Raise Issues at Agency Level
A party with a claim or defense in action before agency must raise it to agency. “The general rule is that a court should not set aside administrative actions unless the agency has been given a prior opportunity, on timely request by the complainant, to consider the point at issue.”
MARION TIBBS, ASSESSOR BUTLER COUNTY, MISSOURI, Plaintiff-Respondent vs. POPLAR BLUFF ASSOCIATES I, L.P., Defendant-Appellant
Missouri Court of Appeals, Southern District - SD31385
Docket Entry Not Final Judgment
Docket entry may constitute final judgment but only if it is designated as judgment, is signed by judge, and disposes of all issues as to all parties. Order directing plaintiff to file proposed judgment had none of those features.
NANCY PACHMAYR, Plaintiff-Respondent vs. WILLIAM HARPER, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD31753
Quantum Meruit Governs Contingent Fee
Client’s termination of contingent fee contract with firm left firm with only a claim for quantum meruit, so quantum meruit is all firm’s partners had to divide when firm dissolved. Whether former partner’s petition pled quantum meruit is irrelevant once Court of Appeals issued mandate of general remand. Court of Appeals mandate of “general remand has the effect of a direction to proceed in accordance with the holdings entered by the opinion of the appellate court as the law of the case.” Circuit court is an expert on value of attorney fees and time spent on case is not the only factor for consideration. Substantial evidence supported amount of fees awarded.
WILLIAM O. WELMAN, BRIAN D. HIVELY and BARBARA A. GODLEY, Plaintiffs-Respondents, vs. CAMERON BUNTING PARKER, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD31490
More Evidence Required on Ambiguity
Judgment does not show whether circuit court understood that contract was ambiguous and construed ambiguity in favor of prevailing party or did not understand that contract was ambiguous. Remanded to determine contract’s intent through further extrinsic evidence, if needed.
Pinewood Investments, LLC, Appellant, vs. Steven M. Myatt and Jeanne Myatt, Respondents.
Missouri Court of Appeals, Eastern District - ED97871
Multiple Assailant Instruction Required
Defendant did not proffer instructions challenged on appeal and so did not waive plain error. Plain error occurred when, on record showing that more than one person joined assault on defendant, circuit court did not sua sponte modify the self-defense instruction to address multiple assailants. “[D]eadly force generally cannot be used to repel a simple assault and battery [but] each assailant of a multi-assailant attack [need not] individually threaten defendant with death or serious physical injury in order for defendant to receive an instruction hypothesizing multiple assailants.” Failing to give such an instruction relieved State of part of burden of proof. Instructions were reversible plain error.
State of Missouri, Respondent, vs. Robert Lee Mangum, Appellant.
Missouri Court of Appeals, Eastern District - ED96029
No Free-Speech Right to Threaten Official
Statute that bars words that put a public official in "reasonable apprehension of offensive physical contact or harm" is not unconstitutional because the Constitution does not protect speech of which the utterance alone is an injury. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." Evidence supported a finding of "coarse language [.]" Conviction under provision already held unconstitutional is manifest injustice.
State of Missouri, Respondent vs. Mark Wooden, Appellant.
Missouri Supreme Court - SC92846
Should Have Taken Job Offer
On defense of leaving work without good cause, claimant must negate one of those elements. When claimant’s IT position at car dealership was eliminated, employer offered him a sales position with almost the same compensation. Claimant turned down that offer and signed a voluntary resignation, in favor of developing his own photography business. Those facts, as a matter of law, show a choice not to be employed. Good cause was lacking because claimant did exercise good faith by trying new position.
Thomas Kimble vs. Division of Employment Security
Missouri Court of Appeals, Western District - WD75161
Admission of Records No Confrontation Clause Problem
Statute allows admission of records into evidence, eliminating need for authentication, and best evidence rule challenges, and hearsay challenges. That statute does not violate right to confrontation because statutes also provide an “unbridled subpoena right” to compel attendance of a witness, including record’s author.
Norman C. Doughty, Appellant vs. Director of Revenue, Respondent. (consolidated with) David T. Doughty, Appellant vs. Director of Revenue, Respondent.
Missouri Supreme Court - SC92260 consolidated with SC92261
Record Lacks Parenting Plan
Statute requires judgment to include parenting plan. Judgment may be found collectively across more than one document. Parties attached parenting plan to briefs, but record does not show that it was ever filed. Absence of parenting plan from record leaves custody issue unresolved, so Court of Appeals lacks jurisdiction.
Kimberly Degennaro vs. Theodore Alosi
Missouri Court of Appeals, Western District - WD73854
Medicaid Sanction Upheld
Sanction for filing of false claim does not require evidence of fraud. Whether filer of false claims was provider's employee or independent contractor made no difference to provider's liability under contract and regulation. State's interest in paying only for legitimate claims thwarts due process challenge to sanction. Point first raised in reply brief is not preserved for review.
