Failure to appeal one judgment may collaterally estop the appeal of a related judgment as to facts and law common to both. After judgments on liability in favor of all plaintiffs but one, appellant settled as to damages, making judgments final. As to remaining plaintiff, appellant appealed judgment on one issue, but its failure to appeal other judgments on that issue forfeited appeal of remaining judgment. Appeal dismissed.
Regions Bank, Respondent, v. City of O'Fallon, Appellant.
Missouri Court of Appeals, Eastern District - ED97903
Rule provides that docket entry may constitute judgment, but entry must at least purport to be a judgment. Entry referring to previous order’s disposition does not constitute a judgment and does not make previous order into a judgment.
Darren K. Kearns vs. New York Community Bank, et al
Missouri Court of Appeals, Western District - WD74710
Class Action Objectors Rejected
In class action, objectors failed to raise notice and adequacy of representatives until after hearing on approval of the settlement, and so waived that issue. Circuit court did not abuse its discretion in denying discovery to objectors seeking to test rationale of settlement because information was available otherwise and delay jeopardized settlement.
James Doyle, et al., Plaintiffs/Respondents, v. Fluor Corporation, et al., Defendants/Respondents, Joseph Miller, et al., Objectors/Appellants.
Missouri Court of Appeals, Eastern District - ED98462
Late Finding Okay
Evidence that appellant was among men with tools and gear for cutting copper found leaving scene of copper theft supported a conviction for burglary in the second degree. Appellant had notice of charge as a prior and persistent offender and admitted to evidence supporting that charge, so finding that appellant was a prior and persistent offender after submission of case to jury was not plain error.
State of Missouri, Respondent, vs. Sedrick Wrice, Appellant.
Missouri Court of Appeals, Eastern District - ED97890
MIRA Assets Must Be Identified
Missouri Incarceration Reimbursement Act (MIRA) provides State with reimbursement for costs of incarcerating inmate from inmate’s assets but only if “there is good cause to believe that the [inmate] has assets.” Assets means “property to which the inmate [has] a present legal right” and “does not include speculative amounts or unidentified expectations of receipt.”
State of Missouri ex rel., Chris Koster, Missouri Attorney General vs. Lloyde Cowin
Missouri Court of Appeals, Western District - WD75059
Trial Was Speedy Enough
Record shows no filing of a detainer for disposition and appellant expressly waived his rights under the Uniform Mandatory Disposition of Detainers Law. For constitutional right to a speedy trial, counting disputed delays in setting trial but not agreed delays, appellant had his trial a month before the point of presumed prejudice. As to witness disclosed late, record shows no bad faith by the State and appellant turned down the chance for a continuance for investigation, so appellant show no prejudice. Evidence supporting conviction for attempting to make meth, including constructive possession of materials, included materials found in appellant's shed and testimony that appellant had made meth there in the past. Admitting cumulative testimony that materials were for making meth was not plain error. Appellant did not show plain error or coercion in repetition of hammer instruction.
State of Missouri vs. Joe Pat Carl
Missouri Court of Appeals, Western District - WD74664
Probation is Not Part of Sentence
In a criminal action, when circuit court imposes sentence, judgment is final and subject to appeal. But no appeal lies as to probation because probation is not part of sentence.
STATE OF MISSOURI, Plaintiff-Respondent vs. ALTON L. VAUGHN, SR., Defendant-Appellant
Missouri Court of Appeals, Southern District - SD32253
Must Challenge Commission, Not Division
Appellant appeals decisions of Labor and Industrial Relations Commission but charges error in collection by Division of Employment Security, which is not the subject of appealed decisions. Statutes direct methods of recovering overpayment in accordance with claimant’s degree of fault.
Nurto Hassan vs. Division of Employment Security
Missouri Court of Appeals, Western District - WD75005 and WD75006 and WD75007
Meetings and Hearings Discussed
Whether Land Reclamation Commission may refuse a hearing depends on whether a public meeting has first occurred. If not, Commission’s regulations provide a hearing for anyone who shows “good faith evidence” that permit threatens health, safety or livelihood. Testimony of respiratory conditions aggravated by dust constituted such evidence as to permit for quarry.
Saxony Lutheran High School, Inc., and Save Our Children's Health, Inc., vs. Missouri Land Reclamation Commission and Heartland Materials, LLC
Missouri Court of Appeals, Western District - WD74994 and WD75017
Work Schedule Relevant to Custody
Appeal of order setting aside default judgment was due ten days from becoming final. Default judgment of separation, once set aside, no longer distinguishes separate property from marital property. In awarding custody, circuit court did not err in considering parents’ work schedules when determining child’s best interests. In calculating child support amount, circuit court did not abuse its discretion in including irregular secondary income and in adjusting presumed amount on dependent tax exemption. Ability to pay may, alone, support attorney fees award.
