No Appeal On Partial Summary Determination
Circuit court’s certification of partial judgment for appeal does not bind Court of Appeals. Disposition of one claim, out of several based on “the same set of facts and transactions” that “are ‘inextricably intertwined’ with the discrimination theories that remain pending [,]” is not final for appeal. Dismissed.
Sandy Duncan vs. Missouri Alliance for Children and Families, et al
Missouri Court of Appeals, Western District - WD74663
No Privilege Against Garnishment Interrogatories
Consent judgment was no mere contract and was definite enough for collection by garnishment. Garnishment statute requires information from respondent’s debtor, including attorney holding client funds. When client funds in lawyer’s possession are subject to third party rights, rule requires lawyer to give notice. Lawyer’s duty of confidentiality does not establish attorney/client privilege against garnishment interrogatories. “[I]n every case where the disclosure of information is objected to on the basis of the attorney-client privilege, the party asserting the burden must demonstrate that the privilege in fact exists, and that the nature of the requested disclosure will violate the privilege in light of the specific facts and circumstances involved.” Attorney/client privilege applies only to legal matters, which do not include fee arrangement.
State of Missouri, ex rel Chris Koster, Missouri Attorney General vs. Hortense Cain
Missouri Court of Appeals, Western District - WD74734
Dismissal Over Settlement Was Premature
To enforce settlement requires clear, convincing and satisfactory evidence. Like any other claim or defense, such evidence may come before the tribunal on the pleadings, by summary judgment, or by evidentiary hearing. Whether settlement related to mass lay-offs also applied to pending discrimination claim was material and in dispute, so circuit court should have resolved the dispute with an evidentiary hearing before granting motion to dismiss. “[T]he strength of our judicial system lies not in its efficiency but in adhering to procedures that not only do justice but do so in a manner that engenders, to the extent possible, confidence that justice was done.”
Jennifer J. Jones vs. Wells Fargo Auto Finance, LLC and Amy Laffoon
Missouri Court of Appeals, Western District- WD74558
Filing Complaint Tolls Time Limit
Statute provides that only information or indictment initiate felony prosecution, but statute tolls time limitation with filing of complaint. But nothing in statute states that filing of complaint starts a felony prosecution. Therefore, statute does not violate constitution.
State of Missouri, Appellant vs. Grant L. Mixon, Respondent. (consolidated with) State of Missouri, Appellant vs. Jeffrey D. Anderson, Respondent.
Missouri Supreme Court - SC92230 conslidated with SC92450
Object Appeared To Be A Dangerous Instrument
Isolated and unintentional mention of appellant's parole officer did not require mistrial when defense asked only for a limiting instruction. Appellant showed no error in circuit court's decision to take no other corrective action sua sponte. Victim testified that appellant stuck a firearm or taser through victim's car window, though it was too dark to see which one clearly. Victim's behavior was consistent with his fear of dangerous weapon, so evidence supported the finding of "what appears to be a dangerous instrument" to show robbery in the first degree.
STATE OF MISSOURI, Respondent, vs. JOHN DAVID SIMRIN, Appellant.
Missouri Court of Appeals, Southern District - SD31268
Knowledge Shown For Child Endangerment
Court of Appeals presumes that finder of fact believed presumptions that support conviction rather than those that do not. Statute defining child endangerment does not require that defendant knows that he creates a risk to child, only that he "knowingly acts in a manner that creates a substantial risk" to child. Totality of circumstances supported a finding that appellant knew he was neglecting children's health and safety.
State of Missouri vs. Danial Morgan Rinehart
Missouri Court of Appeals, Western District - WD72587
Incomplete Transcript, New Trial
Recording machine was off during most of trial, making appellate review of points relied on impossible. Appellant used due diligence to corect the record's deficiency but suffered resulting prejudice nonetheless. "Due process and fundamental fairness require that the State ensure the right of the accused to have a transcript of his testimony or, at least, a stipulation as to the specific content of his testimony below. Here, we have neither."
