Missouri Supreme Court cases so far this year are numerous and weighty

DNR Order Juvenile Custody Authority

Where the Children’s Division challenged a juvenile court’s order requiring it to appoint someone to make extraordinary medical decisions for a baby who was brain dead, arguing that such authority belongs to the juvenile court, the judiciary has the responsibility to authorize end-of-life medical decisions for children under its jurisdiction, so the juvenile court abdicated its responsibility by directing the agency to appoint a decision maker.

Judgment is reversed.

In the Interest of L.A.B. (MLW No. 68626/Case No. ED102737 – 7 pages) (Missouri Court of Appeals, Eastern District, Van Amburg, J.) Appealed from circuit court, St. Francois County, Martinez, J. (Jeremiah J. Morgan and John M. Williams (Guardian Ad Litem) for appellant) (Tammy Steward and Kenneth A. Seufert and Scott J. Schrum for respondents).

ERISA Injunctive Relief Pharmacy Benefits

Where plaintiff pharmacies brought an action claiming that Express Scripts, a pharmacy benefits manager, was denying compound drug claims in violation of ERISA’s procedures for claims regulation, the district court properly denied the plaintiffs’ claim for injunctive relief because plan beneficiaries have an adequate remedy at law, and the grant of injunctive relief would disrupt plan administration and conflict with ERISA policy. Future procedures “It is telling that Plaintiffs cite no reported decision, and we have found none, where a circuit court has upheld a private plaintiff’s claim for injunctive relief mandating the future procedures an ERISA plan must follow to comply with the Claims Regulation.”

Preliminary injunction denied.

Grasso Enterprises, LLC v. Express Scripts, Inc. (MLW No. 68649/Case No. 15-1578 – 11 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, Eastern District of Missouri, Autrey, J. (Richard J. Quadrino, Melville, New York, argued for appellant; Richard J. Quadrino, Harold Joseph Levy and Eugene S. Pagano appeared on the brief) (Christopher A. Smith, St Louis, argued for appellee; Thomas McKee Dee, Christopher A. Smith and Elizabeth Ann Bozicevic appeared on the brief).

License Fee Office Return To State Standing

Where the state challenged a grant of judgment on the pleadings to a plaintiff, who was awarded a contract by the state to operate a license fee office and the plaintiff later sought declaratory and injunctive relief challenging the procedures used to award the contract when after several renewals he lost the bid, the judgment is reversed and vacated because the plaintiff did not establish standing to challenge the inclusion of a return-to-state provision in the state’s request for proposal, and the trial court erroneously found that the inclusion of the provision in the state’s request was unlawful.

Judgment is reversed; vacated.

Lee’s Summit License, LLC v. Office of Administration (MLW No. 68684/Case No. WD78694 – 23 pages) (Missouri Court of Appeals, Western District, Martin, J.) Appealed from circuit court, Cole County, Green, J. (Amanda J. Montee and James A. Montee, St. Joseph, for respondents) (Nicole M. Bock and James Leyton, Jefferson City, for appellants).

Medicaid Overpayment Inadequate Hearing Due Process

(1)Where appellant challenged a trial court judgment affirming the state’s claim for overpayment of Medicaid benefits, the appellant’s argument that the state could only collect overpayments through adjusting future benefits was not ripe for review since the state had not yet attempted to execute on the claim, and the appellant’s challenge to the state’s au-thority to collect the funds without proving any misrepresentation on the part of the appellant also failed because the state is not required to show misconduct by the recipient for it to collect overpayments.

(2)Where an adverse action notice to an appellant in an overpayment-of-Medicaid-benefits case only stated the amount owed and the hearing procedures did not give the appellant a reasonable time to examine evidence against her and the state failed to provide the basic information for appellant to dispute the state’s evidence, the procedures violated the appellant’s due process rights and she was entitled to a new hearing.

Dismissed in part; affirmed in part; reversed and remanded.

