Administrative
Hearing Officer Procedure Okay
Agency’s statutory authority to “[a]dopt rules and regulations not inconsistent herewith governing the conduct of [the] department” included setting residency requirement. Appellant’s written waiver of right to a hearing before agency, rather than hearing officer, was effective. Findings of fact were adequate because they covered controlling issues. On de novo review, agency need not defer to hearing officer’s recommendation
Robert T. Vivona vs. Karl Zorbrist, et al.
(Overview Summary)
Missouri Court of Appeals, Western District - WD69244
Criminal
Prior Inconsistent Statement Admissible
Statute provides that prior inconsistent statement is admissible as substantive evidence. Repudiation of statement does not make such statement inadmissible. State’s hearsay evidence did not prejudice defendant because it was similar to his own hearsay evidence. Record shows that circuit court intended to sentence defendant according to jury’s recommendation on both counts, but entered sentence for each count on the other count.
STATE OF MISSOURI, Plaintiff-Respondent vs. RICHARD R. PLACKE, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD29207
No Lesser Included Offense Instruction Required
Circuit court need submit lesser included offense to jury only if acquittal on greater charge is a reasonable possibility. No such possibility exists as to kidnapping when defendant’s description of his own conduct satisfied each element of that charge.
Failure to seek instruction on false imprisonment therefore did not show that trial counsel was ineffective.
LAWRENCE ARNOLD, Movant-Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD29276
Circumstantial Evidence Supports Conviction
On review of conviction, Court of Appeals gives same weight to direct evidence and circumstantial evidence. Circumstantial evidence showing unexplained—meaning rejection of defendant’s explanation—defendant’s recent possession of stolen items, which supported convictions for burglary and theft.
STATE OF MISSOURI, Respondent vs. MICHAEL CAPRARO, Appellant
Missouri Court of Appeals, Southern District - SD29472
Disjunctive Instruction Discussed
On State’s objectionable inquiry, circuit court need not intervene sua sponte “when the totality of the surrounding circumstances” show that defense counsel may have a strategic reason for refraining from objection. Instruction’s use of proof elements in the disjunctive is plain error because it threatens the right to a unanimous verdict by allowing jurors to convict on differing facts. But such instruction does not constitute structural error requiring automatic reversal. Defendant must show manifest injustice.
State of Missouri vs. D.W.N.
(Overview Summary)
Missouri Court of Appeals, Western District - WD69142
Employment
Many Theories, One Recovery
Plaintiff may seek damages under Trade Secrets Act, Computer Tampering Act, and breach of contract theories for each injury, but each injury supports only one award. Liquidated damages under contract trump actual damages for same injury. Assessment of damages under liquidated damages clause began with harm, not breach, and ended with restraining order. Contract providing attorney fees required circuit court to make such an award, but the amount is within the circuit court’s discretion. Judgment cannot enforce non-compete agreement longer than contract provided.
MIHLFELD & ASSOCIATES, INC., and GLOBAL TRANSPORTATION SYSTEMS, INC., Plaintiffs/Appellants/Respondents vs. BISHOP & BISHOP, L.L.C., BISHOP ENTERPRISES, and WILLIAM BISHOP, Defendants/Respondents, and MICHAEL ROOTES, Defendant/Respondent/Cross-Appellant
Missouri Court of Appeals, Southern District - SD28885 and SD29622
Employment Security
Pregnancy Good Cause For Quitting
Non-work-related condition does not necessarily disqualify claimant. Court of Appeals may conclude claimant’s qualification for benefits on Commission’s findings of fact. Such facts showed claimant’s pregnancy-related back problems, and no scientific evidence is needed to show that sitting worsened them. Denial of benefits reversed.
Christine Hernandez, Appellant, v. Staffing Solutions, Inc., and Division of Employment Security, Respondents
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92154
Family
Property Division Accounts For Squandering
In assessing factors influencing property division, circuit court did not err in favoring wife’s evidence over husband’s unsubstantiated allegations about property ownership. “A court may order reimbursement of marital assets it determines a spouse has squandered in anticipation of dissolution of the party’s marriage.” Wife need not suffer tax penalties attendant on liquidating property awarded before being eligible for maintenance.
