October 18 - October 24 Headings and Summaries prepared by The Missouri Bar   

Civil

No Error in Arguments
Challenge to closing argument made in motion for judgment notwithstanding the verdict, but not made in objection during argument, is subject to plain error review only.  Miscarriage of justice occurs only if argument has no support in evidence and arouses prejudice.  Omission of transcript makes review in light of the entire record.  Reference to collectability, not referring to who would pay, was not prejudicial.  Plaintiff asking jury to put themselves in defendant’s place was not improper personalization.  Unspecified comments get no review because “a point relied on that does not identify a specific error preserves nothing for appellate review.”
Joseph S. Potter, Respondent, vs. Alyssa R. Kley, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED98757

Criminal

Hospital Security is Emergency Personnel
On charge of second degree assault by assaulting emergency personnel, evidence that victim was hospital security guard met the element that victim was emergency personnel, so counsel was not ineffective for arguing otherwise.  "[E]mergency personnel" means any paid or volunteer firefighter, emergency room or trauma center personnel [.]  Motion for post-conviction relief denied. 
Jeffrey L. Bolden vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD75563

Duty Assumed But Neglected Supports Manslaughter Conviction
When appellant sought custody of mentally disabled victim from juvenile court, appellant assumed the duty of caring for victim; and when appellant neglected victim resulting in victim’s death, appellant breached that duty.  Record shows that circuit court found appellant guilty based on her own conduct and not on co-defendant’s conduct.
STATE OF MISSOURI, Respondent, vs. RONDA L. SHROUT, Appellant.
Missouri Court of Appeals, Southern District - SD32334

Rule Did Not Require Disclosure
United States Constitution “requires disclosure of specified exculpatory information” without request, including impeachment evidence, under Brady.  Suspended imposition of sentence is impeachment evidence, but nondisclosure was not prejudicial, because other impeachment of that witness occurred and DNA evidence supported conviction.  Rules require disclosure of specified information requested by the defense, including convictions, and further information on request subject to circuit court approval.  Suspended imposition of sentence is not a conviction, so no violation of rule occurred.  Court of Appeals denies plain error review because “extensive evidence of [appellant’]s guilt” rebuts allegations of manifest injustice or miscarriage of justice.
State of Missouri, Respondent, vs. Johnnie Moore, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99077

DWI

Preliminary Test Excluded
Statute provides that a preliminary breath test is admissible to show only the presence or absence of blood alcohol for probable cause purposes, but not to show the amount of blood alcohol present, whether for inculpatory or exculpatory purposes.   
STATE OF MISSOURI, Plaintiff-Respondent, vs. STEVEN DOUGLAS EISENHOUR, Defendant-Appellant.
Missouri Court of Appeals, Southern District - SD32441

Dismissal Affirmed
In criminal action, statutes provide that evidence of blood alcohol within lawful limit supports dismissal unless State produces certain evidence, like unreliability of test showing that result.  Statute requires substantial evidence, even though it does not say "substantial," to show that blood alcohol test is unreliability.  Evidence of tests' timing and declining alcohol levels was not substantial without evidence explaining what those facts showed about scientific reliability. 
State of Missouri vs. Anthony R. Mignone
(Overview Summary)
Missouri Court of Appeals, Western District - WD75654

No Findings on Probable Cause
Field sobriety tests are not indispensable in determining probable cause to believe that driver was driving while intoxicated and Director of Revenue presented evidence that, if believed, supported probable cause.  But circuit court made no findings on probable cause, though requested.  Rule provides the equivalent of a directed verdict for bench-tried case, except the resulting judgment is on the merits.  Remanded. 
Torry C. Gannon, Respondent, vs. Director of Revenue, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99326

Employment

Rams Arbitration Provision Struck in Part
Writ of mandamus “is a hard and fast unreasoning writ” “to enforce, not to establish, a claim of right; . . . to execute, not to adjudicate.”  Provision in employment contract’s mandatory arbitration clause, designating a specific person as arbitrator, is unconscionable because designee is the Commissioner of the National Football League appointed by employer and other football employers.  That provision constitutes “an irrational and obligatory choice of a potentially biased arbitrator whose decision shall be final, binding, conclusive and unappealable over an impartial and appealable litigation process [,]” so whether the flaw is in the formation of the contract or the procedure it requires, the potential for bias is too great.  Statute provides for court appointment of substitute arbitrator. 
State ex rel., Todd Hewitt, Relator, vs. Honorable Kristine Kerr, Judge, Circuit Court for St. Louis County, Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED100479

Employment Security

Unsuitable Job is Threshold Issue
Statutes provide that Labor and Industrial Relations Commission must rule under all laws applicable to claim.  Those laws include statute providing that claimant may quit work without penalty within 28 days of starting if the job was not suitable.  Suitability was not among the issues decided, though record shows that employer demoted claimant for being less skilled than claimant represented.  Challenging denial on basis of voluntary quit preserves suitability issue.  Record is insufficient for Court of Appeals to determine.  Remanded. 
James Stephenson vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District - WD76162

Credibility Is for Commission
Court of Appeals does not re-weigh evidence that was before the Labor and Industrial Relations Commission. 
Dorsey Stern, Appellant, v. Gregory D. Camfield, DMD, PC, and Division of Employment Security, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99477

