July 25 - July 31

Headings and Summaries prepared by The Missouri Bar   


Review is for Prejudice, Not Mere Error
Court of Appeals reviews rulings for prejudicial error, not merely for error, so any challenge must show prejudice to prevail.  Overwhelming evidence of guilt, without considering the admissibility of challenged evidence, thwarts challenge to admission of evidence. 

Missouri Court of Appeals, Southern District - SD32772, SD32773 (Consolidated)

Motion Delayed Final Judgment
Judgment is final when no issue remains for determination as to any party, but rules provide that authorized after-trial motion delays finality of judgment.  Until finality of judgment, appeal is premature.  Premature appeal becomes ripe when judgment is final, but finality has not occurred as of opinion’s date, so appeal remains premature and Court of Appeals dismisses it. 
BV Capital, LLC, Plaintiff/Respondent, vs. Larry Hughes, Defendant/Appellant, and Third Street Investors, LLC, et. al, Defendants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED101185


Res Judicata on the Offensive
In an earlier action brought by a third party determining liability, respondent was barred from tardy assertion of exclusion under insurance policy.  In later action for equitable garnishment, collateral estoppel does not bar the exclusion issue because collateral estoppel applies only to an issue fully litigated.  But an issue not fully litigated is subject to res judicata if the precluded party, “exercising reasonable diligence, might have brought forward at the time” the insurance exclusion issue, which it could.  Therefore, insurance exclusion issue is subject to res judicata.  That exclusion is a defense makes no difference.  Later action and earlier action have the four identities: the thing sued for, garnishment; factual basis, a trucking accident covered by insurance; claimant or their privy, appellant and the insured; defending party, respondent.  Appellant never pursued equitable garnishment judgment against respondent until later action, and so was not guilty of splitting her claim. 
Xiaoyan Gu, Plaintiff/Appellant, vs. Da Hua Hu, and ACE INA Insurance Company Canada, Defendants/Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED100001

Corporations and Other Entities

Action Is Derivative, Not Individual
Circuit court dismissed shareholder's petition against corporate directors or officers alleging harm to individual shareholder from negligent misrepresentation, breach of fiduciary duty, aiding or abetting breach of fiduciary duty, and unjust enrichment.  But corporate directors' or officers' fiduciary duties run to the shareholders as a whole--the corporation--and not to any one shareholder, and no one shareholder has the right to benefit from corporate assets than another.  Therefore, even when alleging that breach of fiduciary duty harmed the corporation's shareholders, an action against a corporate director or officer generally must generally be in the corporation's name--a derivative action.  Therefore, a derivative action is necessary to allege harm to shareholders from if that harm consists of diminished share value. 
Daniel B. Nickell, Appellant vs. Michael F. Shanahan, Sr., et al., Respondents.
(Overview Summary)
Missouri Supreme Court - SC93719


Pencil Was Dangerous Instrument
Dangerous instrument is an object that is not made as a weapon, but capable of causing serious injury or death, which describes a pencil.  Appellant’s stabbing motions with pencil while advancing toward corrections officer, only stopped when officers intervened, constituted a substantial step corroborating his intent to do serious bodily harm, as statutes require for conviction of attempted assault on a corrections officer. 
State of Missouri vs. Delmario R. Reese
(Overview Summary)
Missouri Court of Appeals, Western District - WD76656

Continuance Not Required
Circuit court commits no abuse of discretion when it denies a motion for continuance, seeking additional time for appellant to prepare for trial, on matter for which appointed counsel was prepared.  Witness’s reference to a crime similar to that charged against defendant—unsolicited and not emphasized by State, not linked to appellant, and of no decisive value—did not require mistrial. 
State of Missouri vs. Daniel Dumond Brown, Sr.
(Overview Summary)
Missouri Court of Appeals, Western District - WD76245

Must Rule on Motion to Suppress
Corroboration of an anonymous tip is necessary for a stop.  A “knock and talk” is not a type of investigation in which officers go to a place, knock on the door, and seek consent to a search from whomever answers.  A “knock and talk” requires neither warrant nor probable cause.  Indeterminate record on whether evidence of crime was in officers’ plain view requires a remand for ruling on motion to suppress.
State of Missouri, Appellant, vs. Terry Nebbitt, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99548

Cruel and Inhuman Punishment Shown
Statutes do not define “cruel and inhuman punishment” in child abuse statutes, but common law does.  Evidence of victim’s injuries raised an inference that appellant acted knowingly.  Weaknesses in authentication of Myspace message were for cross-examination and determination of weight by jury, but circuit court did not err by entering that evidence into the record. 
STATE OF MISSOURI, Plaintiff-Respondent, vs. DUSTIN J. SNOW, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD32888