Jon Thorp, Appellant, vs. Alisha Thorp, Respondent.
Missouri Court of Appeals, Eastern District - ED97995
Declaratory Judgment Pre-Empts Initiative
Constitution bars initiative that appropriates money by any means other than its own provisions. Declaratory judgment on ordinance’s constitutionality may occur before ordinance appears on ballot. Challenged evidence was not the basis for circuit court’s judgment, so appellant shows no prejudice.
City of Kansas City, Missouri vs. Karen Chastain, et al
Missouri Court of Appeals, Western District - WD75029
Airplane Product Liability Case Discussed
Statute provides that settlement with joint tortfeasor reduces award, but also requires pleading as an affirmative defense, which conclusory pleading and no evidence at trial did not raise. Rule supported a tempered sanction for defendant’s discovery violation that prejudiced plaintiff’s presentation of case; failure to protest sanction waived point on appeal. Statute allows plaintiff to recover damages that plaintiff’s decedent experienced before death including 52 seconds between when airplane lost an engine and when airplane crashed. Curative instruction remedied reference to incidents not sufficiently similar to be admissible in evidence. Evidence supported a submissible case that defective airplane parts caused crash. Circuit court did not abuse its discretion in excluding defendant’s alternative theory of causation because it was speculative, especially when circuit court allowed evidence of airplane’s maintenance. Evidence of safety certification rebutted no allegation, so circuit court properly excluded it, and that argument did not preserve argument that safety certification established non-defective condition. Evidence supported compensatory damages awarded. Punitive damages in a product liability action require clear and convincing evidence that defendant knew of defect.
Susan Delacroix, et al., Respondents/Cross-Appellants, vs. Doncasters, Inc., Appellant/Cross-Respondent.
Missouri Court of Appeals, Eastern District - ED97375
Release of Future Negligence Valid
Release sufficiently identified by classification “any” persons released, and the future claims released, and so included future sponsors.
Colleen M. Holmes, and Rick W. Holmes, Plaintiffs/Appellants, v. Multimedia KSDK, Inc., Lynn Beall, and Michael Shipley, Defendants/Respondents.
Missouri Court of Appeals, Eastern District - ED98466
Secondary Implied Assumption of Risk Applied to Hot Dog
Evidence did not support instruction on primary assumption of the risk because, while every spectator at a baseball game assumes the risk of getting hit by a baseball, the same is not true of getting hit by a hot dog. Mascot flung hot dogs wrapped in foil to spectators in arena, striking plaintiff’s eye, causing injury. Evidence that plaintiff turned away from mascot for a moment supported an instruction on plaintiff’s comparative fault under the doctrine of secondary implied assumption of risk. “[W]here the plaintiff alleges [an] injury . . . caused not by an inherent risk, but by the defendant’s negligence [,]” “[t]he question of the plaintiff’s voluntary encounter of the risk, and the reasonableness of doing so, may properly be submitted as comparative fault to the jury.” Employee’s actions can render employer liable through either vicarious liability or employer’s negligent supervision and training, but not both, so circuit court did not wrongfully refuse instruction on employer negligence.
John Coomer vs. Kansas City Royals Baseball Corporation
Missouri Court of Appeals, Western District - WD73984 and WD74040
Record Refutes Allegations
Sufficiency of charging instrument is a matter for direct appeal and not for post-conviction relief. Record refuted movant's allegation that he did not understand the range of punishment possible and so defeated his argument that his plea was not knowing, voluntary, and intelligent. Also, movant did not allege that proper understanding would have turned him against pleading guilty. Nothing required circuit court to advise movant that he could not withdraw his guilty plea, when State neither made a sentencing recommendation nor agreed to non-opposition of movant's suggestion, because no reliance on such representation induced guilty plea.
RALPH ANTHONY BARRY, a/k/a ANTHONY R. BARRY, a/k/a RALPH BARRY, Movant-Appellant vs. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD31653
Circuit court ruled motion untimely, so appointed counsel filed no amended motion. But motion to re-open alleged that timely filing and mishandling by circuit court led to untimely recording of date filed. Those allegations stated a claim for abandonment by counsel. Denial of motion to re-open reversed and remanded for hearing to determine whether motion was untimely filed or recorded.