RONDA KIM SPINABELLA, Respondent vs. MARK ETHAN SPINABELLA, Appellant
Missouri Court of Appeals, Southern District - SD29160
Insurance
No Retroactive Coverage
Professional services exclusion was in effect when injury occurred allegedly from professional services. Later professional services endorsement was not retroactive despite heading because endorsement provided that coverage was prospective only. Injury, not policy, gives rise to coverage.
CARLA HENSLEE, Appellant vs. CAMERON MUTUAL INSURANCE COMPANY, Respondent
Missouri Court of Appeals, Southern District - SD29683
Wrong Intervenor Requires Remand
Appellant’s subsidiary was decedent’s workers compensation insurer, and thus a necessary party to subrogation action, but Appellant intervened instead of subsidiary. Remanded to vacate judgment and join necessary party.
Kris Komsky, et al., Respondents, v. Union Pacific Railroad Company, et.al., Respondents, v. AIG Life Insurance Company, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED91425
No Coverage For Knowing Conduct
Insurer has no duty to defend if there is no possibility of coverage. Coverage for professional and advertising services excluded conduct done knowingly, which was the only allegation in petition. On such petition, insurer therefore had no duty to defend.
Custom Hardware Engineering & Consulting, Inc., and David York, Appellants, v. Assurance Company of America, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED91441
Personal Injury
Prosecutor Absolutely Immune
“[A] prosecutor’s common-law immunity from civil liability for initiating and pursuing a criminal case . . . is considered both absolute and ‘well settled.’”
RICHARD A. CARDEN, Appellant vs. COURTNEY M. GEORGE, Respondent
Missouri Court of Appeals, Southern District - SD29623
Post-Conviction
Prejudice Presumed From Biased Juror
Venire person was silent as to some inquiries, but later said that he could not be fair and was not rehabilitated. No sound strategic reason supported trial counsel’s failure to strike. Venire person served on jury. Prejudice is presumed. New trial required.
Sonny J. White, Appellant, v. State of Missouri, Respondent
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92081
Impeachment No Match For DNA
Trial counsel’s decision to impeach victim only so much did not prejudice movant because DNA evidence showed that “[m]ovant (who did not testify) was the only man in world history who could have been responsible” for the crime charged.
JERRY KEIGHTLEY, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD92405
Real Estate
Bona Fide Purchaser Prevails
In condemnation action, statute provides jury trial for damages only, not for allocation. Record supports finding that purchasers had no knowledge of unrecorded deeds for trust in escrow, nor of pending actions to quiet title, nor of facts raising a duty to investigate.
CITY OF BRANSON, MISSOURI, Plaintiff/Respondent vs. BRANSON HILLS MASTER ASSOCIATION, INC., and GRANT GENERAL CONTRACTORS, INC., Defendants/Co-Respondents, and JISTA, INC., Defendant/Appellant
Missouri Court of Appeals, Southern District - SD29577
Quarry Traffic Was Public Nuisance
One or two “dump trucks carrying 28 tons or semi-trailer trucks carrying 42 tons” on narrow roads could constitute a public nuisance, by damaging road and interfering with business and residential property, and support punitive damages award. Evidence that quarry hired trucking firm showed agency relationship. Judgment on such claim supported damages award, so Court of Appeals need not review judgment on accompanying negligence claim. Tort claims were not a compulsory counterclaim to earlier federal challenge to ordinance because claims lack logical relation. Missouri constitution and statutes allow city to regulate truck traffic by ordinance. Statute provided calculation of interest rate for pre-judgment interest.
City of Greenwood, Missouri vs. Martin Marietta Materials, Inc. and Hunt Martin Materials
(Overview Summary)
Missouri Court of Appeals, Western District - WD69690 and WD69787