Warning Is Mandatory
In a refusal case, “[r]evocation of a driver's license for refusal to submit to a chemical test is . . . conditioned upon the arresting officer making a statutorily sufficient request that the driver take the test.”  Statutes include in request officer’s reasons for request, warning that refusal can be used against driver, and warning that refusal is grounds for immediate revocation. 
JOSEPH DEWAYNE NEFF, Petitioner-Appellant, v. DIRECTOR OF REVENUE, Respondent-Respondent.
Missouri Court of Appeals, Southern District - SD32960

Education and Schools

Firing Procedure Not Followed
Statutes governing firing of permanent teacher under indefinite contract require that teacher be fired only on charges as to which teacher has notice and an opportunity to correct.  School district board of education may extend time of correction but may not fire teacher for reasons not within notice.  Statutes require reinstatement of, and back pay awarded to, prevailing teacher but do not require an award of attorney fees to prevailing teacher. 
CHRISTINA DINKINS, Respondent-Cross Appellant, vs. SOUTH IRON R-1 SCHOOL DISTRICT, Appellant-Cross Respondent.
Missouri Court of Appeals, Southern District - SD32671, SD32698 (Consolidated)

Employment Security

Cab Drivers Were Independent Contractors
Distinction between employee and independent contractor includes 20-factor test under Internal Revenue Code, which emphasizes control over worker's performance.  No one factor is determinative and the majority of factors toward one status or the other does not necessarily control.  When the law imposes duties on worker, enforcing those duties does not establish employment.  Of the 20 factors, “five factors favor employee status, seven factors favor independent contractor status, two factors could be neutral or favor independent contractor status, one factor could be neutral or favor employee status, and five factors are neutral or inapplicable.” Control over workers was “great” but not beyond that required by law.  Cab drivers were independent contractors.
Gateway Taxi Management vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD76886


Proof of Some Is Proof of All
Evidence that the contents of one baggie consisted of cocaine base supports a conviction for possessing 54 baggies, all found together in one larger bag, of cocaine base.
State of Missouri, Respondent, vs. Hughes Martine, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99719

Corroboration Rule and Destructive Contradictions Doctrine Abolished
Destructive contradictions doctrine provides that appellate court may disregard any testimony that is sufficiently internally inconsistent. Corroboration rule provides that appellate court may overturn a sex crime conviction if it determines that victim's testimony leaves a degree of doubt, which assumes that one who alleges a sex crime is more likely lying than one who reports some other crime, and that juries or circuit judges are less capable for discernment than appellate courts.  Both require an analysis that constitutes a fact-finding and underlying credibility determinations.  Those are the functions of a jury or circuit judge, not appellate court, so appellate courts will review criminal judgments without corroboration rule and all judgments without the destructive contradictions doctrine.  Viewed in the light most favorable to the State, record supports convictions for sex crimes against child.  Record does not show that appellant preserved challenge to video recordings that jury was allowed to view. 
State of Missouri, Respondent vs. Sylvester Porter, Appellant.
(Overview Summary)
Missouri Supreme Court - SC93851


Survivor's Payment Is from Co-Insured's Coverage
Statutes mandating minimums for uninsured motorist coverage provide that when one co-insured dies, that co-insured's coverage pays surviving co-insured.  Statutes do not require that co-insured survivor have their own separate coverage for decedent's death.  Accordingly, automobile policy covered insured for insured's death by paying proceeds to any person with standing to bring a wrongful death action, and severability clause unambiguously defined the insured to mean the person who sustained the injury.  Exclusion in "owned vehicle" provision partially excluded coverage for death occurring in a vehicle owned by insured but not listed in policy. 
Rebecca Floyd-Tunnell, et al., Appellants vs. Shelter Mutual Insurance Company, Respondent.