Independent Living Center of Mid MO Inc. D/B/A Services for Independent Living vs. Department of Social Services, MO Healthnet Division
Missouri Court of Appeals, Western District - WD74707
Hospital Protocols Do Not Prove Nursing Standard of Care
Statute allows admission of affidavits, if timely served. No abuse of discretion in rejecting affidavits, and no prejudice since affidavits did not negate all charges of false billing records. On an allegation of incorrectly operating cardiac monitors, to establish gross negligence, or a violation of professional trust based on use of professional skills, required expert testimony. Hospital protocols did not establish nursing standard of care. Expert testimony might be necessary to determine breach of standard as to nurse’s nursing records, but not as to her billing records. Remanded to consider degree of discipline for billing records violation only.
Mary Luscombe vs. Missouri State Board of Nursing
Missouri Court of Appeals, Western District - WC75049
Owned-Vehicle Exclusions Examined
Policy excluded injuries involving vehicles owned by insured, but not covered under policy. But exclusion did not define ownership. It is more than having possession or an insurable interest, so insurer could not show that "owned vehicle" exclusion applies. Courts read policy provisions together, including provisions of separate policies. "Two or more cars insure" provisions bars stacking, and set-off provision reduces amounts due, but "other insurance" provisions permit stacking and negate set-off.
Nathaniel James Manner, Appellant vs. Nicholas Brian Schiermeier, Con-Tech Foundations, LLC, Helmet City, Inc., and Jafrum International, Inc., Defendants, American Family Mutual Insurance Company, and American Standard Insurance Company, Respondents.
Missouri Supreme Court - SC92408
Orders of Protection
Justification Negates Order
Act of abuse raises presumption of future harm required for order to issue, but accused still has right to make defense. Undisputed facts show that facts charged as abuse constituted a lawful defense of property under statute allowing use of deadly force against one who “unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling [or] residence . . . lawfully occupied by” one raising the defense.
Alyssa F. McAlister vs. Ethan T. Strohmeyer
Missouri Court of Appeals, Western District - WD75160
Brady Violations Support Habeas
Supreme Court gives special master’s findings deference due a bench-tried case. Cause and prejudice supporting relief include Brady violations that undermine verdict’s credibility. Materials that favored the defense, but were not disclosed, to defense’s prejudice included letters among circuit judge, special prosecutor; and victim; and statements that alternative suspect had violated protective order and threatened violence, supporting defense theory. Other circumstances included statements impeaching alternative suspect’s alibi, and control of investigation by private investigator instead of police. Convictions vacated and movant discharged in 60 days unless re-charged within that time.
State ex rel. Mark Woodworth, Petitioner vs. Larry Denney, Warden, Respondent.
Missouri Supreme Court - SC91021
Title Transferred, Sale Occurred
Sales tax applies to gross receipts from a retail sale. Sale occurs when title transfers. Airline sold fuel to contractors with agreement that subsidiaries would use fuel only on flights contracted with airline. That agreement did not outweigh other facts supporting a finding that title to fuel transferred, which supports a conclusion that sale occurred subject to tax.
American Airlines, Inc., Appellant vs. Director of Revenue, Respondent.
Missouri Supreme Court - SC92314
Utilities for Common Areas Exempt
Statute exempt from sales tax any sale of utilities for domestic use. Domestic use includes purchase for apartment or condominimum common areas and facilities, whether through resident's single meter or landlord's master meter. Use is controlling; classification on seller's rate schedule is not.
801 Skinker Boulevard Corporation, et al., Appellants vs. Director of Revenue, Respondent
Missouri Supreme Court - SD92401
Tariff Cannot Change Common Law
On review of earlier Public Service Commission order, Court of Appeals held that tariffs must be consistent with common law on utility’s liability, and Public Service Commission cannot authorize departure from common law. That ruling disposes of later Commission order approving tariffs purporting to alter common law as to utility’s liability.
The State of Missouri Public Service Commission the Office of Public Counsel vs. Missouri Gas Energy, a Division of Southern Union Company
Missouri Court of Appeals, Western District - WD75024
Record Supports Partial Over Total Award
Text of decision shows that expert Labor and Industrial Relations Commission, and the witness it found credible, considered all injuries, physical and psychological, when making award. Labor and Industrial Relations Commission's “finding on a technical matter, such as the employability of an individual, . . . is within the Commission's expertise.”
PEGGY CAMBRON, Claimant-Appellant vs. TREASURER OF STATE OF MISSOURI, as Custodian of Second Injury Fund, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD31814
Auditory Claims Discussed
On review of workers' compensation decision by Labor and Industrial Relations Commission, the issue was whether the evidence reasonably supports the Commission’s findings. Statutes provide that claimant has the burden of proving that work was prevailing cause of injury, and provide standard for measuring hearing loss. Expert testimony that claimant was not within those standards supported decision against claimant. Expert testimony that work caused tinnitus is absent from record.
BERT KERSEY, Claimant-Appellant vs. AUTRY MORLAN, INC., Employer-Respondent
Missouri Court of Appeals, Southern District - SD31883
Disability Percentage Cannot Be Admitted
Regulation provides that failure to timely file answer to claim form deems admitted all facts alleged, and facts alleged on claim form included percentage of disability, which is an issue of fact. But claim form did not ask for percentage of disability, so that allegation is more than regulation contemplates. And percentage of disability is an issue “within the special province of the [Labor and Industrial Relations] Commission,” on which Commission can even disregard a stipulation.
Ray Taylor vs. Labor Pros LLC
Missouri Court of Appeals, Western District - SD75174