Family

Denial of Visitation Supports Change of Custody
“Greater deference is given to the trial court’s judgment in a custody matter than in other matters.”  Statutes favor meaningful continued contact between child and parents, so parent’s willful denial of visitation and attempts to alienate other parent and child, constitutes a substantial change in circumstances supporting change from joint custody to sole custody.  Same evidence supports a finding that modification is in child’s best interests.
Glenn W. Stepan, Sr., Respondent, vs. La Trece Thompson, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99010

Insurance

Failure to Defend Not Raised
In action for equitable garnishment, judgment against insured gave insured's right against insurer to plaintiff, so plaintiff must show that injury was within coverage.  Exclusion from coverage is an affirmative defense.  Exclusion for assault and battery was unambiguous and relieved insurer of liability under policy.  Whether insurer wrongfully refused defense was not raised to circuit court, so it is not before Court of Appeals.  
Gjergji Kotini, Plaintiff/Appellant, v. Century Surety Company, Defendant/Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99520

Juvenile

Evidence Exceeded Petition, New Hearing Required
On petition for State to take custody of child from parents, parents have the right to notice of the facts that will be at issue, and that notice consists of the petition's allegations.  Evidence related to one matter need not be objected to in order to preserve a challenge to its use for another matter.  Circuit court's findings show that it considered evidence, irrelevant to any allegation in petition, for the truth of such evidence and as grounds to change custody. 
In The Interest of: K.S.-W.; C.P.S.; D.B.W. vs. Juvenile Officer; Missouri Children's Division
(Overview Summary)
Missouri Court of Appeals, Western District - WD75753

Post-Conviction

Law Library Not Limitless For Pro Se
Appointment of counsel satisfies defendant’s right to meaningful access to the courts, and circuit court need not provide pro se defendant with unlimited access to a law library.  “[T]he defendant who makes this choice must abide by the consequences of this choice.”  Appellate counsel was not ineffective for deciding not to argue otherwise, nor for objecting to leading questions that did not affect outcome of trial.  Circuit court’s advice on proceeding pro se is a matter for direct appeal, and circuit court’s advice was sufficient for a knowing, intelligent, and voluntary waiver of counsel.  
Paul Garth, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99533

No Group Plea Problem
Transcript duly certified, and not subject to a motion for correction, controls Court of Appeals review.  Excerpt of transcript shows that  counsel interviewed all the witnesses and investigated all defenses.   Context of group plea, though discouraged, does not alter that result.
Stanley Wright, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99364

Probate

No Damages Shown
In trust’s action for breach of fiduciary duty, evidence of damage to a non-party is irrelevant.  Plaintiff trust showed damages in the diminution of its assets but did not show causation by any breach of duty by defendant, so circuit court did not err in granting motion for directed verdict.  “While the Trust maintains it presented “substantial evidence of damages,” we find the Trust failed to point us to any evidence of damage and harm to the Trust due to [defendant]’s alleged breach that was before the jury.  Whether plaintiff showed any breach of duty is therefore moot.  Multifarious point preserves no argument, argument not appearing in point is not preserved, and points not developed are abandoned. 
ROBERT T. MCLEAN IRREVOCABLE TRUST U/A/D March 31, 1999, by LINDA MCLEAN, as Trustee, Plaintiff/Appellant, vs. J. MICHAEL PONDER, Defendant/Respondent.
Missouri Court of Appeals, Southern District - SD31767

Real Estate

Private Nuisance Alleged
Statute provides private action for enforcement of city and county ordinances on land use and zoning.  Petition alleging harm from defendant’s violation of cited provision stated a claim for relief under that statute.  Private nuisance claim lies only against person who has “use of the property at issue, [or] operate[s] the means of alleged encroachment.”  Limited record makes appellate review possible even without citations to the record. 
Mari Bush, Plaintiff/Appellant, vs. City of Cottleville, et al., Defendants/Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99688

Credit Okay For Cash Bid
Promissory note listed appellant and spouse as borrowers, while deed of trust listed spouse as borrower and appellant as non-borrower, which deed of trust expressly addresses by providing that spouse conveyed appellant’s interests.  Later notation of appellant’s name as grantor added nothing to terms already signed, so it did not constitute a material alteration.  Even when deed requires that foreclosure sale shall be for cash, credit is acceptable.  Record negates appellant’s allegation as to sale’s timing.     
Elizabeth Richard, Appellant, vs. Wells Fargo Bank, N.A., and HSBC Bank, USA, N.A., Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED98712

Workers' Compensation

Credibility Is For Commission
Whether work was a substantial factor in claimed injury was subject to conflicting evidence.  Sufficient competent evidence supports decision of Labor and Industrial Relations Commission.  Credibility determination merits deference at Court of Appeals, which does not look behind testimony to evaluate medical basis for expert opinions. 
Dawn Shelly, Appellant, vs. Drury Inns, Inc., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99812 and ED99813

Credibility Is For Commission
Court of Appeals does not re-determine the weight accorded to expert witnesses who testified on percent of disability.
Judith Flack, Respondent, vs. St. John's Mercy Medical Center, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED99711


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