Motion In Limine Did Not Preserve Error
Motion in limine did not preserve any point for review; an objection was necessary when the evidence was offered. Cumulative error, not objected to, and not included in motion for new trial, was not preserved. "[T]o consider plain error in the context of cumulative error, where the individual claimed errors were not brought to the trial court's attention by proper objection, would essentially require us to find that the trial court had an obligation to sua sponte take a much more active role in trying the entire case than [Appellant] herself took or otherwise deemed appropriate during trial." Plaintiff may ask venire whether they have any interests in Insurer.
Laura L. Roberson, Plaintiff-Respondent, v. Linda D. Coker Weston, Defendant-Appellant. Missouri Court of Appeals Southern District
Record Required For Review
Appellant's statement of facts was argumentative and referred to evidence at trial, but Appellant filed no transcript of trial. Court of Appeals must not reconstruct the record from a brief. "[W]e cannot competently rule on the merits of [the appellant's] argument without first reconstructing the facts that gave rise to the circuit court's finding and then refining and supplementing [her] points and legal argument." Dismissed.
Gerald D. Powell, Plaintiff, v. Valeria Jo Powell, Appellant, Roger V. Baker, Respondent, Missouri Department of Social Services, Defendant. Missouri Court of Appeals Western District
Ruling Stands Unless All Alternative Grounds Challenged
Circuit Court articulated three grounds for ruling that Appellant was behind in child support, any one of which could support such ruling. Appellant challenged only
two. Appellant "therefore, has failed to carry his burden on appeal. This reason alone is a sufficient basis for denying [Appellant]'s point." Circuit Court erred in imputing Appellant's entire potential earnings as if he were earning none of it.
Anne Sieg, Respondent, v. Dennis Sieg, Appellant. Missouri Court of Appeals Western District
Fraudulent Concealment Is An Affirmative Avoidance
Plaintiffs pleaded a wrongful act, but not fraud. Defendant alleged statute of limitations as defense. Plaintiffs did not reply with any pleading setting out fraudulent concealment with particularity as rule requires for affirmative avoidances, so no genuine issue existed as to that theory. Summary judgment affirmed.
Terry Keehn and Timothy Keehn, Plaintiffs/Appellants, v. Ruzicka Electric & Sons, Inc., Defendant/Respondent. Missouri Court of Appeals Eastern District
Tribal Government Has Sovereign Immunity
Under federal law, Tribal Government has sovereign immunity that extends beyond government activities and beyond tribal lands. Tribal Corporation's waiver of sovereign immunity makes no difference because Plaintiff did not sue it and its waiver does not affect Tribal government.
Larry Ogden, Appellant v. Iowa Tribe of Kansas and Nebraska, Respondent. Missouri Court of Appeals Western District
New Trial Required for Prejudicial Error
On charges of second degree murder and armed criminal action, Defendant argued defense of self and premises. State introduced evidence of, and referred in closing argument to, Defendant's alcohol consumption. But State offered, and jury was given, voluntary intoxication instruction. Giving such instruction was error because State offered no evidence, and Defendant raised no defense, of intoxication. Error was prejudicial because it could have led the jury to reject Defendant's defenses.
State of Missouri, Plaintiff-Respondent, v. Jamie Avery, Defendant-Appellant. Missouri Court of Appeals Southern District
No Double Jeopardy When Facts Timely Found
Judge stated that he found guilt on a lesser included offense, but also announced findings of fact that support a greater offense, so Judge did not acquit on the greater offense. Sentencing on greater crime required no additional fact finding. No double jeopardy occurred on sentencing for greater crime.
State of Missouri, Respondent, v. Ervin L. Glasgow, Appellant. Missouri Court of Appeals Western District
Participation, Not Planning, Required For Accomplice Liability
Defendant alleges that he planned one crime with co-defendant, but not another crime co-defendant eventually committed. But record showed that he aided co-defendant in other crime. Defendant was guilty under accomplice liability.