Dolic v. Department of Social Services (MLW No. 69323/Case No. ED103726 – 16 pages) (Missouri Court of Appeals, Eastern District, Sullivan, J.) Appealed from circuit court, St. Louis County, Reno, J. (Lucas Caldwell-McMillan for appellant) (Chris Koster and Jennifer O. Addadi for respondent).

Preemption Surface Transportation Board Flood Damage

Where farm owners claimed a railroad’s maintenance of an embankment caused the loss of their property, the Surface Transportation Board properly determined that the farm owners’ state-law claims would unreasonably burden or interfere with rail transportation, and the board did not err in finding that the Interstate Commerce Commission Termina-tion Act preempted the farm owners’ state-law claims

Petition for review denied.

Tubbs v. Surface Transportation Board (MLW No. 68619/Case No. 14-3898 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Smith, J.) Petition for review of an order of the Surface Transportation Board (Robert Edward Murphy, St Joseph, for petitioners) (Theodore Leonard Hunt, Washington, D.C., for respondents, and David Coburn, of Washington, D.C., for intervenors).

Sales Tax Dance School Fees Place Of Amusement

Where a dance school challenged a decision by the Administrative Hearing Commission that it was liable for sales tax and use tax, the commission’s judgment is affirmed because amusement or recreational activities are more than a de minimis portion of its business activities. De minimis Dissenting opinion by Draper III, J.; “I would find that amusement activities at School of Dance do not comprise more than a de minimis part of the business activities of the loca-tion. Accordingly, School of Dance is not a place of recreation under the sales tax law, section 144.020.1(2). I would reverse the decision of the Administrative Hearing Commission.”

Commission affirmed.

Miss Dianna’s School of Dance, Inc. v. Director of Revenue (MLW No. 68667/Case No. 68667/Case No. SC95102 – 12 pages) (Supreme Court of Missouri, Fischer, J.; Brecken-ridge, C.J., Wilson and Russell, JJ., concur; Draper, J., dissents in separate opinion filed; Stith and Teitelman, JJ., concur in opinion of Draper, J.) Petition for review of a decision of the Administrative Hearing Commission (Anthony L. Gosserand and Elizabeth E. Patterson, Kansas City, Missouri, for appellant) (Evan J. Buchheim and Thomas A. Houdek, Jeffer-son City, for the director).

Social Security Denial Of Benefits Conversion Disorder

Where a claimant of Social Security disability benefits unsuccessfully challenged her denial of benefits in district court, the claimant suffered from conversion disorder in which a person actually experiences symptoms without a known medical cause, and the case is remanded for further consideration because the administrative law judge did not address the primary features of the condition and the extent to which the claimant actually perceived symptoms and the extent to which conversion disorder rather than a lack of credibility might explain the absence of objective medical support for her symptoms.

Remanded.

Nowling v. Colvin (MLW No. 68815/Case No. 14-2170 – 20 pages) (U.S. Court of Appeals, 8th Circuit, Melloy, J.) Appealed from U.S. District Court, Western District of Missouri, Fenner, J. (John Vohs and Pamela S. Vohs, Savannah, for appellant) (Kevin B. Murphy, Kansas City, Missouri, for appellee).

Social Security Denial Of Benefits Heart Failure

Where the family of a man who died of heart disease challenged the denial of his application for Social Security disability benefits, substantial evidence supported the administrative law judge’s finding that the man’s impairment did not meet the listing for chronic heart failure, and the ALJ did not err in according limited weight to a doctor’s letter that supported the claimant’s application for benefits since the doctor did not identify specific functional limitations, and the ALJ also properly applied medical evidence to determine the claimant’s residual functional capacity.

