Administrative

Notice Of Charges Okay
Supplemental notice was sufficient to apprise employee of grounds for discipline, and alleged deficiencies did not prejudice employee.  Statute permitting self-defense does not apply to city’s employee code.  Competent and substantial evidence in the record supports discipline.  Agency decision affirmed.
David Patrick, Appellant, v. City of Jennings, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - WD92500

ADR

Arbitration Agreement Covers Unlicensed Practice Of Law
Federal Arbitration Act requires enforcement of valid arbitration agreement.  Arbitration agreement’s scope included disputes regarding car sale.  Legal documents related to such purchase are within that scope, so action for damages, based on car seller’s charge for preparing such documents, was subject to arbitration.  Such arbitration is subject to bar under statutes or case law. Evidence of industry custom does not show that arbitration agreement constituted a contract of adhesion.  Waiver of class actions was not substantively unconscionable. 
Ashlee Ruhl, on Behalf of Herself and All Others Similarly Situated vs. Lee's Summit Honda
(Overview Summary)
Missouri Court of Appeals, Western District - WD70189

Civil

Motion For Extension Of Time Prevents Default
In response to father’s motion to terminate child support, mother filed a request pro se for more time to respond to the motion.   Even without service on father, such request constituted a defense to the motion that barred the entry of a default judgment, so circuit court did not err in setting aside its improvidently entered default judgment.  Rule on setting aside a default judgment, requiring good cause, does not apply.  Rule on motions does not require striking motion that omits telephone number. “Our distaste for default judgments is even stronger in dissolution cases involving child custody issues.”
Deborah J. Beeman vs. Patrick D. Beeman
(Overview Summary)
Missouri Court of Appeals, Western District - WD70558

Remittitur Reversed
Omission of matter from interrogatory did not prejudice party with actual knowledge of such matter.  Testimony to a reasonable degree of medical certainty, that continued treatment was necessary, was admissible.  Statute allows remittitur only when evidence, viewed in a light most favorable to the verdict, does not support damage award.  Under that standard, circuit court erred in remitting award. 
Lauren N. Wiley vs. Ryland R. Homfeld
(Overview Summary)
Missouri Court of Appeals, Western District - WD69560 and WD69599

Don’t Display Criminal Statute
Plaintiff’s testimony on where “by law in most states where you are suppose[d] to come to a legal stop” did not invite error of defendant misquoting and displaying criminal statute on driver’s duty, thus “silently injecting into the case a shifting of the standard of Decedent’s comparative fault to negligence per se.” Record shows that jury considered such statute.
Carol Eckelkamp, Conservator of the Estates of Mitchell Heimann and Melanie Heimann and Denise Heimann, Individually, and Louis Heimann and Mary Heimann, Appellants, v. Burlington Northern Santa Fe Railway Company, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92018

Consumer

Arbitration Compelled In Merchandising Practices Action
Statute invalidates arbitration agreement if it is a contract of adhesion, but a contract of adhesion is more than a pre-printed form.  Buyers did not show that their arbitration clause was a contract of adhesion because “they did not present any evidence regarding the negotiability of the contract[,]” and other sellers’ practices.  They also did not show that the clause was unconscionable because they did not show that the clause deprived them of meaningful remedies.  Circuit court should have stayed suit for damages under Missouri merchandising practices and compelled the matter to arbitration.
Jerry Grossman, et ux. vs. Thoroughbred Ford, Inc.
(Overview Summary)
Missouri Court of Appeals, Western District - WD69906

DWI

Limited Privileges Prohibited
Statute bars limited privileges if motor vehicle is used in felony for which driver is convicted.  Driver had felony dwi, so circuit court had no authority to grant him a limited privilege.  Court of Appeals issues writ of prohibition against circuit court. 
State Ex Rel. Director of Revenue, State of Missouri, Relator, v. The Honorable Troy K. Hyde, Judge of the Circuit Court of Wshington County, Missouri, 24th Judicial Circuit, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED93679

Arrest Made
Conduct constituted reasonable grounds to believe that driver was dwi, and alternative explanations for such conduct do not negate such reasonable grounds.  For an injured driver, officer need not physically seize driver to effectuate an arrest, because officer’s issuance of revocation notice or driver’s acknowledgment of officer’s authority constitute arrest.
ROBERT EDWARDS, Appellant vs. DIRECTOR OF REVENUE, STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD29451

Evidence

Suppression and New Trial Required
When investigation of traffic violation was over, officer had no “specific, articulable facts creating an objectively reasonable suspicion” of criminal activity, so it did not support search.  Subsequent interaction was not consensual, so circuit court must suppress evidence resulting from search during illegal detention.  Remanded for new trial. 
STATE OF MISSOURI, Plaintiff-Respondent vs. RICHARD D. VOGLER, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD29492

Post-Conviction

Evidence Needed
Appellate counsel’s decisions are presumed strategically based.  Circuit court did not err in denying motion without evidence about the quality of appellate counsel’s assistance.  Circuit court may deem such theory abandoned.  Record shows defendant’s waiver of jury trial was knowing, voluntary and intelligent. 
JAMES A. TOTEN, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD29598

Mental Evaluation Unnecessary To Valid Plea Bargain
Result of mental examination did not negate guilt, so failing to use it in plea bargaining did not make Movant’s guilty plea involuntary, and did not prejudice Movant.  Such issues relate to counsel’s effectiveness. 
Thomas C. Herriford vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD69707

Probate

 Circuit Court Is Not Co-Guardian
Statute requires circuit court to supervise, but defer to, guardian and conservator.  Evidence supported circuit court’s judgment as to disability, incapacity, least restrictive environment, and voting rights.  Improvements in ward’s condition showed that guardian and conservator was acting in ward’s best interests.   
In Re the Estate of: Wilbur Jack Posey, Incapacitated and Disabled, Appellant, v. Julia Posey Bergin, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED91483

Real Estate

Fraudulent Misrepresentation Pleaded, Negated
Documents not before circuit court are not before Court of Appeals.  Privity of contract is not an element of fraudulent misrepresentation, and petition pled facts implying third party's agency, so petition pleading misrepresentation by third party can also plead fraud.  Duty of disclosure applies only to superior knowledge, not conditions equally observable by "ordinary diligence[.]" 
WILLIAM B. WHITE, Plaintiff-Appellant vs. DORIS BOWMAN, DOUGLAS R. ECKHOFF, SANDY L. ECKHOFF, and RELOCATION PROPERTIES MANAGEMENT, LLC, Defendants-Respondents
Missouri Court of Appeals, Southern District - SD29631