State of Missouri, Plaintiff/Respondent v. Jaime E. Molina, Defendant/Appellant. Missouri Court of Appeals Southern District
Use of Deadly Weapon Not Shown
Verdict director required use of a deadly weapon for conviction. "Deadly weapons are an enumerated set of objects." That set included only one that could have been used to cause Victim's puncture wounds—a dagger. But such facts do not raise an inference that the weapon was a dagger. "[Defendant]'s use of a weapon to stab [Victim] does not make the unidentified weapon a dagger. While a dagger may be used to stab, the use of an item to stab does not make the item a dagger." Conviction for second-degree assault remanded to Circuit Court for judgment and sentence for third-degree assault.
State of Missouri, Respondent v. Donald L. Payne, Appellant. Missouri Court of Appeals Western District
Application For Review Was One Day Late
Application for review, untimely by a single day, vested no jurisdiction in Labor and Industrial Relations Commission and none in Court of Appeals.
Willie Pearson, Claimant/Appellant, v. Boxes of St. Louis, Inc., and Division of Employment Security, Respondents. Missouri Court of Appeals Eastern District
Late Application For Review Dismissed
Application for review filed late with Labor and Industrial Relations Commission vests no jurisdiction in Commission or in Court of Appeals.
Lisa Lewis, Claimant/Appellant, v. St. Charles County Finance Department and Division of Employment Security, Respondents. Missouri Court of Appeals Eastern District
No Jurisdiction To Review Record
Claimant's appeal from deputy to appeals tribunal was late, so Labor and Industrial Relations Commission dismissed. At Court of Appeals, Claimant seeks review of deputy's decision, but Court of Appeals has no jurisdiction to do so because Commission did not reach that issue. Dismissed.
Jacquelyn Russell, Appellant v. LM Services Corporation and Division of Employment Security, Respondents. Missouri Court of Appeals Eastern District
Bad Acts Inadmissible
Instructions required a finding that Defendant threw urine or feces at guards. Evidence of allegations similar to those charged was inadmissible as prior bad acts. Defendant's knowledge or intent was not at issue. Identity of Defendant was not at issue, and throwing things was not distinctive, so modus operandi exception did not apply. For common scheme or plan exception, charged act must relate to a general criminal enterprise other than committing more of the same act. Propensity evidence prejudiced defendant because it was almost the only evidence of what defendant threw. Remanded for a new trial.
State of Missouri, Respondent v. Perry Frezzell, Appellant. Missouri Court of Appeals Eastern District
City Had Unclean Hands In Suit On Sewage Contract
City agreed to treat sewage from neighbors' sewers if they agreed to comply with City ordinances "now in effect or hereafter enacted and any amendments thereto." City's new ordinance added expensive obligations, not originally contemplated, which City did not undertake with its own sewers, and without rational basis. Such evidence shows that City did not "exercise the discretion in good faith and in accordance with fair dealing." "Generally, a court of equity will not assist a plaintiff who comes to court with unclean hands. [A]lack of good faith in bringing the suit is sufficient to deny the party equitable relief."
City of St. Joseph, Missouri, Appellant, v. Lake Contrary Sewer District, Respondent, Village of Country Club, Respondent. Missouri Court of Appeals Western District
Evidence Of No Complaints Was Admissible
Plaintiffs claimed that physical condition of property was dangerous. They offered evidence that the condition was the subject of a complaint before Plaintiff's injury. Defendant's evidence, that no one had complained, was admissible in rebuttal because Defendants laid proper foundation, including "an adequate number of those situations occurred to make the absence of accidents meaningful."
Stephanie Heitman and Ronald Heitman, Appellants, v. Heartland Regional Medical Center, Respondent. Missouri Court of Appeals Western District
No Allegation Of Abandonment, No Jurisdiction To Re-Open
Record shows that counsel filed amended motion and represented Movant through hearing. Failure to advance all possible claims in amended motion does not constitute abandonment. It constitutes, at most, ineffective assistance of counsel, which is not reviewable. Circuit Court's dismissal for lack of jurisdiction affirmed.