(Overview Summary)
Missouri Supreme Court - SC93904

Mental Health

No Hearing Required
Statutes governing sexually violent predator procedure require a hearing on disposition of prisoner only if prisoner successfully completes program, Board for Probation and Parole recommends release, circuit court concludes that release is an abuse of discretion.  Then, and only then, circuit court must hold a hearing within statutorily prescribed time.  Because appellant never successfully completed program, no hearing was required.
State of Missouri Ex Rel. Chris Koster vs. The Honorable Cynthia Suter, Associate Circuit Judge of Randolph County and Peggy Boots, Circuit Clerk Randolph County Circuit Court
(Overview Summary)
Missouri Court of Appeals, Western District - WD77163 and WD77188

Personal Injury

Right to Control Premises in Dispute
In action over condition of leased premises, tenant did not show that evidence of past due rent notices misled the jury.  Landlord has no liability except when the injury occurs in a common area, or is caused by a hidden dangerous condition, or landlord has contractual obligation to make repair and control over premises sufficient to do so.  Evidence that landlord had right to enter premises and duty to make repairs did not establish landlord’s control without additional facts. 
Jacqueline Stephenson, as Mother and Next Friend of Jada Stephenson, a Minor, Plaintiff/Appellant, vs. Countryside Townhomes, LLC, Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED100327


Omission from Motion Waives Claim
Rule provides that failure to timely file motion is a complete waver of all relief under rule.  “A ‘complete waiver’ means more than just a ‘waiver.’ . . . The term "waiver" is defined as the ‘intentional relinquishment of a known right  [‘and a] complete waiver' . . . establishes a total, absolute relinquishment of a legal right.”  Circuit court cannot address a claim that was subject to relief by motion, so Court of Appeals remands judgment on claim and remands to circuit court for dismissal.
State of Missouri, Respondent, vs. Michael S. Coleman, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED100745


Disrespect of Will Reverses Deposit
Statute requires attorney-in-fact to maintain existing probate plan and make no gifts of principal's property unless expressly directed otherwise  Durable power of attorney expressly authorized gifts, including gifts to attorney-in-fact if gifts "respected" principal's last will and testament.  Attorney-in-fact sold principal's property and deposited proceeds into account payable on death to attorney-in-fact. Those facts constituted a gift of principal's property to attorney-in-fact.  Circuit court judgment ordering reversal of deposit affirmed. 
In the Estate of Martha Lutisha Qualls: Debra M. Kirchhof vs. Bonnie Williams
(Overview Summary)
Missouri Court of Appeals, Western District - WD76962

Real Property

Householder Procedure for Fence Dispute Explained
Statutes governing fence dispute include appointment of householders to make award.  Appellant’s failure to participate in statutory procedure does not constitute a procedural defect.  Circuit court’s remedy stood on evidence, and was not erroneous for departing from petition, and clearly set forth parties’ respective duties.  Statutes mandate award of attorney fees to prevailing party.
Paul C. Ferguson vs. R. Kenneth Ewing and Dorothy A. Ewing
(Overview Summary)
Missouri Court of Appeals, Western District - WD76487 and WD76521


No Refund of Sales Tax Already Reimbursed by Finance Company
Statute provides refund for sales tax erroneously collected.  Erroneously collected includes, according to Director of Revenue's regulation, sales tax collected on a transaction written off as a bad debt because the seller never receives full payment.  But seller received full payment from finance company and did not write off bad debt; finance company wrote off bad debt.  Neither regulation nor contract between seller and third party can alter statute. 
Circuit City Stores, Inc., Respondent, vs. Director of Revenue, Appellant, consolidated with)Dillard's, Inc., Respondent, vs. Director of Revenue, Appellant
(Overview Summary)
Missouri Supreme Court - SC93687 consolidated with SC93711


Deterioration Includes Damage Under ISRS
Statutes governing infrastructure replacement surcharge ("ISRS") provide that ISRS pays for replacement of infrastructure that has deteriorated.  Deterioration includes growing worse generally, so pipe damaged by third party was covered under ISRS.  Public Service Commission's order is lawful if statutes authorize it and is reasonable if it has support in substantial and competent evidence, is not arbitrary or capricious, and does not constitute an abuse of discretion. 
In the Matter of the Verified Application and Petition of Liberty Energy (Midstates) Corp d/b/a Liberty Utilities to Change its Infrastructure System Replacement Surcharge; Missouri public Service Commission vs. The Office of Public Counsel
(Overview Summary)
Missouri Court of Appeals, Western District - WD77089

Workers' Compensation

Work Caused Injury
Statutes require that, for condition to be compensable, both the condition and the disability must be the result of work.  Digging through jammed file drawers, and pulling out jammed files, was claimant’s job and it presents a greater hazard of back injury in an office that works with files than in everyday life.  Claimant “injured her back because she was at work, not merely while she was at work.”  Whether injury primarily caused disability is an issue of medical causation, which requires expert evidence, which is present in the record to support the award. 
Randolph County, Missouri vs. Tammy Moore-Ransdell
(Overview Summary)
Missouri Court of Appeals, Western District - WD76709



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