colloquy does not negate other evidence identifying appellant as person who committed offense. Evidence of prior false allegations is relevant to witness's credibility but defendant has the burden of proving admissibility, and showing that no prosecution occurred does not show that allegation is false.
STATE OF MISSOURI, Plaintiff-Respondent, vs. STEVEN RAY ABBOTT, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD31916
Family No Prejudice in Property Division
Statutes allow an award of maintenance, on proof that the claimant lacks sufficient property to meet her reasonable needs and cannot support herself through reasonable employment, but appellant did not prove either of those grounds. Employee retirement plan earned in part before marriage was not vested until after marriage and, assuming that classification was error, it was not prejudicial because wife received it all and property division did not unduly favor one party.
Christopher M. Shaw vs. Tara Lynn Shaw
(Overview Summary)
Missouri Court of Appeals, Western District - WD75843
Local Government Red Light Camera Ordinance Void
Circuit court did not err in dismissing plaintiffs' challenges to remedies they did not pursue. Multiplicity of actions does not negate remedy at law when only one party may bring such actions. Plaintiffs who paid fine assessed under ordinance have standing to challenge ordinance's validity, except as to constitutional issues waived or estopped by failure to raise, though notified of opportunity for hearing. But payment of fine bars claims for unjust enrichment and money had and received under voluntary payment doctrine. Ordinance is within city's police powers to make additional regulations of public safety. But ordinance is void for conflict with State law, in that it provides strict liability for owner of vehicle that runs a red light, and redefines moving violation as non-moving violation.
Molly Edwards, et al., Appellants, vs. City of Ellisville, and American Traffic Solutions, Inc., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99389
Orders of Protection Fear of Physical Harm Required
Circuit court did not err in denying motion for continuance. Statutes set forth elements of stalking. Those elements include a pattern of conduct that serves no legitimate conduct, but appellant's conduct consisted of visits to children's sporting events and attempts to exercise visitation rights. Elements also include "alarm," which requires evidence that petitioner has "fear of danger of physical harm." Evidence may include physical altercation or threat but respondent offered evidence only of feeling unsafe and concern.
D.A.T., Respondent, vs. M.A.T., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99352No Repeated Conduct Shown
For persons who are not family members, Adult Abuse Act offers relief on proof of stalking, the elements of which include conduct that is repeated and unwanted. Respondent showed two events: one that was unwanted and another initiated by respondent. Remanded to vacate judgment.
TIMOTHY FOWLER, Petitioner/Respondent, vs. JERRY MINEHART, Respondent/Appellant.
Missouri Court of Appeals, Southern District - SD32644
Post-ConvictionBrady Violations Undermined Verdict
Defense is entitled to disclosure of matters that are exculpatory, or inculpatory with impeachment value to defense, in State's possession. If cumulative effect of undisclosed evidence, and other evidence to which it might have led, undermines confidence in the verdict, the result is a Brady claim. Brady claim is subject to direct appeal and post-conviction motions, so failure to raise Brady claim results in procedural default. Procedurally defaulted constitutionally matter is subject to habeas corpus relief if it is the result of a cause external to the defense and prejudiced movant. From circuit court judgment on petition of habeas corpus, State's remedy is a petition for writ of certiorari, on which Court of Appeals reviews circuit court's judgment; while movant's remedy is another petition in Court of Appeals, which is an original action. Interviews not recorded, and therefore not disclosed, had exculpatory value for impeachment of one crucial but recanting State witness, and as a lead to further exculpatory evidence, and as cumulative weight with pattern of other similar nondisclosure. State's intent is irrelevant and defense has no duty to find Brady material. Considering, too, vagaries of State's other crucial but recanting witness, habeas corpus relief granted. Movant ordered discharged from custody unless State re-files new charges in 15 days.
In re: Ryan Ferguson vs. Dave Dormire, Superintendent, Jefferson City Correctional Center
(Overview Summary)
Missouri Court of Appeals, Western District - WD76058
Real Estate Parol Evidence Resolves Ambiguity
Contract provided a lease term of January 1 through December 31, and cash rent payable on April 1, but was executed on May 3. Ambiguous contract is subject to construction including parol evidence. "The parol evidence rule does not prevent the admission of relevant evidence, but rather prohibits the trier of fact from using such evidence to contradict, vary, or alter the terms of an integrated written contract."
Central Stone Company, Plaintiff/Respondent, vs. Daniel Warning, Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99480
Workers' Compensation Date of Injury Determines Dependent Status
Court of Appeals does not decide matters "that could have been, but were not, raised previously before the [Labor and Industrial Relations] Commission [.]" Point relied on can have only one basis for reversal. Court of Appeals does not weigh evidence. At time of injury, when claimant died of causes unrelated to claim, statutes substituted claimant's dependents for claimant, and date of injury determined claimant's dependents' status.
Missouri Court of Appeals, Southern District - SD31907

Updates in Missouri Law from the week


Stealing by Deceit Shown
Writing one bad check does not prove stealing by deceit because statute defining stealing by deceit provides that failure to perform promise, alone, does not raise inference of deceit. But totality of the circumstances can raise such an inference. Writing many bad checks well over the available balance, and explaining that conduct with multiple inconsistent narratives, raises an inference of deceit.
State of Missouri vs. Nicholas Roger Holbruck
(Overview Summary)
Missouri Court of Appeals, Western District - WD75037

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