Frederick Spencer, Movant/Appellant, v. State of Missouri, Respondent. Missouri Court of Appeals Eastern District
Affirmative Covenant Enforced
Affirmative Covenant required not-for-profit homeowners' Corporation to remit maintenance payments for use and enjoyment of lake. It did not allow Corporation to cease payments on repudiation of use and enjoyment of lake.
Kehrs Mill Trails Associates, Plaintiff/Respondent, v. Kingspointe Homeowner's Association, Defendant/Third Party Plaintiff/Appellant, v. City of Clarkson Valley, Missouri, Third Party Defendant. Missouri Court of Appeals Eastern District
Covenant Not Falsely Represented
After Plaintiffs bought land for a project, they heard that a restrictive covenant barred the project. They sued for fraud and negligent misrepresentation. But covenants had never been amended as required to impose the restriction, so Circuit Court's summary determination in Defendant's favor is affirmed.
Troy Harris and Libby Harris, Plaintiffs-Appellants, v. Jon E. Smith and Teresa J. Smith, and Dennis Thompson, and H.J.C. Enterprises, L.C., d/b/a Murney Associates, Realtors, Defendants-Respondents. Missouri Court of Appeals Southern District
Easement Not Shown
Clear and convincing evidence needed to support Plaintiff's claim of a prescriptive easement to run a water facility was not present because she did not operate the facility for the required ten years. She could not tack on previous operators' tenure, and could not show an express easement, because she had no documentation showing a transfer of any interest to her or her predecessor.
Donna Almond, d/b/a Rockwood Community Well, Respondent v. Steve v. Bell, Sr. Trust, Jewell v. Bell Trust, Steve Bell and Jewell Bell, Appellants. Missouri Court of Appeals Southern District
Expert Testimony On Damages Was Admissible
In partial condemnation case, Expert calculated damages by valuing it as a rental property and comparing rents of similar properties, but also accounted for the risk of rental properties and unique problems of remaining land. Circuit Court did not err in admitting such testimony subject to cross-examination. "The differing considerations and the appropriate weight afforded them must be adapted to the particular facts of the case."
St. Louis County, Missouri, Appellant, v. Meyer Properties, LLC, Respondent. Missouri Court of Appeals Eastern District
Manufactured House Built Despite Covenants
Covenants deemed plans approved unless denied in writing 30 days after delivery. Plans delivered to Committee member were the subject of no Committee decision. Nothing required plans to be in the format of a blueprint.
Henry Strobl, Frank Sullivan, and Mary Armbruster, Plaintiffs-Appellants, v. Robert Lane and Carole Lane, Defendants-Respondents. Missouri Court of Appeals Southern District
No Condemnation Action Based On Approval Of Plat
Plaintiffs bought a lot in subdivision and sued City based on drainage. Sovereign immunity bars action for negligence. Action for condemnation cannot stand on City's failure to require better drainage when approving subdivision plat. Supreme Court may issue writ of prohibition to prevent "unnecessary, inconvenient and expensive litigation" when Circuit Court denies summary judgment.
State ex rel. City of Blue Springs, Missouri, Relator v. The Honorable W. Stephen Nixon, Respondent. Supreme Court of Missouri
Bowling Association Has Civic Purpose
Bowling Association's activities benefit its members, but its membership is open to all, so it is a sales tax-exempt civic organization.
Missouri State USBC Association, Appellant v. Director of Revenue, Respondent. Supreme Court of Missouri
Injury During Break Is Covered
Workers could not leave workplace during paid break, but could play basketball in court on premises. Such activity was reasonably incidental to work because it promoted punctual return to work and increased worker morale. Statutory amendment allows compensation if worker was “paid . . . while participating in such recreational activity[.]”
Timothy Miles, Claimant/Respondent, v. Lear Corporation, Employer/Appellant, and Zurich North America Insurance Company, Insurer/Appellant. Missouri Court of Appeals Eastern District
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