Record Supported No Declaratory Judgment
In declaratory judgment action to determine whether employer who “was no longer in business” could still direct treatment, record did not show whether employer remained willing or able to direct treatment. Controversy was therefore not ripe and would constitute an advisory opinion. Reversed and remanded.
BLAINE LYMAN, Plaintiff-Appellant, vs. MISSOURI EMPLOYERS MUTUAL INSURANCE COMPANY, Defendant-Respondent.
Missouri Court of Appeals, Southern District - SD32252
Law of the Case Bars Review
Law of the case bars re-litigation of any issue that could have been raised on appeal, and those appealed but denied on grounds other than the merits, like failure to comply with rules. Equalization payment need not make property division 50-50.
Joe Venton Jenkins vs. Evelyn Sue Jenkins
Missouri Court of Appeals, Western District - WD75800
Bogus Claims Cost Six-Month Suspension
Rule on reciprocal discipline allows discipline of Missouri lawyer when sister State finds cause for discipline. Sister State found that attorney filed claims, against clients of former employer firm, to extract amounts that firm procured on clients’ behalf. Rules against filing baseless claims do not distinguish between lawyer’s own claims and claims made on another’s behalf. “That an attorney may escape scrutiny when acting unethically simply by hiring another attorney who is equally unethical to perform actions on his behalf is a concept especially repugnant as it relates to the integrity of the profession of law.”
In re: Lawrence Joseph Hess, Respondent.
Missouri Supreme Court - SC92923
No Lack of Jurisdiction Shown
Plaintiff has the burden of proving personal jurisdiction when challenged before judgment, but not after. So, on motion to set aside default judgment, movant has the burden of proof. When grounds to set aside default judgment is lack of personal jurisdiction to enter default judgment, movant must show lack of personal jurisdiction to enter default judgment.
Ground Freight Expeditors, LLC vs. Judy C. Binder and Gerard F. Binder
Missouri Court of Appeals, Western District
Constructive Possession Shown
Record showed more than appellant's presence on premises. Record showed that appellant resided at premises, had greater access to relevant parts of premises, and had personal belongings commingled with evidence of crime. That evidence raises an inference of control and knowledge sufficient to show constructive possession.
State of Missouri, Respondent, v. Darin McCall, Appellant.
Missouri Court of Appeals, Eastern District - ED98617
No Warrant Needed for Abandoned Backpack
Appellant left backpack in stairwell of house where appellant had no right to be, and made unsolicited denial of possession, and of its contents. Backpack was therefore abandoned, in that there was no reasonable expectation of privacy in it, and was subject to search without warrant. Cross-examination on probation status and consequences of possessing weapon went to credibility and circuit court did not err in permitting such examination. Limiting instruction on such evidence properly directed jury. Appellant showed no prejudice compared to overwhelming evidence of guilt.
State of Missouri, Respondent, v. Brandon Morgan, Appellant
Missouri Court of Appeals, Eastern District - ED98680
Court Questions Okay
Statement of no objection waives appellate review. Circuit court committed no error when it clarified the events underlying the charges by questioning a witness.
State of Missouri, Plaintiff/Respondent, v. Phi H. Nguyen, Defendant/Appellant.
Missouri Court of Appeals, Eastern District - ED98723
Evidence that appellant knocked victim over while attempting to flee a 96-hour commitment was sufficient to support a finding of recklessness for third degree assault. Arguments as to victim’s actions are irrelevant to a challenge on sufficiency of the evidence.
STATE OF MISSOURI, Plaintiff-Respondent, vs. AMBER W. LIGHT, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD32360
“[A] statement of ‘no objection’ when the evidence is introduced affirmatively waives appellate review of the admission” unless record shows that statement means no objection other than made earlier by “mutual understanding [,]” and record did not show that exception. Evidence that SWAT team assisted in execution of warrant was not unduly prejudicial.
STATE OF MISSOURI, Plaintiff-Respondent, vs. JAMES RUSSELL WILLIAMS, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD32270
On a motion to suppress, statute provides that State has the burden of proof. Traffic stop supports a detention of duration sufficient to investigate suspected traffic violation only. After that, "the detainee must be allowed to proceed unless specific, articulable facts create an objectively reasonable suspicion that the individual is involved in criminal activity" unless detainee freely consents to search. Record does not show when officer sought consent. Extended detention and repeated demand for consent may render consent involuntary. Record supports a finding that appellant did not voluntarily consent to search.
State of Missouri vs. Tara A. Stoebe
Missouri Court of Appeals, Western District - WD76106
Appellant was in jail, and another person was living in appellant's house, when firearms were discovered in appellant's house. Nevertheless, record supports a finding that appellant possessed firearms because it includes evidence that appellant recognized one of them and possessed it in the past. Record shows appellant's knowledge that possession was unlawful because it includes evidence that he had other persons buy firearms on his behalf to evade that restriction. Restoration of rights in Iowa did not restore right to possess firearms. Appellant did not show that reference to Colorado shooting rampage was prejudicial, and no plain error in references to facts not in evidence.