MARK D. VOGL, Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD32097
Change of Judge is Strategic Matter
Public defender's caseload and lack of training opportunities did not per se establish ineffective counsel, especially over evidence of counsel's practical knowledge. Movant did not show that trial counsel was ineffective for failing to investigate mental health issues because movant showed neither that trial counsel had any reason to investigate nor that investigation would have found anything helpful. “Where personality disorders do not affect cognitive abilities, their mitigating value is doubtful.” Whether to file a motion for change of judge was a strategic matter with which movant agreed. Rule on disqualification of judge does not apply in post-conviction proceedings but due process does. Allegations that judge knew movant's grandfather did not show bias against movant. Whether to offer an instruction reminding jurors that no adverse inference may arise on a defendant's decision not to testify was a strategic matter, with which movant agreed, and from which movant showed no prejudice. Adoption of one party's draft judgment does not show absence of careful consideration.
Kristopher M. Prince vs. State of Missouri
Missouri Court of Appeals, Western District - WD74478
Holdover tenancy is presumed identical to preceding lease. Lease provided for tenant’s right of first refusal, but only for 12 months after expiration of lease term. Term does not include holdover. Holdover is usually year-to-year but parties’ use of only one written extension of one year showed that they intended no more yearly extensions, which supported a finding that lease intended a holdover month-to-month. Evidence of rental payments collected supported a range within which an award of damages for unlawful detainer is affirmed.
The Brittany Sobery Family Limited Partnership, D/B/A Bridgeport Crossing Apartments, Plaintiff/Respondent, vs. Coinmach Corporation, Defendant/Appellant.
Missouri Court of Appeals, Eastern District - ED97800
Net Operating Loss Case Transferred
Amendment to Missouri income tax statute provides that federal taxable income amount may be positive or negative. Whether individual taxpayers may carry over more operating loss on Missouri income tax than they can claim for federal income tax “requires the construction rather than the application of the revenue laws of this state.” Court of Appeals transfers case to Supreme Court.
Jonathan D. and Amanda A. Eilian vs. Director of Revenue
Missouri Court of Appeals, Western District - WD74900
Statute provides that decisions of the Public Service Commission are not subject to collateral attack, at least from outside the Commission, so Commission's ruling on affiliate transaction provision in utility's tariff's collaterally estopped utility's later challenge to tariff's constitutionality.
State of Missouri ex rel., MoGas Pipeline, LLC vs. Public Service Commission of The State of Missouri, Kevin Gunn Chairman, Robert Clayton, III, Jeff Davis, Terry Jarrett, and Robert Kenney, Commissioners
Missouri Court of Appeals, Western District - WD75109
MEEIA Regs, Single-Issue Ratemaking, Okay
Public Service Commission complied with law requiring Commission to respond to comments on proposed rulemaking. Differences in legislation, as originally introduced versus eventually enacted, do not necessarily prove intent of statute. Court construes statute liberally to effect its intent. One statute provides that, when complaint initiates an action on rates, complaint's pleadings do not limit issues, and Commission "may consider all facts which in its judgment have any bearing" on rates, but another statute can, and does, allow a decision on a single issue between general rate actions. Regulations authorizing recovery of amounts not earned because of efficiency programs were within statutory authority. Alternative interpretations do not negate Commission's regulation. Commission correctly concluded that statute did not authorize penalties.
State of Missouri, ex rel, Public Counsel State of Missouri, ex rel., Ameren Missouri State of Missouri, ex rel., Kansas City Power & Light Company and KCP&L Greater Missouri Operations Company vs. Public Service Commission of The State of Missouri Earth Island Institute
Missouri Court of Appeals, Western District - WD74676 and WD74678 and WD74848 and WD74849 and WD74850
Record Supports Award
Labor and Industrial Relations Commission must not substitute its own opinion for an uncontradicted medical expert opinion, but it need not fill in for absent evidence, and may select portions of evidence to find credible. Evidence supported finding on degree of disability.
WILLIE C. CLARK, Claimant-Appellant vs. MISSOURI STATE TREASURER as CUSTODIAN of the SECOND INJURY FUND, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD31644
Liens: Attorney Trumps Medicaid
Lienholders include persons not a party to action. Statutes provide priority of liens on award: first to attorney in full, then to Medicaid in full, from any amount attributable to medical expenses. That result does not reduce the debt due the State, contrary to other statutes; it merely sets a lower priority for the State than for the attorney who secured the award.
John H. Lake vs. Ronald Levy, Director Missouri Department of Social Services
Missouri Court of Appeals, Western District - WD74306