Permit Is Ministerial
On appeal from circuit court’s judgment on agency decision, Court of Appeals reviews agency decision. When applicant for permit meets all qualifications of law, issuance of permit is a ministerial act. Board of Zoning Adjustment’s decision to issue permit for conforming use, subject to conditions requiring an end to other non-conforming but lawful uses, was unreasonable.
Curry Investment Company, MLB Holdings, LLC D/B/A American Pawn and CBS Outdoor, Inc. vs. The Board of Zoning Adjustment of Kansas City, Missouri
Missouri Court of Appeals, Western District - WD75479
No Remand on New Evidence
Statute allows hearsay statement from child victims if, among other things, statement has indicia of reliability. Those statements did not constitute improper bolstering. Objecting to testimony at pretrial hearing, but not at trial, and omitting objection from motion for new trial, does not preserve issue for appeal. Circuit court need not sua sponte require filing of another motion for new trial. Rule provides preliminary hearing on assistance of counsel to determine whether new counsel is necessary for appeal. Newly discovered evidence showed error in victim's testimony only as to date of offense, which constitutes mere impeachment and is unlikely to affect outcome of trial, and so is not grounds for remand. "[I]mpeachment is reason to remand to the trial court to grant a new trial" only in "exceptional circumstances."
State of Missouri, Respondent, vs. Nathan Hannon, Appellant.
Missouri Court of Appeals, Eastern District - ED96915
No Presumption in BAC Test’s Favor
On criminal charge of driving while intoxicated, intoxication is an element, and statutes provide that blood alcohol content of 0.08 satisfies that element. Blood alcohol content of 0.08 is an element in action for driver’s license suspension or revocation. Once test results on blood alcohol content had entered the record without objection, records were not subject to exclusion, even as to statutory 15-minute observation period. Statutory requirement of 15-minute observation period does not make test results inadmissible per se, it constitutes grounds for objection, and goes to the weight of the evidence absent objection. Remanded for circuit court to weigh evidence entered into record without objection.
Anthony Dewayne Collins vs. Director of Revenue, State of Missouri
Missouri Court of Appeals, Western District - WD75214
Maintenance Award Amended
Circuit court awarded nonmodifiable maintenance of limited duration. Limitation of maintenance's duration must stand on evidence of impending change in circumstances, of which there was none. Maintenance of unlimited duration must be modifiable. Judgment awarding nonmodifiable maintenance of limited duration modified to award of modifiable maintenance of unlimited duration and affirmed at modified.
In re the Marriage of John P. McMillian and Susan I. McMillian John P. McMillian, Petitioner/Respondent, v. Susan I. McMillian, Respondent/Appellant.
Missouri Court of Appeals, Eastern District - ED98727
Licensee Need Not Voluntarily Disclose to Prospective Employer
Substantial and competent evidence supported a finding that physician’s performance was impaired by alcohol-induced hallucinations, and statute allows discipline for off-duty conduct that causes absenteeism from work. “[T]he Board does not have to wait to first determine that a member’s professional skills are affected by the alcohol consumption before it takes action to prevent harm to the unsuspecting public, staff members, or colleagues.” No professional duty required appellant to initiate a disclosure to prospective employer that alcohol addiction caused his departure from previous employer. Remanded to licensing agency to reconsider degree of discipline.
John D. Merwin, II, M.D. vs. State Board of Registration For The Healing Arts
Missouri Court of Appeals, Western District - WD75508
Airplane Product Liability Case Discussed
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. Statute provides that settlement with joint tortfeasor reduces award, but is an affirmative defense, requiring pleading and proof not offered. 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. Evidence supported a submissible case that airplane parts were defective when sold and caused crash. Evidence of safety certification rebutted no allegation, so circuit court properly excluded it, and that evidence did not preserve argument that safety certification established non-defective condition. Curative instruction remedied plaintiffs' reference to incidents not sufficiently similar to be admissible in evidence. 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 supported compensatory damages awarded and circuit court did not err in denying remittitur. Defense comments on punitive damages claim supported a "fair retort" from plaintiffs as to Tort Victims' Fund. Punitive damages had clear and convincing evidence that defendant knew of defect so circuit court erred in granting judgment notwithstanding the verdict.
Susan Delacroix, et al., Respondent/Cross-Appellants, vs. Doncasters, Inc., Appellant/Cross-Respondent.
Missouri Court of Appeals, Eastern District - ED97375
Award of No Damages for Pain and Suffering Reversed
On undisputed evidence of pain and suffering, circuit court abused its discretion in awarding no damages for pain and suffering. Parent-child relationship is not, alone, basis for vicarious liability. Plaintiffs did not show master-servant relationship and so established no recovery on theory of respondeat superior. Coming-and-going rule exemption from respondeat superior theory applies to injuries that employee causes on the way to, or from, work. Dual purpose doctrine exception to coming-and-going rule makes employer liable if employee was also performing service for employer on way to or from work.
Donald J. Meier and Kathleen Meier, Plaintiffs/Appellants/Cross-Respondents, vs. Jonathan D. Schrock, Defendant, and David E. Schrock, Defendant/Respondent/Cross-Appellant.
Missouri Court of Appeals, Eastern District - ED98728
No New Trial After Guilty Plea
After sentencing on guilty plea, challenge to subject-matter jurisdiction or sufficiency of charging instrument is by direct appeal, and challenge to voluntariness of plea or legality of sentence is by motion for post-conviction relief. No rule allows new trial after guilty plea so circuit court should deny the motion rather than treat it as a motion for post-conviction relief. But circuit court denied the motion, which is the correct result, so Court of Appeals affirms.
State of Missouri vs. Antonio Onate
Missouri Court of Appeals, Western District - WD73778