Pattern of denial Dissenting opinion by Bright, J.: “Having reviewed many social security disability cases regarding heart failure, a pattern has evolved whereby ALJs deny benefits to individuals be-cause they are capable of ‘light work’ or ‘sedentary work’—largely relying on the individual’s ability to complete certain activities of daily living. Such findings have the unfortunate result of denying benefits to individuals with heart failure unless the evidentiary record shows the individual is totally bedridden. See Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999) (‘[A] claimant need not be totally bedridden to be disabled’). Denying benefits to individuals simply because they are not bedridden is inconsistent with the purpose of the So-cial Security Act and I behoove ALJs to consider the impact of forcing individuals with severe heart failure to continue to work.”

Judgment is affirmed.

Stoner v. Colvin (MLW No. 68927/Case No. 15-1030 – 26 pages) (U.S. Court of Appeals, 8th Circuit, Wollman, J.) Appealed from U.S. District Court, Southern District of Iowa.

Taxation Sales Tax Refund Donuts

Where a donut store, which operated more like a restaurant than a donut store, sought a refund for taxes paid on the retail sales of food, donuts are food prepared for immediate consumption, so the store failed to prove that not more than 80 percent of its gross receipts came from the sale of food prepared for immediate consumption, and the Administrative Hearing Commission properly found that the taxpayer was not entitled to the lower tax rate under Section 144.014.

Judgment is affirmed.

Krispy Kreme Doughnut Corporation v. Director of Revenue (MLW No. 69140/Case No. SC95181 – 17 pages) (Supreme Court of Missouri, Fischer, J.; all concur) Petition for review of the Administrative Hearing Commission (Edward F. Downey and Carole L. Iles, Jefferson City, for appellant) (Jeremiah J. Morgan and Roger Freudenberg, Jefferson City, for respondent).

Taxation Use Tax County Sales Tax

Where a county emergency services board sought a proportional share of the county’s use tax revenue in the same amount that it was receiving from the county’s sales tax reve-nue, the trial court properly denied the request because the relevant statute does not direct third-class counties regarding disbursement of county use tax revenue, so it is within the county commission’s discretion.

Judgment is affirmed.

Macon County Emergency Services Board v. Macon County Commission (MLW No. 69010/Case No. SC95003 – 7 pages) (Supreme Court of Missouri, Russell, J.; all concur) Appealed from circuit court, Macon County, Tucker, J. (Deborah J. Neff, Macon, for appellant) (Ivan L. Schraeder and Jamie N. Manier, St. Louis, for respondents).

Taxation Use Tax Refund Catalogs

Where the Director of Revenue challenged a decision by the Administrative Hearing Commission that found an office supply company was entitled to a refund of use taxes that it paid on catalogs that it printed and mailed outside of Missouri, the commission’s grant of the refund was proper because the taxpayer did not “use” the catalogs in Missouri and did not exercise any right or power over them in Missouri.

Judgment is affirmed.

Office Depot, Inc. v. Director of Revenue (MLW No. 69008/Case No. SC95029 – 10 pages) (Supreme Court of Missouri, Stith, J.; all concur) Petition for review of a decision of the Administrative Hearing Commission (James R. Layton, Jefferson City, for appellant) (Marc H. Ellinger, Jefferson City, for respondent).

Taxation Use Tax Refund Manufacturing

Where the Director of Revenue challenged a decision by the Administrative Hearing Commission that a corporate taxpayer was entitled to a use tax refund for its sales of hard-ware and software to a credit card company for its use in processing credit and debit transactions, the credit card company’s use did not constitute “manufacturing” under Section 144.054.2, so the exemption was inapplicable, and the judgment is reversed.

Judgment is reversed.

IBM Corporation v. Director of Revenue (MLW No. 69011/Case No. SC94999 – 12 pages) (Supreme Court of Missouri, Stith, J.; all concur) Petition for review of a decision of the Administrative Hearing Commission (Jeremiah J. Morgan and James R. Layton, Jefferson City, for appellant) (Booker T. Shaw, St. Louis, and James B. Deutsch, Marc H. El-linger and Stephanie S. Bell, Jefferson City, and Scott A. Browdy, Chicago, for respondents).

