Appellate

Validity of Expired Lease is Moot
During declaratory judgment action over validity of land leases, lessors received all amounts due and sold land.  Circuit court found that sale deprived lessors of interest in leases.  Failure to challenge that ruling allows the ruling—and the judgment—to stand.  Pending appeal, leases expired, and validity of expired leases is moot.  Damage award for filing a frivolous appeal is drastic, and Court of Appeals exercises its discretion against it.
Strcue, Inc. vs. Steven Christopher Potts and Lawrence C. Potts, Jr., and Opal Potts
(Overview Summary)
Missouri Court of Appeals, Western District - WD74572

Construction

Payment Bond Claim Rejected
Statutes protect subcontractors depending on the land they improve:  for public property a payment bond; and for private land a mechanic's lien.  Project on private land, for private landowner's benefit, was a private project.  Subcontractor's access to it by State permit, and tangential work on public right of way, did not make it a public project for public works payment bond.  Associated permit surety bond secured subcontractor's promise "not to destroy any trees or shrubs along the right-of-way without the District Engineer’s approval and only to install facilities and structures along and within the right-of-way with the permission of the District Engineer" did not constitute a payment bond securing payment for subcontractor.
Missouri Department of Transportation ex rel. On Point Contractors, LLC, Plaintiff/Appellant, v. Aura Contracting, LLC, Western Surety Company and Missouri Highways and Transportation Commission, Defendants/Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED98458

Corporations and Other Legal Entities

Derivative Action Sufficiently Pleaded
On motion to dismiss for failure to state a claim, whether plaintiff will be able to prove allegations is irrelevant.  Mixture of conclusory statements with allegations does not negate sufficiency of allegations if they are of sufficient specificity.  Rule’s requirement for derivative action, that petitioner first makes demand of directors and stockholders, is satisfied if such demand is futile, which petition pleaded.  Making demand of stockholders is futile when conduct at issue was unlawful because stockholders cannot ratify an unlawful act.  Petition also pleaded that petitioners will “adequately represent the interests of all shareholders.”
NEW ENGLAND CARPENTERS PENSION FUND, Derivatively on behalf of Leggett & Platt, Inc., Plaintiff-Appellant, vs. DAVID S. HAFFNER, KARL G. GLASSMAN, MATTHEW C. FLANIGAN, ERNEST C. JETT, HARRY M. CORNELL, JR., FELIZ E. WRIGHT, ROBERT TED ENLOE III, RICHARD T. FISHER, JUDY C. ODOM, MAURICE E. PURNELL, JR., RALPH W. CLARK, and MICHAEL A. GLAUBER, and LEGGETT & PLATT, INC., Defendants-Respondents.
Missouri Court of Appeals, Southern District - SD31320

Criminal

Possession Shown
On charge of felon in possession of a firearm, record included evidence that appellant was sole tenant of house with locked safe containing guns, and that a neighbor had recently moved guns at appellant's request.  Such evidence supported a finding that appellant had at least joint control over safe.  Jury may believe some parts of witness's testimony and disbelieve other parts of same witness's testimony. 
STATE OF MISSOURI, Plaintiff-Respondent, vs. RANDALL SCOTT LUDEMANN, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD31652

Inferences Support Conviction
Evidence, including victim's statements and eyewitness account of victim's mother, supported an inference that appellant touched victim's genitals and did so for sexual gratification.  Circuit court did not err in allowing video interview, in rebuttal to appellant's testimony, despite overlap with State's case in chief.  When interviewee is present at trial and testifies, no Confrontation Clause arises.  Constitutional issues, and others, not raised in circuit court are waived.  Plain error greater than prejudicial error: appellant "would need to show that a new trial would likely result in acquittal" without which miscarriage of justice or manifest injustice will result.
STATE OF MISSOURI, Respondent, vs. DEREK B. LEWIS, Appellant.
Missouri Court of Appeals, Southern District - SD31553

Employment Security

Misconduct Shown
Claimant line cook had notice of restaurant’s break policy and no-smoking policy, and warnings, but went on an unauthorized break from line to smoke and make a phone call.  That conduct showed willful and wanton disregard for reasonable policies and constitutes misconduct connected with work.
James Sullivan vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD74763

Evidence

Prejudice No Bar
Statute provides that possession of a weapon is evidence of possessing drugs, and such evidence gave a full description of circumstances and explanation for police conduct.  Once defense elicited testimony that other persons at the scene said they were there to buy drugs, a matter not admissible on direct, further potential prejudice did not bar State's cross-examination.  Statute does not limit victim impact testimony to direct victims of crime charged, and admission of testimony from community representatives was not plain error. 
State of Missouri, Respondent, v. Yulris L. Watson, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97303

Family

Petitioner Pays for Genetic Test
Statute, providing action to set aside judgment of paternity, requires petitioner to pay for genetic testing.  “There is nothing ambiguous about this directive.”  Circuit court had no authority to require any other person to pay, even temporarily for a petitioner in forma pauperis, for the test.  Statutes governing initial determination of paternity, and statutes authorizing assessment of costs against State, include no mention of genetic test.  Temporary writ of prohibition made absolute.
State ex rel. State of Missouri, Department of Social Services, Family Support Division vs. The Honorable Patrick W. Campbell
(Overview Summary)
Missouri Court of Appeals, Western District - WD75408

Personal Injury

Public Official's Defamation Verdict Reversed
Elements of a defamation claim against a public official include actual malice.  "The test for actual malice is not whether a reasonably prudent person would have had serious doubts as to the truth of the publication, but whether the defendant in fact held such doubts."  Statements were erroneous, but declarant need not believe public official's denial. Public official did not show that defendant had any serious doubt as to statements and so made no submissible case.
Thomas Bauer, Plaintiff-Respondent, vs. 7-Eleven, Inc. and Randy C. Munton, Inc., Defendants-Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED97989

Termination of Parental Rights Reversed
To terminate parental rights requires clear, cogent and convincing evidence of statutory grounds.  To terminate for neglect, evidence of past conduct must show likelihood of future conduct.  To terminate for failure to rectify, mother’s dependence on grandmother is not proof, drug history included recent rehabilitation, and nothing showed that further services are futile.  Custody remains unaltered, but termination is reversed. 
IN THE INTEREST OF P.J., a minor, S.L.J., Appellant, vs. THE GREENE COUNTY JUVENILE OFFICE, Respondent.
Missouri Court of Appeals, Southern District - SD31955

Post-Conviction

Timely Filing in Dispute
Motion included allegations to excuse untimely filing.  Circuit court did not determine whether facts supported any exception to timely filing requirement.  Court of Appeals remands for that determination. 
Derick Miller vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD74785