State of Missouri vs. Arnold Stephen Barber
Missouri Court of Appeals, Western District - WD74279
Commercial Reasonableness Is Question of Fact
Statute sets forth foundation for admitting business records into evidence. Presence of one business’s record in another business’s files is not enough, but sponsor’s personal knowledge of specific item’s preparation is not necessary. Objection to exhibit generally, as lacking of foundation, preserves no issue for review. As to testimony on commercial reasonableness, absence of objection at trial, and absence of exhibit from record on appeal waive challenge to sufficiency. Court of Appeals will “presume that [missing exhibit] contained evidence from which the time and place of the sale could be gleaned” and “contained documents that [witness] was qualified to authenticate.”
FORD MOTOR CREDIT COMPANY LLC, Plaintiff-Respondent, vs. DAVID HARRIS, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD31568
Allegations Did Not Require Guardian ad Litem
Statute requires appointment of guardian ad litem only on express allegations of abuse that motion to modify, expressing concern, did not include. Statute confines ruling on modification to instant action and record shows no breach of that standard. Admitted substantial and continuing changes in circumstances supported modification of parenting schedule. Award of significant time to appellant defined her as a joint custodian.
Chester Joe Wilmes Querry vs. Stephanie Jean Querry
Missouri Court of Appeals, Western District - WD74342
Firefighter Residency Release Okay
Statute provides that charter city cannot make firefighters reside in city after seven years. Statute did not violate equal protection because a “state of facts can be reasonably conceived that would justify” its classifications and no suspect classification is at issue. Description of city, by school district accreditation, did not violate constitutional bar on special laws because any city could grow into and out of that description, and description was not “drawn so narrowly that ‘the only apparent reason for the narrow range is to target a particular political subdivision and to exclude all others’ [.]” Restriction on residency requirement did not violate constitutional grant of charter authority because residency is not among the “powers, duties or compensation of firefighters.”
City of St. Louis, Respondent/Cross-Appellant, Francis G. Slay, et al., Respondents vs. State of Missouri, Appellant/Cross-Respondent.
Missouri Supreme Court - SC92159
Probationary Teacher's Term Not Cumulative
Teachers Tenure Act provides no property right in employment for probationary teacher, defined by years of service. Years of service must be "successive," which means consecutive and uninterrupted. Intermittent service does not tack. Form letter referencing both probationary and tenured teachers did not grant tenure. Statutes bar hiring a relative of school board member but member's vote was not needed; related member abstained and other voted unanimously. On age discrimination claim, Missouri uses usual summary determination procedure and not federal burden-shifting analysis. Conclusory allegations raise no genuine dispute to stop summary judgment. "In self-describing his technology challenges as "an age related issue," [appellant] confesses the very type of prejudice that discrimination laws aim to remedy. Had his supervisors so spoken, [appellant] might cite this as evidence of age discrimination, but he cannot bootstrap his own age and ability prejudices into a claim against District."
JAMES O. HILFIKER, Appellant, vs. GIDEON SCHOOL DISTRICT #37, Respondent.
Missouri Court of Appeals, Southern District - SD31679
Change In Treatment, Award Of Costs, Discussed
Statutes provide that employer may be ordered to pay for continuing treatment, for which need flows from work injury, and that treatment must change if it threatens life, health, or recovery. Claimant showed need for pain medications flowing from work injury. Substantial and competent evidence did not support a finding that claimant had no need for two psychiatric medications. Remanded to determine whether employer had reasonable grounds for its position and to consider an award of costs.
Lynda Noel, Appellant, vs. ABB Combustion Engineering, Employer/Respondent, and National Union Fire Ins. Co., Insurer/Respondent, and Treasurer of Missouri as Custodian of Second Injury Fund, Respondent.
Missouri Court of Appeals, Eastern District - ED98446