Corporations and Other Entities
Fictitious Names Discussed
Whether respondent was party to contract was subject to genuine dispute. As to statute on changing registration of fictitious name, law in effect of registration governs over later amended statute. Respondent signed as a member of an LLC never registered and, if no LLC existed, respondent simply used an unregistered fictitious name. “Contracts entered into under unregistered fictitious names are enforceable against the individual doing business as the fictitious name.” Respondent’s tenders of different version of contract, one with another entity’s name handwritten over his own, raised a genuine issue as to whether other entity was party. Circuit court erred in granting summary judgment without allowing discovery.
James A. Stemmler, Personal Representative of the Estate of Melvin C. Brewer, Appellant, vs. Fred M. Goffstein, Respondent.
Missouri Court of Appeals, Eastern District - ED98893
No Duty to Advise on Testifying
Victim’s testimony is sufficient by itself to support a conviction. Circuit court has no duty to advise defendant that he may testify.
STATE OF MISSOURI, Respondent, vs. JERRY ROBERTSON, Appellant
Missouri Court of Appeals, Southern District - SD32190
Inference Supports Conviction
Circumstantial evidence may support a verdict as well as direct proof. “An ‘inference’ is a deduction or conclusion reasonably drawn from facts established by proof.” Lying is evidence of guilt. Possessing large amounts of cash in small bills is evidence of drug dealing. Possession of an item consists of control over the item and awareness of item’s nature. To show control, when item is on premises that defendant occupies jointly with another, additional evidence is necessary to convict for possession. Routine access and access superior to joint occupant support a finding of control.
STATE OF MISSOURI, Plaintiff-Respondent, vs. DEWAYNE JACKSON, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD31571
Cab Drivers Were Employees
Court of Appeals does not review "indecipherable" point; nor a point raised only in argument section of brief; nor a point unsupported by authority; nor a point not raised to Labor and Industrial Relations Commission. Under Missouri Human Rights Act, employer is one who has the right to control work of another as to means and manner including salary, benefits, workspace, and supplies and person so controlled is an employee. Cab drivers were not independent contractors under that definition despite signature on "independent contractor contract." Existence and content of municipal ordinance is not subject to judicial notice. Evidence of problems with walking show disability. No error in awarding no relief of a type not sought. Act does not authorize punitive damages for claimant. Medical evidence is not necessary to support award of emotional damages.
State of Missouri ex rel. Anatoly Sir, Complainant/Appellant/Cross-Respondent, v. Gateway Taxi Management Company d/b/a Laclede Cab Company, Respondent/Respondent/Cross-Appellant, Missouri Commission on Human Rights, Additional Party/Respondent.
Missouri Court of Appeals, Eastern District - ED98703 & ED98715
Out-of-Court Identification Admissible
Evidence of identification made out of court is inadmissible if it was unduly suggestive so as to make third person's conduct the basis for identification. Mother's presence during child witness's identification, suggestion of imagining faces wearing glasses, and later affirmation of child's choice as Mother's own, did not constitute undue suggestion.
State of Missouri, Respondent, v. Michael Kayser, Appellant.
Missouri Court of Appeals, Eastern District - ED97679
Contempt Rulings Affirmed
Omitted exhibits presumed not to support point on appeal. “Rule [on registration of foreign judgments] supersedes all statutes and court rules inconsistent with it [.]” Constitutional issues not raised at earliest opportunity are waived. In contempt action, circuit court need not advise contemnor of right to counsel unless jail is at issue. Circuit court did not abuse its discretion when it denied appellant leave to file a responsive pleading out of time. Circuit court has discretion to award attorney fees against contemnor and judgment supersedes any interlocutory order.
In Re the Marriage of: Gary Wayne Erickson and Virginia Kay Erickson, GARY WAYNE ERICKSON, Petitioner-Appellant, vs. VIRGINIA KAY ERICKSON, Respondent-Respondent.
Missouri Court of Appeals, Southern District - SD31650
Rule requires appellant to provide transcript. Appellant provided none on his appeal of an award of costs for child’s care, though he argued sufficiency of the evidence. Dismissed.
In the Matter of: K.S. and L.S., Plaintiffs/Appellants, vs. J.D., Minor Child, D.D. and M.C., Defendants/Respondents.
Missouri Court of Appeals, Eastern District - ED99115
Rule on Property Division and Employment Before Maintenance
Record supported award of joint legal and joint physical custody. Statute allows award of maintenance "only if it finds the spouse seeking maintenance: (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment …." That determination includes support possible from property awarded. Marital property includes retirement benefits accrued during marriage. Property division must be just and reasonable but need not be equal. Circuit court did not abuse its discretion as to treatment of bonus income, child support, ability to pay, and squandering of marital assets. "[W]here there are inconsistencies between the findings of fact and the judgment, the judgment prevails over the findings of fact." Circuit court's failure to make requested findings of fact does not support reversal if "the record supports the judgment or if the court makes findings that substantially comply with a party’s requests."
Christine Valentine, Respondent, vs. Jody Valentine, Appellant.
Missouri Court of Appeals, Eastern District - ED98167
Principle Location Determines Applicable Law
Policies insured against risk of environmental damage at six sites in Missouri, and insured's operations were almost all in Missouri. Nothing showed that the parties expected law of any other State to apply. Therefore, law of principle location applies over law where contract was made. Policies' plain language applied all sums allocation scheme instead of pro rata approach. Different types of damage at each site required different remediation, so each such damage constituted a separate occurrence at each site. Pre-judgment interest was due from time payment was due. Filing civil action constitutes a demand.
The Doe Run Resources Corporation, Respondent/Cross-Appellant, vs. Certain Underwriters at Lloyd's London, et al., Appellant/Cross-Respondent.
Missouri Court of Appeals, Eastern District - ED98086
Jury Questions Remained
Evidence, including testimony and photographs showing damage to vehicles, made a submissible case that plaintiff’s vehicle entered intersection first and had the right-of-way. Circumstantial evidence, including view from intersection and evidence of contemporaneous texts, made a submissible case that defendant failed to keep a careful lookout, despite defendant’s testimony that she looked both ways and absence of time and distance evidence. “‘Generally, it is impossible for a party to produce direct evidence that the other party was not looking’ and, thus, ‘proof can be made circumstantially.’”
Steve Saunders vs. Kathleen Baska
Missouri Court of Appeals, Western District - WD75405
No Abandonment Based on Invited Error
Circuit court did not err in rejecting claims not raised in amended motion. Decisions to take no deposition of certain witnesses and make no objections to certain evidence, was a sound strategy and appellant showed no prejudice from it. Abandonment claim cannot stand on allegations that amended motion was inadequate. Abandonment claim cannot stand on charge that post-conviction counsel had a conflict of interest due to representing appellant on direct appeal, at least where appellant hired counsel for both purposes.
BRADLEY J. JENNINGS, Appellant, vs. STATE OF MISSOURI, Respondent.
Missouri Court of Appeals, Southern District - SD31770
No Contest in Small Estate Procedure
Statutes establish special procedures for probate of estates in the amount of $40,000 or less including procedure for claims. Appellant made claim to personal representative, who offered to sign consent to judgment but never received one from appellant. Personal representative’s offer was not subject to enforcement because “[t]he small-estate statutes contain no procedures for the litigation or resolution of disputes over claims” and leave such determinations to a full administration of the estate, for which claimant must timely petition.
In the Matter of Lloyd Fowler, Jr., Deceased Richard J. Koury, II vs. Debra Corn
Missouri Court of Appeals, Western District - WD75394