January 31 - February 6

Headings and Summaries prepared by The Missouri Bar   


Appellate

Judgment Not Final
When an action is pending, a motion to enforce settlement of that action constitutes a collateral action to the underlying action, so “an order granting a motion to compel settlement is not a final, appealable Judgment” until disposition of the underlying action as to all claims and parties.  Judgment granting motion to enforce settlement, but not dismissing underlying action, is not final for appellate review.  
Karen Hidritch-Hamann, Respondent, vs. David Hidritch and Hidritch Properties, LLC, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED100008

Attorneys

Probation Extended
Original offenses related to alcohol addiction resulted in suspension, stayed pending probation.  Later offenses related to competence and fees, but not alcohol.  Aggravating circumstances include pattern of misconduct toward vulnerable clients.  Mitigating circumstances include remorse, restitution, and reform of internal office procedures.  Progressive discipline includes extendsd probation.  Factors favoring probation include whether the attorney “(1) is unlikely to harm the public during the probationary period and can be supervised adequately; (2) is able to perform legal services and practice law without causing the courts or profession to fall into disrepute; and (3) has not committed acts warranting disbarment.”  Offenses unrelated to grounds for probation do not support revocation of probation. 
In re: Nathan J. Forck, Respondent.
(Overview Summary)
Missouri Supreme Court - SC88961

Consumer

Earlier Agreements Do Not Require Arbitration
Earlier loan agreements each had arbitration clauses and purported to apply to later extensions of credit.  Later loan agreement had an integration clause and no arbitration agreement.  Later loan agreement was not subject to compulsory arbitration under earlier loan agreements because each earlier loan agreement referenced its own note specifically.  If earlier loan agreements controlled other notes, only one arbitration clause would have been necessary.
MARK HOPWOOD and MARY HOPWOOD, Plaintiffs-Respondents, v. CITIFINANCIAL, INC. and ZACHREY B. BOULWARE, Defendants-Appellants.
Missouri Court of Appeals, Southern District - SD32633

Elections

No Appropriation by Initiative
Constitution bars initiative that commits government to expenditure, but initiative that creates a sales tax for certain projects does not violate that bar.  Circuit court has jurisdiction to hear declaratory judgment action, including pre-election review of initiative, and authority to grant relief if no adequate remedy at law exists.  Circuit court’s dismissal reversed and case remanded for ruling on mandamus.
City of Kansas City, Missouri, Respondent vs. Karen Chastain, et al., Appellants.
(Overview Summary)
Missouri Supreme Court - SC93195

Employment

City Pension Construed
Enforcement of ordinances by city or delegate “are administrative and are reviewable
under [Missouri Administrative Procedure Act].”  Firefighters’ pension unambiguously reduces duty-related disability benefit for years of service less than 20. Certification of judgment, disposing of less than all claims as to all parties, was proper because facts relevant to other claims were irrelevant to claims appealed.  “In considering whether the unambiguous language of the Plan produces an illogical or absurd result, it must also be remembered that . . . those who stand to benefit from the provisions of the Plan actually control the majority of the seats on the Board” that recommends its provisions to city council. 
TOM M. ROBERTSON, IAFF LOCAL 2618, ADAM GRINES, LARIN TRENARY, and DANIEL JOBE, Plaintiffs-Respondents, vs. POLICE AND FIREMEN'S PENSION PLAN OF CITY OF JOPLIN, TRUSTEES OF POLICE AND FIREMEN'S PENSION PLAN OF CITY OF JOPLIN, and CITY OF JOPLIN, MISSOURI, Defendants-Appellants.
Missouri Court of Appeals, Southern District - SD32475

Employment Security

Appeal Requires Citation to Authority
Court of Appeals may dismiss action for failure to comply with rules.  Rule requires appellant’s brief to set forth the standard of review, any point relied on in prescribed form, and a table of “authorities cited, with reference to the pages of the brief where they are cited [.]” Also, appellant failed to challenge the ruling that the disposition below stands on—dismissal for failure to appear—and challenges the merits of her claim, which was never ruled on. 
Tracy Gunn vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD76383

Church Job Not Covered
Statutes exempt churches from Employment Security Law and requires church to notify employee of that exemption.  But nothing provides that employer’s failure to notify claimant of that exemption shall “confer rights that would otherwise not exist,” so employee is not entitled to benefits on that basis. Issue not raised until briefing is not preserved for review.  Statutes’ specific substantive provision trumps statutes’ general policy statement. 
Shana Medley vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD76197

Labor and Industrial Relations Commission Must Address Conflicting Evidence
Statute provides that entirety of the record must constitute sufficient competent evidence to support finding.  Some of employer’s records showed certain hours as paid, but other of employer’s records were silent as to the payment of those hours.  “We note, however, that these records, considered as a whole, may well justify the Commission in crediting [claimant]’s testimony.” But, when Labor and Industrial Relations Commission does not at least acknowledge that conflict, substantial and competent evidence does not support finding against claimant, so Court of Appeals reverses and remands for a decision “reflecting a reconciliation of these differences.” 
Dawn Stewart vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD76338

