Administrative

Licensing Terms Discussed
Unprofessional conduct is a conclusion based on expert testimony, and includes violations of a professional standard of care.  Statutory definition of repeated negligence is clear and unambiguous.  Statute allowing discipline for conduct that "is or might be harmful" refers to unreasonable risks.  "Incompetency," as this Court has said, is "a state of being" which repeated negligence does not necessarily prove, and which a "record of successful surgeries in extremely difficult and complex cases" refutes.  Remanded to licensing agency for reconsideration of discipline without incompetence.
Faisal J. Albanna, M.D., Respondent v. State Board of Registration for the Healing Arts, Appellant
(Overview/Summary)
Supreme Court - SC89809

Appellate

Over-Write Does Not Finalize Judgment
Circuit Court struck out “memorandum,” wrote in “judgment” and initialed it.  But such amendments do not constitute issuance of a new judgment because no new clerk’s file stamp is present and nothing shows service on all parties.  Dismissed. 
Velocity Investments, LLC, Appellant, v. Robert Korando, Respondent
(Overview/Summary)
Court of Appeals, Eastern District - ED92390

Civil

Juror Non-Disclosure Presumed Intentional
Counsel’s question to venire was clear, “Now not including family law, has anyone ever been a plaintiff or a defendant in a lawsuit before?” Circumstances of juror’s litigation history show that nondisclosure was intentional and presumptively shows bias.  Nothing showed that counsel could practicably have raised such facts earlier. 
Phil Johnson vs. J. Edward McCullough, M.D. and Mid-America Gastro-Intestinal Consultants, P.C.
(Overview/Summary)
Court of Appeals, Western District - WD69772

Commercial

Financing Statement Trumps Title
Appellant floor-planned debtor by giving possession of cars but retaining their titles.  Such an arrangement constituted a security interest subject to perfection.  "The purpose of [Uniform Commercial Code provisions] is to protect general creditors of the consignee from claims of consignors that have undisclosed consignment arrangements with the consignee that create secret liens on the inventory." Respondent perfected its security interest in all debtor’s inventory.  Respondent’s interest was superior to Appellant’s. 
Excel Bank vs. National Bank of Kansas City, d/b/a Great American Acceptance Company
(Overview/Summary)
Court of Appeals, Western District - WD69701

Criminal

No Confrontation Clause Problem With Autopsy Report
No review for improperly briefed points and Defendant’s sustained objections.  No appeal from denial of Defendant’s strikes as to venire persons who did not sit on jury.  Matters outside record may support race-neutral grounds for peremptory strike of venire person.  Cumulative and undisputed evidence from autopsy report was no violation of Constitution’s Confrontation Clause.  Witness’s testimony about over-heard conversation was not admissible under the due process exception to the hearsay rule.  Presence at time of the killing “is not an element of murder in the first degree” and, if it were, evidence supported such a finding. 
STATE OF MISSOURI, Plaintiff-Respondent vs. LUTHER DWAYNE MARTIN, Defendant-Appellant
Court of Appeals, Southern District - SD28109

Refusal Of Breath Test Admissible Outside DWI
Statute governing use of breath test does not apply outside of DWI charges, so evidence of refusal was admissible on charge of possessing a firearm while drunk.  Evidence of refusal does not violate Fifth Amendment right to silence.  Experienced officers’ opinion that Defendant was intoxicated was enough to support a jury issue.  Closing argument describing Defendant as “dangerous” and a “vigilante” did not require mistrial after sustained objection and caution to jury. 
State of Missouri, Respondent, v. Stephen J. Dvorak, Appellant
(Overview/Summary)
Court of Appeals, Eastern District - ED91727

Writ Requires Evidence
Higher court reviews issuance of writ of habeas corpus by writ of certiorari.  On such review, record did not support Defendant’s allegations.  “Because the record shows a facially valid confinement, habeas corpus relief was not available.” 
State of Missouri, ex rel., Chris Koster vs. The Honorable Robert Koffman, Circuit Judge of Cooper County, and Jamey Brandes, Circuit Clerk, Cooper County Circuit Court
(Overview/Summary)
Court of Appeals, Western District - WD70688

DWI

Aggravated Offender Status Not Shown
Procedure for post-conviction relief does not bar appeal of sentence after less than all elements of charge, including aggravated offender status.  To prove aggravated offender status, facially valid records of convictions are sufficient. Such record does not include a document that is “blank in the space to mark whether [Appellant] pleaded not guilty or guilty and blank in the space to mark whether [Appellant] was found not guilty or guilty.”  Remanded for re-sentencing. 
State of Missouri, Respondent v. Michael G. Craig, Appellant
(Overview/Summary)
Supreme Court - SC89867