Taxation Use Tax Service Charge

Where a grain company paid service charges to install a grain conveyor at one of its elevators , the service charges were subject to use tax as part of the sale of tangible personal property, and the grain company did not show that the transaction was subject to an exemption, so the decision of the Administrative Hearing Commission is reversed and remand-ed.

Judgment is reversed and remanded.

Bartlett International, Inc. v. Director of Revenue (MLW No. 69139/Case No. SC95205 – 11 pages) (Supreme Court of Missouri, Russell, J.; all concur) Petition for review of the Administrative Hearing Commission (Jeremiah J. Morgan, Jefferson City, for appellant) (Derek T. Teeter, Jason A. Reschly and Michael T. Raupp, Kansas City, Missouri, for re-spondents).

Authority Arbitration Award Pension-Contribution Program

Where in a dispute between an employer and a union over changes to a pension-contribution program the district court vacated an arbitration award in favor of the union, the arbitrator lacked the authority to decide the issue of the formation of the contract, so the court did not err in vacating the award, but the court erred in granting summary judgment to the employer and rescinding the provision that outlined the program since the employer’s mistake in failing to notice that the final draft of the agreement omitted a cap on hours was due to its own inattention in arm’s length negotiations between sophisticated parties.

Judgment is affirmed in part; reversed in part; remanded.

Silgan Containers Corporation v. Sheet Metal Workers International Association (MLW No. 69052/Case No. 15-1956 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Benton, J.) Appealed from U.S. District Court, Western District of Missouri, Phillips, J. (Donald Aubry, Kansas City, Missouri, argued for appellant) (Raymond M. Deeny, Colorado Springs, Colorado, argued for appellee).

Mandatory Stay Construction Contracts Mechanic’s Liens

Where a general contractor and subcontractors filed mechanic’s liens against the property and the general contractor sought to stay litigation pending the conclusion of an arbitration proceeding, the Federal Arbitration Act mandated a partial stay of the litigation because the general contractor and property owner were subject to an arbitration agreement for all disputes arising under their contract, and they were in the middle of arbitrating claims directly related to the contract, so those claims must be stayed pending arbitration, but the entire litigation was not subject to a mandatory stay under either the FAA or Missouri law, so the appellant could only seek a discretionary stay.

Judgment is reversed in part; affirmed in part; remanded.

Shelter Products, Inc. v. Omni Construction Company, Inc. (MLW No. 68685/Case No. WD78598 – 13 pages) (Missouri Court of Appeals, Western District, Mitchell, J.) Appealed from circuit court, Cole County, Joyce, J. (George A. Uhl and Jessica E. Courtway, St. Louis, for respondent) (J. D. Moore and Heather S. Esau Zerger, Kansas City, Missouri, for ap-pellant).

Motion To Compel Client Service Agreement Opt Out

Where a customer of a tax preparation service exercised his right to opt out of arbitration using the online address in the client serve agreement, all of the customer’s claims fell within the scope of the arbitration provision in the agreement from which the customer opted out, so the trial court’s order denying the motion to compel arbitration is affirmed, and the appellate court does not need to decide the issue of whether the arbitration provision was unconscionable.

Judgment is affirmed.

Lopez v. H&R Block, Inc. (MLW No. 68874/Case No. WD78465 – 12 pages) (Missouri Court of Appeals, Western District, Martin, J.) Appealed from circuit court, Jackson County, Burnett, J. (Norman E. Siegel, Kansas City, Missouri, for respondent) (Jeffrey J. Simon and Robert T. Adams, Kansas City, Missouri, for appellant).

Motion To Compel Waiver Employment Case

Where an employer sought to compel arbitration of a former employee’s retaliation claim, the denial of the motion to compel is affirmed because the employer waived its claim of a right to arbitrate because the employer knew of the existing right to arbitrate, acted inconsistently with that right, and delayed asserting the right, and the employee’s counsel spent more than a year preparing for jury trial, so the employee showed prejudice.

Judgment is affirmed.

