Appellate

Ruling on One Issue Is No Final Judgment
Court of Appeals examines its jurisdiction sua sponte.  Circuit court's certification for appeal with no just reason for delay is not controlling.  Partial summary judgment addressed only one item alleged as damages, leaving other theories of recovery undecided, so no distinct judicial unit was before Court of Appeals.  Dismissed. 
Ice Castles, Inc. vs. Gross Insurance Agency, Inc. and Belinda "Wendy" Bradley
(Overview Summary)
Missouri Court of Appeals, Western District - WD74776

Attorneys

Causation Not Shown
Elements of claim for legal malpractice are an attorney-client relationship, attorney negligence, and damages, and proximate causation between negligence and damages.  On claim that attorney was liable for failure to suggest an ante-nuptial agreement provision, which would have constituted a "better deal [,]" husband could not show causation.  Part of that claim is that there was a better deal possible, which requires showing what the better deal was.  Whether wife would have agreed was mere speculation, even with evidence of other agreements, and from experts in family law.  Hearsay from another action remains inadmissible even when offered to prove a different allegation.  "It is well established that witnesses are incompetent to testify as to the intentions of other parties. 'A witness’s "attempt to state what was in someone else's mind is either sheer speculation or unadulterated hearsay.'" Summary judgment against husband affirmed.
Donald L. Bryant, Jr., Appellant, vs. Bryan Cave, LLP, and Lawrence Brody, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97978

Civil

Long-Arm Statute Not Met
A single phone call does not constitute transacting business under statute, in addition to minimum contacts under due process of law, for Missouri courts’ jurisdiction over civil matter.  “[A] contract is made in the state where the acceptor speaks into the phone” and that action happened outside Missouri. 
POOR BOY TREE SERVICE, INC., Appellant vs. DIXIE ELECTRIC MEMBERSHIP CORPORATION, Respondent
Missouri Court of Appeals, Southern District - SD31805

Consumer

Personal Liability for Fax Blast Not Shown
Telephone Consumer Protection Act provides liability for fax blasting, with corporate officer's liability for personal conduct, and triple damages for knowing and willful violation.  Whether appellant had knowledge of corporation's faxes was subject to genuine dispute as shown by deposition and affidavit. "It is inappropriate for the [circuit] court to make credibility determinations in a summary judgment proceeding." 
Hoops & Associates, P.C., A Missouri Corporation, Individually and as the Representatives of a Class of Similarly-Situated Persons, Plaintiff/Respondent, vs. Financial Solutions and Associates, Inc., and Michael Grimes, Defendants/Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED98687

Criminal

Unborn Manslaughter
Statutes provide that the unborn begin life at conception and may be victims of manslaughter, while Uniform Determination of Death Act provides that death occurs with the cessation of functions that the unborn do not have.  The Act does not contradict the other statutes. It simply addresses other facts, so the rule of lenity does not apply.  Evidence supported a finding that mother was pregnant when killed in wreck. 
STATE OF MISSOURI, Respondent vs. JOHN WILLIAM HARRISON, Appellant
Missouri Court of Appeals, Southern District - SD31374

Fugitive Undefined for Concealed Carry Law
A concealed carry permit is not a defense to unlawful use of a weapon by possession of firearm while a fugitive.  But a fugitive is undefined for that purpose and statutes governing unrelated purpose do not control, so term has "many reasonable meanings [,]" which requires applying rule of lenity.  Strict construction of "fugitive" excludes defendant, whose only charge was failure to appear on a municipal ordinance violation.   
State of Missouri vs. Gregory Allan Rodgers
(Overview Summary)
Missouri Court of Appeals, Western District - WD74912

Extra Element Not Prejudicial
Instructions included a matter not relevant under statute, so whether record supported a finding of that element is irrelevant to appellant's guilt.  "Thus, it is irrelevant whether the jurors unanimously agree as to a fact non-essential to the commission of the crime." Statutes provide that sexual contact may occur through clothing, but that does not exclude touching through other materials like a condom, and does not make presence or absence of clothing an element of child molestation or a distinct method of committing that offense.
State of Missouri vs. Virgil James Kelso
(Overview Summary)
Missouri Court of Appeals, Western District - WD74134

Nunc Pro Tunc Corrects Judgment
Rule allows correction of errors by circuit court. Circuit court announced conclusion that defendant was a prior and persistent offender but incorrectly memorialized that conclusion.  Remanded to correct judgment by order nunc pro tunc.
State of Missouri vs. Laurence Cleo Hays II
(Overview Summary)
Missouri Court of Appeals, Western District - WD73942

DWI

Refusal Not Shown
Director of Revenue presented circuit court with evidence that could support a finding in Director’s favor but circuit court did not have to construe evidence that way.  Circuit court found that circumstances showed a confused explanation of the breath test process such that the driver did not understand that she had refused a breath test.  Affirmed.
KRISTEN HASSELBRING, Respondent vs. DIRECTOR OF REVENUE, Appellant
Missouri Court of Appeals, Southern District - SD31768