Certification, Not Notarization, Supports Exhibits
Objection to blood alcohol analysis based on the absence of breath analyzer maintenance report, and objection to maintenance report for lack of authentication, preserved objections to both exhibits based on maintenance report’s lack of notarization.  Notarization is not required under statute providing that copies of documents filed with Director are admissible if certified.  Therefore, both exhibits were admissible. 
Michael P. Connelly, Jr., Appellant, v. Director of Revenue, State of Missouri, Respondent
(Overview/Summary)
Court of Appeals, Eastern District - ED92088

Employment

Human Rights Act Claim Timely
A claim for “constructive discharge is a fact-intensive inquiry.” Circuit court did not require adherence to rule on contents of motion for summary judgment, allowed Movant to raise new theory in reply, and barred response to new theory.  Summary judgment reversed.
Ellen Wallingsford, Appellant v. City of Maplewood, Respondent
(Overview/Summary)
Supreme Court - SC89862

Whistleblower Case Transferred
Genuine issues remained as to whether claimant Employee reported violations of law, and whether such violations were the exclusive cause for firing him, so defending Employer negated no element of Employee’s claim.  Circuit court erred in granting summary judgment to Employer.  Transferred to Missouri Supreme Court.
Daniel Margiotta, Appellant, v. Christian Hospital Northeast Northwest d/b/a Christian Hospital and BJC Health System, Respondents
(Overview/Summary)
Court of Appeals, Eastern District - ED91466

Family

No Clear And Convincing Evidence Of Abuse
Evidence that children feared stepfather, who spanked them with a belt, was not clear and convincing evidence of abuse, without evidence of harm.  Evidence of mental conditions, including explosive anger disorder, was not grounds for judgment because State did not give notice of such grounds. 
In the Interest of: M.N.J. and N.M.D.A.; Juvenile Officer vs. M.G. and C.G. (Mother)
(Overview/Summary)
Court of Appeals, Western District - WD70056 and WD70057

QDRO Must Conform To Judgment
Circuit Court issued dissolution decree with property division according to settlement, but issued qualified domestic relations order (QDRO) varying from both over six years later, and an order even later interpreting the dissolution agreement nunc pro tunc.  Nunc pro tunc order cannot re-write decree and QDRO must conform to decree. 
Stephen J. Wilson vs. Cathy Jo (Wilson) Lilleston
(Overview/Summary)
Court of Appeals, Western District - WD69788

Insurance

Underinsured Motorist Provisions Discussed
Uunderinsured motorist coverage only applies when Insureds have otherwise collected some of their damages “—that is why the insured is seeking to collect underinsured rather than uninsured motorist coverage.”  Insurer cannot deduct otherwise collected damages from uncollected damages because that would allow the same deduction twice.  “Such a construction . . . is, at best, in conflict with the clear intent of subsections (a) and (b), and is, at worst, misleading.”
Morris Jones and Pamela Brown, Appellants/Cross-Respondents v. Mid-Century Insurance Co., Respondent/Cross-Appellant
(Overview/Summary)
Supreme Court - SC89844

Real Property

Punitive Damages Possible For Unreasonable Use Of Surface Water
Evidence supported claim for violation of reasonable use rule.  Such violation consists of land’s use, not participation in constructing nuisance, so such participation is not an element of liability.  Circuit court did not err in admitting evidence of damage to Plaintiff’s property value.  Circumstantial evidence of evil intent was enough to submit punitive damages claim to jury.
Tim Atkinson vs. Greg Corson, Lisa Corson
(Overview/Summary)
Court of Appeals, Western District - WD69035 and WD69080

Workers' Compensation

New Definition Of Injury Discussed
Statutory amendments define injuries that arise out of and in the course of employment to exclude “a triggering or precipitating factor” or “merely a substantial factor” and an event “to which workers would have been equally exposed outside of and unrelated to the employment in normal nonemployment life[;]” and to require that an event be “[t]he prevailing factor[,]” meaning “the primary factor” in a disability. Such provisions exclude injury from merely walking at work.
Mitchell Miller, Appellant v. Missouri Highway and Transportation Commission, Respondent
(Overview/Summary)
Supreme Court - SC89960