Evidence

Condition Other than Was Cause Irrelevant
In negligence action under Federal Employers’ Liability Act, claimant sought damages resulting from an unsafe work condition.  Evidence of another dangerous condition, not alleged to cause injury, was irrelevant and excluded without error.  “Further explanation concerning [that condition] risked confusing the jury about an irrelevancy.”  If error, it was harmless and so not prejudicial. 
Rafael Lozano, Appellant vs. BNSF Railway Company, Respondent.
(Overview Summary)
Missouri Supreme Court - SC92996

Insurance

No Intervention without Claim for Indemnity
Injured person’s claim against insured does not support intervention as a matter of right for insurer until injured person seeks indemnity against insurer.  Indemnity against insurer was barred by insurer’s refusal of defense without limitation.  Injured person’s statement that he intended to collect from insurer does not constitute a demand for indemnification. 
RICKY LEE GRIFFITTS, Plaintiff-Respondent, vs. JAMES M. CAMPBELL, Defendant-Respondent, and BNSF RAILWAY COMPANY and OLD REPUBLIC INSURANCE COMPANY, Intervenors-Appellants.
Missouri Court of Appeals, Southern District - SD32626 and SD32663

Subrogation not Pre-Empted under Federal Employee Health Benefits Act
Insured recovered judgment in tort action and insurer collected subrogation for coverage.  Missouri statute bars subrogation of tort claim and, thus, subrogation clause in policy.  Federal Employee Health Benefits Act pre-empt state laws on “nature, provision, or extent of [insurance] coverage or benefits,” but that applies to insurance benefits of the insured, not the insurer’s right to reimbursement of those benefits.  Therefore, Missouri statute bars insurer’s lien on injured person’s judgment in tort action.  Circuit court erred in dismissing insured’s claim against insurer based on policy’s unlawful subrogation clause. 
Jodie Nevils, Appellant vs. Group Health Plan, Inc., and ACS Recovery Services, Inc., Respondents.
(Overview Summary)
Missouri Supreme Court - SC93134

Post-Conviction

Hearing Too Late to revoke Probation
Statutes provide that expiration of probation ends circuit court authority to revoke probation and execute sentence, if circuit court has manifested its intent to do so, and made every reasonable effort to provide notice and hold hearing before probation’s expiration.  Setting hearing for a date after expiration, on first setting, does not show every reasonable effort to hold hearing before probation’s expiration.  Reversed for an order vacating judgment and discharging movant from probation.
MICHAEL A. TIMBERLAKE, Appellant, vs. STATE OF MISSOURI, Respondent.
Missouri Court of Appeals, Southern District - SD32580

Challenge to Sufficiency of Evidence Would Have Made No Difference
Ineffective assistance of counsel, for appellate counsel, means “that counsel failed to raise a claim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it” and that it is reasonably probable that appellate counsel’s error changed the outcome.  Evidence that movant saw the damage he caused to victim’s car supports an inference of knowing conduct on charge of leaving the scene of an accident, so a challenge to sufficiency of the evidence would not have changed the appeal’s outcome, and appellate counsel was not ineffective. 
Michael W. Schlax vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD75874

Open Plea Discussed
Rule provides that defendant cannot withdraw his guilty plea on an open plea bargain if circuit court does not follow State’s recommendation.  Trial counsel may not have made that clear to movant, but record shows that circuit court did, refuting movant’s claim.  Movant’s plea was therefore knowing, voluntary, and intelligent.  Trial counsel’s decision to make no objection to sentence within lawful range did not show ineffective assistance.  Guilty plea waives all other claims.  Time to file amended motion starts with first appointment of public defender.  Amended motion that did not state a claim did not constitute abandonment. 
Travis M. Stanley, Appellant vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Supreme Court - SC93121

Tax

Taxpayer Standing Discussed
Taxpayer standing exists to vindicate, not taxpayer’s own interests, but interest of the public in policing governmental process.  Appellants alleged taxpayer standing to bring declaratory judgment action by alleging that they are taxpayers of county acting under unconstitutional legislation.  Circuit court’s dismissal for lack of standing reversed and case remanded for ruling on the merits.  Motions to dismiss appeal and assess damages for frivolous appeal denied.
Arthur L. LeBeau, Jr., et al., Appellants vs. Commissioners of Franklin County, Missouri, Respondents.
(Overview Summary)
Missouri Supreme Court - SC93618

Workers' Compensation

Circumstantial Evidence Sufficient
Circumstantial evidence supported finding that a crack in the sidewalk caused claimant’s fall.  “Determinations with regard to causation and work-relatedness are questions of fact to be ruled upon by the Commission, and the reviewing court may not substitute its judgment on the weight of the evidence or on the credibility of witnesses for that of the Commission.”  Risks related to
Employment includes safety of location required by work.  Injury occurring in the course of inspecting future work place while arose out of or in the course of employment. 
LINDA DORRIS, Employee-Respondent, vs. STODDARD COUNTY, Employer-Appellant.
Missouri Court of Appeals, Southern District - SD32830

 


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