Two Drivers Possible
No applicable law presumes that owner of car is driver.  On charge of refusing breath test, evidence that two persons were sharing the driver's seat, had their hands on the steering wheel, and admit to driving the vehicle constitutes reasonable grounds to believe that either operated the vehicle; officer need not choose between the two.  “[A] reasonably prudent police officer would be justified in believing that both had been operating the vehicle.”
RICHARD LEE RISNER, II, Petitioner-Appellant vs. DIRECTOR OF REVENUE, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD31744

Education

University is Public Accommodation
Missouri Human Rights Act bars sexual harassment in places of public accommodation. Holding out educational services to public, even while excluding most of the public, defines university as a place of public accommodation, and thus brings university within jurisdiction of Missouri Human Rights Commission.  Exception for places "not in fact open to the public" applies to special relations between place and customer, like an employee cafeteria. Commission was therefore not subject to prohibition in action to investigate university, especially as to right-to-sue letter, which authorizes private action.
State of Missouri ex rel Washington University vs. Jessica Richardson; Missouri Commission on Human Rights
(Overview Summary)
Missouri Court of Appeals, Western District - WD74907 and WD74993

Employment

Instructions for Disability Discrimination Discussed
Point supported with mere conclusion, and argument outside point, are abandoned.  Plaintiff's evidence constituted a submissible case for constructive discharge by denial of opportunity to earn based on his brain tumor despite his continuing ability to work.  Instruction assumed a disputed issue but, in context with other instructions, its use did not constitute plain error.  Rule requires specific objection to instruction.  Approved instructions do not define contributing factor, and need not do so, because jury understands the plain term.  No error in rejecting duplicative instruction. As to attorney fee award ten times greater than actual damages, defendant did not preserve challenge but plaintiff did.  Statutes allow attorney fees award to prevailing party, but Court of Appeals cannot review award for abuse of discretion without findings on the factual circumstances that determine award, so Court of Appeals remands for findings on those issues. 
Thomas Dewalt, Plaintiff-Respondent/Cross-Appellant, vs. Davidson Service/Air, Inc., Defendant and Donald Davidson, Defendant-Appellant/Cross-Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97905

Insurance

Excess v. Gap
Any contradictory language anywhere in policy creates an ambiguity.  Courts read policy according to how an average buyer would read policy before a claim, not after.   Endorsement and declaration provisions state that underinsured coverage is in excess of tortfeasor's coverage, while definition and set-off provisions suggest that policy is merely gap coverage.
Dwight Miller vs. Ho Kun Yun a/k/a kun y ho, et al
(Overview Summary)
Missouri Court of Appeals, Western District - WD74890

Personal Injury

Proof of Causation Absent
Violation of Locomotive Inspection Act establishes a breach of duty under Federal Employers Liability Act but does not establish injury's causation.  Causation must stand on expert testimony that, absent from the record, results in no submissible case, so circuit court did not err in directing verdict for defendant.  Motion in limine preserved error as to rulings on evidence of benefits but not eligibility for retirement.
Stephen Payton, Plaintiff/Appellant, v. Union Pacific Railroad Company, Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97480

Passenger Had No Duty
Passenger had no duty to plaintiffs under theories of direct negligence, agency of driver for passenger as principle, or action in concert, under facts established and undisputed.  Since passenger had no liability, whether insurance covered his liability is moot.  Partial judgment resolved all claims as to passenger and so was properly certified for appeal.
SAFE AUTO INSURANCE COMPANY, Plaintiff-Respondent, vs. EVAN HAZELWOOD, and JESSICA HAZELWOOD, Defendants-Appellants, TERRY BREIDENSTEIN, Defendant-Respondent and CARDL CASEY, Defendant.
Missouri Court of Appeals, Southern District - SD31928 and SD31929 (consolidated)

Post-Conviction

Transcript Required
Guilty plea negates all issues other than whether guilty plea was knowing and voluntary, which it is presumed to be.  Circuit court found appellant’s claims to be refuted in the record.  A transcript of plea hearing is necessary to review that judgment and appellant included none.  Evidentiary hearing on motion shows that appellant did not prove his claims. 
JOHNNIE JEROME KERNS, Movant-Appellant vs. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD31722

No Prejudice Shown
Jury’s rejection of one lesser-included offense shows that decision not to submit another lesser-included offense did not prejudice him.
EDWARD RIVERA MESSIER, Movant-Appellant vs. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD31810

No Duty to Advise of Parole Eligibility
Guilty plea is knowing and voluntary when made under advice of direct consequences, but direct consequences do not include eligibility for parole, so trial counsel's failure to advise on that matter is not cause for relief under rule.
JULIAN J. JOHNSON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD31920

Probate

Devise Adeemed Pro Tanto
Trust corpus was to support grantor for life, followed by specific gifts and a residual clause.  To support grantor, circuit court ordered conservator to sell property in trust.  That transaction is not subject to Nonprobate Transfers Law and statutes on predeceasing heirs.  Though statutes allow circuit court to modify trust, circuit court did not do so.  Sale adeems specific bequests only to the extent proceeds were used for ordered purpose; remainder passes to specified devisees, not through residual clause.
IN THE INTEREST OF MILDRED M. HONSE, Deceased.
Missouri Court of Appeals, Southern District - SD31853