State of Missouri vs. Randall G. Evans
Missouri Court of Appeals, Western District - WD75621
Some Theories Undecided on Summary Judgment
Record shows that circuit decided action on summary judgment, though dismissal was sought as to some theories, so Supreme Court reviews judgment under summary judgment standard. Statute exempts from definition of employer any corporation owned and operated by a religious order, and employer is a non-profit corporation, which has no owners, so employer did not show exemption from statutory definition. Missouri Human Rights Act requires filing of administrative action before filing of discrimination action in circuit court, but statutes do not require that administrative action was timely filed. Employer did not challenge timeliness of administrative action while it was pending, which was the earliest opportunity. Agency’s resolution of administrative action implicitly constitutes a finding of timely filing. Therefore, circuit court erred in dismissing counts based on untimely filing at administrative agency. Statutes governing practice of nursing protect appellant’s protests, about assignment of disputed procedure to physician assistant, under public policy exception to at-will employment so circuit court erred in issuing summary judgment for employer. But claims not raised to agency are waived so circuit court did not err in dismissing such a claim. Action for false light invasion of privacy protects one’s right to be left alone against highly offensive publicity through major misrepresentation, but appellant’s allegations describe damage to reputation, which states a claim for defamation only. Statutes set deadline for filing defamation claim at two years starting when appellant, using reasonable diligence, could reasonably ascertain some damage, and continue to run even though not all damages are ascertained. Claims for wrongful discharge tortious interference with business expectancy lie against employer only, not supervisor, and tortious interference requires alleging lack of justification.
Madonna Farrow, Appellant, vs. St. Francis Medical Center and Dr. Cedric C. Strange, Respondents.
Missouri Supreme Court - SC92793
No Retroactive Changes to Hours
Federal statutes and department manual provide that employee earns State compensatory time for extra hours worked per shift, or federal overtime for extra hours worked per week, but not both. Department may direct employee to use State compensatory time before annual leave before employee uses such time, but may not require the use of those hours by changing employee’s schedule in response to earning of hours.
Missouri Corrections Officers Association vs. Missouri Department of Corrections
Missouri Court of Appeals, Western District
No Propensity Evidence
Tampering statute provides that evidence of prior tampering is admissible to show defendant's state of mind, namely, defendant's knowledge that owner's consent to use property is absent. But State's evidence focused on previous convictions' details as to similarity in method. That evidence shows only a past pattern of conduct, which constitutes propensity evidence. Propensity evidence is never admissible even if relevant logically and legally.
State of Missouri vs. Michael F. Stallings
Missouri Court of Appeals, Western District
Attorney Fee Award Affirmed
Rules provide that circuit court must make findings of fact if so requested before introduction of evidence and that failure to do so is preserved by after-trial motion, but appellant did neither, and findings supported award of attorney fees anyway. Basis for findings and award include circuit court’s independent expertise “in the necessity, reasonableness, and value of attorney fees [,]” and evidence of parties’ financial means, misconduct, and merits of respective positions. Challenge to evidentiary basis of property division requires examining “universe of facts" to support ruling. Failure to show that such evidence is not probative constitutes a failure to show error.
In re the Marriage of Abby M. Geske and Timothy M. Geske ABBY M. GESKE, Petitioner-Respondent, vs. TIMOTHY M. GESKE, Respondent-Appellant.
Missouri Court of Appeals, Southern District - SD32275_SD32276
Declarations Page Ambiguous
Law construes ambiguous policy provisions against insurer because insurance's purpose is to protect the insured and insurer controls language. In analyzing underinsured provisions, declarations, crucial elements include declarations page. Declarations page's definition and definition of underinsured vehicle create ambiguity when read together as to whether underinsured coverage is gap coverage or excess coverage. Set-off provision also created ambiguity.
Stanley Fanning vs. Progressive Northwestern Insurance Company
Missouri Court of Appeals, Western District - WD75943
No Abandonment Shown
Movant’s charge of abandonment stood on allegation of inadequate investigation, which is really a charge of ineffective post-conviction counsel, for which the law provides no relief.
Robert T. Bain vs. State of Missouri
Missouri Court of Appeals, Western District
No Genuine Dispute as to Holder of Note
Blank assignment by assignee of note gave possessor right to enforce note. Alternate copy of note had special assignment to same possessor, so it raised no genuine dispute of fact. One entitled to enforce a note secured by a deed of trust is also entitled to enforce the deed of trust. Therefore, holder of note may enforce deed of trust.
U.S. Bank National Association, Respondent, v. Jeana M. Burns, Appellant, and Trustees of Wildhorse, Respondent.
Missouri Court of Appeals, Eastern District - ED99551
Ellisville Wal-Mart Permit Upheld
Failure to raise procedural irregularity in city process waives judicial review. City council's zoning decision need include no separately stated findings of fact. Failure to set forth an issue in motion for reconsideration under city's procedural regulations waives judicial review. On review of city council's zoning decision, circuit court reviews decision for support in substantial and competent evidence in the record made before city council. City's filing of record with circuit court does not determine time to review record. Record must be complete, but no additional evidence is admissible, and circuit court did not err in denying opportunity to test record's authenticity. Competent and substantial evidence showed that application had all signatures required under ordinance and that the application met all substantive factors challenged.
Thomas Debold, Appellant, v. The City of Ellisville and its Council: Adam Paul, Matt Pirrello, Dawn Anglin, Linda Reel, Troy Pieper, Roze Acup, and Michelle Murray, Respondents.
Missouri Court of Appeals, Eastern District - ED99944
Remarriage Benefit Discussed
Strict construction means that the courts cannot insert a limitation where statute’s plain words supply none. Statutes provide that when worker’s surviving spouse remarries, award du is based on entire weekly amount awarded, including award to children, not just award to spouse.
JASON ASH, DECEASED, Employee, TIFFANY ASH, CASEY ASH, and LYDIA ASH, Dependents-Respondents, vs. MILLENNIUM RESTORATION & CONSTRUCTION, Employee-Appellant.
Missouri Court of Appeals, Southern District - SD32381