Gentry v. Orkin, LLC (MLW No. 69230/Case No. WD79121 – 10 pages) (Missouri Court of Appeals, Western District, Hardwick, J.) Appealed from circuit court, Jackson County, Phillips, J. (Kirk Holman and Kenneth D. Kinney, Kansas City, Missouri, for respondent) (Trina R. Le Riche and Adam T. Pankratz, Kansas City, Missouri, and Jon M. Gumbel, At-lanta, for appellants).

Validity Of Agreement Offer Employment Case

Where a defendant in a wrongful termination case challenged the denial of its motion to compel arbitration, the denial of the motion to compel arbitration is affirmed because the employer’s presentation of documents outlining the arbitration and acknowledging its receipt did not constitute an offer since the documents did not manifest a willingness to enter into a bargain and did not present anything to the employee for her acceptance, and the policy applied whether signed or not.

Judgment is affirmed.

Jackson v. Higher Education Loan Authority of Missouri (MLW No. 69244/Case No. ED103523 – 11 pages) (Missouri Court of Appeals, Eastern District, Page, J.) Appealed from circuit court, St. Louis County, Goldman, J. (Clifford A. Godiner and Timothy J. Sarsfield for appellant) (Vincent A. Banks, III and Laura M. Cole for respondent).

Validity Underlying Contract Severability

Where an auto dealer sought to compel arbitration of a contract dispute over a car sale with a buyer, the buyer’s challenge was based on the validity and performance of the sale contract as a whole and not aimed at the arbitration agreement alone, so the trial court erred when it found the agreement to be void and unenforceable because under FAA law agreements to arbitrate are severable from any underlying contract or agreement.

Vacated; remanded.

Ellis v. JF Enterprises, LLC (MLW No. 68668/Case No. SC95066 – 15 pages) (Supreme Court of Missouri, Wilson, J.; Breckenridge, C.J., Fischer and Russell, JJ., concur; Teitelman, J., dissents in separate opinion filed; Stith and Draper, JJ., concur in opinion of Teitelman, J.) Appealed from circuit court, Jackson County, Grate, J. (Gary J. Willnauer and Deborah F. O’Connor, Kansas City, Missouri, for appellant) (Kate E. Noland, Douglass F. Noland and Jennifer N. Wettstein, Liberty, for respondent).

Discipline Adoption Case Misled Birth Father

Where an experienced adoption attorney, who was representing an unwed mother who wanted to give her child up for adoption, used a “passive strategy” to mislead the birth father who wanted to keep and raise the child, the attorney violated rules of professional conduct including the rule against knowingly offering false evidence, the rule against false statements of material fact, the rule against using means to improperly burden or delay a third person and the rule against conduct prejudicial to the administration of justice, so the attorney is suspended from the practice of law for six months with the execution of suspension stayed subject to two years of probation since he had no prior disciplinary issues in 30 years of practice.

Rule violations

Opinion concurring in part; dissenting in part by Breckenridge, J.: “I agree with the discipline imposed by the majority opinion. I respectfully differ from the majority opinion’s findings and analysis, however, as to the rules violated by Mr. Krigel. While I find that Mr. Krigel violated Rule 4-3.3(a)(3), Rule 4-4.1(a), and Rule 4-8.4(d), I do not believe that Mr. Krigel’s failure to provide factual information to a potential opposing party constituted a violation of Rule 4-4.4(a).”

Disbarment Dissenting opinion by Fischer, J.: “Every attorney licensed to practice law in this state must first take an oath. The third paragraph of that oath provides, “That I will never seek to mislead the judge or jury by any artifice or false statement of fact or law[.]” Every attorney is reminded of this sacred promise, and is required to reaffirm it, each year when they sign their annual enrollment form. Sanford Krigel knowingly violated that oath and multiple rules of professional conduct as explained in the principal opinion. The principal opinion suspends Krigel but stays that suspension and places him on probation. In my view, Krigel’s actions—in misleading both opposing counsel and the circuit court—warrant suspension without leave to reapply for six months, at a minimum, but I would disbar him.”

