Appellate

Briefing Violations Fatal
Noncompliance with appellant’s briefing rules—including authority for appellate jurisdiction, statement of facts, points relied on, and argument—makes appellate review impossible. 
Mattie L. Davis, Plaintiff/Respondent, vs. Melinda L. Long, Defendant/Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED98247

Criminal

Liberty at Stake During Guilt Phase
During interrogation, appellant stated that he defended himself against victim because victim pistol-whipped appellant causing six gashes, but officer observed the absence of any visible signs of such wounds.  Admission into evidence of transcript of interrogation, including officer’s observation, was not error because such observation did not constitute expert medical testimony.  During guilt phase of trial, defendant has a right to argue that his liberty is at stake because a conviction limits liberty even without a sentence of confinement.  To bar that argument was error, but appellant showed no prejudice. 
State of Missouri, Respondent, vs. David E. Jones, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97956

Education

No Action Pled Against University
Even if student-university relationship is contractual, to state a claim for breach of contract, plaintiff must plead “the rights of plaintiff and obligations of defendant under the contract [.]”  Appellant cited only general policy statements in university rules and regulations, which did not constitute specific promises “subject to . . . quantification [or] objective evaluation.”  Class schedules not included in record cannot support claim for professor’s inadequate attendance.  Faculty irresponsibility provisions are explicitly for university to police its faculty, so appellant’s citation to them constitutes an action for educational malpractice, which does not state a claim on which relief can be based.  Appellant did not show that university had bad faith in not pursuing appellant’s allegation of faculty irresponsibility.
Joseph Lucero vs. The Curators of The University of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD74768

Orders of Protection

Stalking and Harassment Distinguished
Statutes provide order of protection for domestic violence with stalking, which requires proof of alarm, which requires “fear of danger of physical harm.”  Respondent did not testify that she feared physical harm so record did not show stalking.  Statutes provide order of protection for harassment, which requires proof of an attempt to cause “substantial emotional distress” but not proof of actual fear. 
M.D.L., Respondent, vs. S.C.E., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97992

Personal Injury

Food Poisoning Evidence Excluded
“[E]vidence [that] is relevant and sufficiently similar to the injury-causing incident so as to outweigh the concerns of undue prejudice and confusion of the issues” is admissible to show that the incident caused the injury.  Plaintiffs alleged that food-borne illness came from defendants’ restaurants and planned to offer evidence of similar illnesses at other restaurants sharing the same supplier.  Circuit court granted motion in limine excluding that evidence.  That ruling was not an abuse of discretion because nothing showed that same food item caused all illnesses and that illnesses were caused by different strains of bacteria.  Appellant’s briefing errors did not impede review so Court of Appeals does not dismiss. 
S.M.R., a minor, by and through her Next Friend and Mother, LISA MARIE RYAN, JEFF MADISON RYAN, and LISA MARIE RYAN, Plaintiffs-Appellants, vs. MCDONALD'S CORPORATION, and KRIS DAVISON, INC., Defendants-Respondents.
Missouri Court of Appeals, Southern District - SD31456

Post-Conviction

Abandonment Not Prejudicial
After defending himself pro se, movant claimed ineffective assistance of counsel.  “[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of 'effective assistance of counsel.'”  Record showing that circuit court knew of movant’s treatment history refutes claim that additional information would have made a difference in circuit court’s ruling on waiver of counsel.  Untimely filing of statement in lieu of amended motion constituted abandonment by post-conviction counsel, but movant suffered no prejudice because circuit court treated statement as timely filed and ruled on the merits.    
BENJAMIN LEWIS HARPER, Movant-Appellant, vs. STATE OF MISSOURI, Respondent-Respondent.
Missouri Court of Appeals, Southern District - SD32000

Real Property

Record Supported Adverse Possession
Rule freely allows amendment of the pleadings to conform to evidence offered even if objected to, disputed exhibit was produced in discovery months before trial, and opponent could show no prejudice, so circuit court did not err in admitting exhibit.   Petition’s description of disputed land included legal description set forth on exhibit, so exhibit was within the pleadings.  Maintenance of disputed land as a yard showed actual and exclusive possession of land and standard of review disregards contrary evidence. 
DAVIS ESTATES, L.L.C., a Missouri Limited Liability Company, Plaintiff-Appellant, vs. RONALD JUNGE and JOANN JUNGE, Defendants-Respondents.
Missouri Court of Appeals, Southern District - SD31896