Judgment Not Final
Local ruling provided that faxed counterclaim was filed when received—the day before consent judgment issued without addressing counterclaim. Counterclaim outstanding rendered consent judgment less than final.
Doster, Guin, James, Ullom, Benson & Mundorf, LLC, Respondent, vs. Tim Haverty, Appellant.
Missouri Court of Appeals, Eastern District - ED98175
Overhead Not Recoverable With Profit
Record, including admission of buyer, supported a finding that buyer materially breached contract. Damages equal only lost profit minus down payment. Testimony of witness with 30 years’ experience, as to how much seller would have profited from the deal, supports a finding of lost profit “with reasonable certainty.” Seller may also recover overhead that it put into contract, and expected to recover from contract price, but “[a] party cannot recover both its lost profits and the overhead expenses that are tied to the production of that profit.” Judgment modified and affirmed as such.
WILLIAMS CONSTRUCTION, INC., Plaintiff-Respondent, v. WEHR CONSTRUCTION, L.L.C., Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD31542
Failure to Update Sex Offender Registration Shown
Offense of failing to update sex offender registration has the following elements: “(1) that [defendant] had been convicted of an offense that required him to register as a sex offender in [relevant] County; (2) that [defendant] changed his registered residence; and (3) that [defendant] knowingly failed to inform the [relevant] County Sheriff's Department of his change in residence within three business days.” Registration forms and testimony showed that appellant had been convicted of an offense that required him to register as a sex offender. To show change of address does not require State to show that appellant had no intention of returning. Changing registration as to work address does not negate knowingly failure to change residential address.
State of Missouri vs. Keith A. Younger
Missouri Court of Appeals, Western District - WD74675
Time to Call Attorney Ends with Call
Statutes provide driver with period to consult with a lawyer before deciding whether to take a chemical test. Period lasts 20 minutes, or whenever driver abandons attempt to contact, whichever happens first. Circuit court may imply abandonment from evidence without explicit statement from driver.
James Kevin Green vs. Director of Revenue
Missouri Court of Appeals, Western District - WD74939
No Jurisdiction Over Illinois Custody Dispute
Only if motion to dismiss argues failure to state a claim are petition’s facts assumed true; if motion charges lack of jurisdiction, no such assumption applies, and the issue is one of proof. Proof includes, according to Act, court documents from other jurisdiction. Under Uniform Child Custody Jurisdiction and Enforcement Act, factors determining whether Missouri court can modify custody ruling of another State include jurisdiction, convenience of forum, residence, other significant connections, whether “evidence concerning the child's care, protection, training and personal relationships” is available there, and court determinations. If Missouri court cannot determine custody, it cannot modify Illinois court’s custody determination. Because Illinois had exclusive and continuing jurisdiction, provisions related to simultaneous proceedings did not apply.
Sherif Hassan Al-Hawarey, Respondent, vs. Cindy Ortega Al-Hawarey, Appellant.
Missouri Court of Appeals, Eastern District - ED97993
Modification Judgment Not Final
Statute requires any judgment determining custody shall include a parenting plan. Judgment stated that it adopted attached plan, but attached no plan, and record does not describe plan. Appellant seeks review of issues determined by adoption of plan. Absence of plan means that judgment resolved less than all issues.
John M. Kohl vs. Jill M. Kohl
Missouri Court of Appeals, Western District - WD74592
No Relief from Plea Bargain
Pleading guilty as part of plea bargain waives all claims of ineffective assistance of counsel except as to conduct that affected volition and knowledge of plea. Record refutes movant’s claim that trial counsel did not apprise him of plea bargain terms.
RICKY RAY BARNES, Appellant, vs. STATE OF MISSOURI, Respondent.
Missouri Court of Appeals, Southern District - SD31921
Quiet Title Judgment Was No Defense to Unlawful Detainer
Statutes provide a limited action in unlawful detainer that addresses only the immediate right to possession. “[E]xplicitly [,] “[t]he merits of the title shall in nowise be inquired into, on any complaint which shall be exhibited” for unlawful detainer. Equitable issues may be a defense in action for foreclosure, but are not a defense in unlawful detainer after foreclosure.
US Bank, NA, Respondent, vs. Clinton Watson, Appellant.
Missouri Court of Appeals, Eastern District - ED97784
Occupational Disease Constitutes Injury
Statutes provide that Second Injury Fund is liable when claimant suffers further injury, defined to exclude occupational disease, except when it “was the prevailing factor in causing both the resulting medical condition and disability.”
Kathleen Peters, Respondent, vs. Treasurer of Missouri as Custodian of Second Injury Fund, Appellant.
Missouri Court of Appeals, Eastern District - ED98300
Posthumous Agreement Okay
Statutes provide that Commission may amend an award, and that Commission may commute award into a lump sum. Commission must determine award’s commutable value when it commutes award sua sponte. But Commission must approve any settlement of any dispute, including one made in excess of commutable value, if the settlement neither waives nor contravenes the parties’ rights and claimant or dependents enter it voluntarily.
Larry Nance, Deceased; Sherry Nance, Personal Representative vs. Maxon Electric, Inc.
Missouri Court of Appeals, Western District - WD74942