Suspension ordered.

In Re: Sanford P. Krigel (MLW No. 68712/Case No. SC95098 – 29 pages) (Supreme Court of Missouri, Draper III, J.; Stith and Russell, JJ., concur; Breckenridge, C.J., concurs in part and dissents in part in separate opinion filed; Fischer, J., dissents in separate opinion filed; Wilson and Teitelman, JJ., concur in opinion of Fischer, J.) Original disciplinary pro-ceeding (Alan D. Pratzel, Sharon K. Weedin and Sam S. Phillips, Jefferson City, and Kevin J. Odrowski, Kansas City, Missouri, for the Office of Chief Disciplinary Counsel) (Jacquel-ine A. Cook and David J. Achtenberg, Kansas City, Missouri, for respondent).

Discipline Illegally Obtained Evidence

Where an attorney used information illegally obtained by his client in a dissolution in pretrial settlement negotiations and threatened the opposing attorney during the litigation, the attorney violated Rules 4-4.4(a), 4-8.4(c), 4-3.4(a) and 4-8.4(d), and the court orders indefinite suspension with no leave to apply for reinstatement for at least six months.

Aggravating factors

Dissenting opinion by Fischer, J.: “In my view, Eisenstein should be suspended indefinitely with no leave to apply for reinstatement for 12 months, rather than 6 months. “Despite purporting to consider aggravating and mitigating factors, and further finding there are no mitigating factors in this case but only aggravating factors, the principal opin-ion still concludes the baseline discipline is appropriate. This creates a noticeable disconnect between the principal opinion’s purported process and its ultimate conclusion. While there are no mitigating factors in this case, there are indeed numerous aggravating factors present that justify an upward deviation from the baseline discipline, including: (1) prior disciplinary offenses; (2) a dishonest or selfish motive; (3) a pattern of misconduct; (4) multiple offenses; (5) refusal to acknowledge the wrongful nature of his conduct; and (6) sub-stantial experience in the practice of law.”

Bar member solicitations

Dissenting opinion by Wilson, J.: “I agree with the discipline recommended by the disciplinary hearing panel (“DHP”) for the reasons expressed in Judge Fischer’s dissenting opin-ion. I write separately, however, to address the mistaken impression that it is appropriate for Respondent to solicit communications from members of the bar and judiciary for the purpose of influencing the Court’s resolution of this matter.”

Indefinite suspension ordered

In Re: Joel B. Eisenstein (MLW No. 69006/Case No. SC95331 – 16 pages) (Supreme Court of Missouri, Teitelman, J. : Breckenridge, C.J., Stith, Draper and Russell, JJ., concur; Fischer, J., dissents in separate opinion filed; Wilson, J., concurs in opinion of Fischer, J.; Wilson, J., dissents in separate opinion filed; Fischer, J., concurs in opinion of Wilson, J.) Original disciplinary proceeding (Alan D. Pratzel and Sam S. Phillips, Jefferson City, and Marc A. Lapp, St. Louis, for OCDC) (Alan S. Mandel, St. Louis, for respondent).

Child Support Debt Discharge Order Sanction

Where a bankruptcy court found that the state’s Family Support Division violated debtors’ discharge injunction by attempting to collect on a support debt after the debtors obtained a discharge, the court erred because the discharge injunction does not apply to a domestic support obligation, which is not subject to the Chapter 13 discharge, so the court abused its discretion in finding the division to be in contempt and by awarding attorney’s fees as a sanction.

Attorney’s fees

Dissenting opinion by Saladino, J.: “The bankruptcy court ordered the division to reimburse the debtors for attorney fees spent defending the division’s attempts to collect a debt that had been determined in a contested matter and paid under the Chapter 13 plan. “Clearly, the bankruptcy court had the authority under § 105 and the inherent power to issue such a sanction. Referencing the discharge injunction may have been incorrect; sanctioning a creditor trying to collect a debt that had been paid in full was not. Accordingly, I do not believe the bankruptcy court’s order was an abuse of discretion. I would affirm.”

Judgment is reversed.

State of Missouri v. Spencer (MLW No. 69290/Case No. 15-6030 – 12 pages) (U.S. Court of Appeals, 8th Circuit, Kressel, J.) Appealed from U.S. Bankruptcy Court, Western District of Missouri.

Judgment Lien Avoidance ‘Fixed’ To Residence

Where a judgment creditor challenged an order of the bankruptcy court granting a debtor’s motion to avoid its judgment lien, the judgment is affirmed because the debtor acquired the property interest before the lien arose, the judgment lien fixed after the debtor acquired the interest, and even if the lien was unenforceable, the debtor could avoid the unenforceable judgment lien under Section 522(f).

Judgment is affirmed.

CRP Holdings v. O’Sullivan (MLW No. 68693/Case No. 15-6020 – 10 pages) (U.S. Bankrupty Appellate Panel, Kressel, B.J.) Appealed from U.S. Bankruptcy Court, Western District of Missouri.

Charter School Defendant Sovereign Immunity Wrongful Discharge Suit

Where a bus driver brought a wrongful discharge action against a charter school claiming that she was fired based on her sexual orientation, summary judgment for the school is affirmed because the appellate court holds that for purposes of sovereign immunity charter school are public schools under Chapter 160 and public entities under Chapter 537, and the defendant school did not waive its immunity by procuring insurance coverage as required, so the wrongful-discharge claim was barred as a matter of law.

Judgment is affirmed.

Moore v. Lift for Life Academy, Inc. (MLW No. 68905/Case No. ED102765 – 6 pages) (Missouri Court of Appeals, Eastern District, Van Amburg, J.) Appealed from circuit court, St. Louis City, Dierker, J. (Douglas Ponder for appellant) (Timothy Reichardt and Andrew Tangaro for respondent).

Class Action Attorney’s Fees Mootness

Where a city in a class action dispute that ended in a settlement challenged the award of attorney’s fees to class action counsel and the denial of its motion for fees, the appellant ac-cepted the terms of the settlement and the judgment of attorney’s fees has been voluntarily satisfied, so the question was moot, and the appellant could not challenge the denial of fees to its own counsel because they did not submit a proper request so the issue was not preserved for appeal.

Dismissed.

City of O’Fallon v. CenturyLink, Inc. (MLW No. 68978/Case No. ED102562 – 15 pages) (Missouri Court of Appeals, Eastern District, Sullivan, J.) Appealed from circuit court, St. Louis County, Dueker, J. (Daniel G. Vogel, David A. Streubel and Margaret C. Eveker for appellants) (John W. Hoffmann, Douglas R. Sprong, Howard Paperner and John F. Mulli-gan Jr. for plaintiffs/respondents) (Stephen R. Clark, Mark B. Leadlove and Adam S. Hochschild for defendants/respondents).

Due Process Repealed Statute Attorney’s Fees

(1)Where a plaintiff argued that the district court erred in granting adverse judgments on her due process claims on the basis that the state repealed the relevant statutes, the judgments on the due process claims are vacated because when the statutes ceased to exist, the challenge became moot.

(2)Where a plaintiff, whose underlying suit challenged the constitutionality of funeral protest laws, argued that the district court’s calculation of attorney’s fees was an abuse of discretion, the case is remanded for a recalculation of fees because the overly simplistic calculation did not consider the relative importance and interrelation of the claims, and the court did not examine the mixed litigation results and did not explain how it weighed consent judgments and mooted and dismissed claims.

Judgment is reversed in part; vacated in part; remanded.

Phelps-Roper v. Koster (MLW No. 68860/Case No. 14-3058 – 12 pages) (U.S. Court of Appeals, 8th Circuit, Bye, J.) Appealed from U.S. District Court, Western District of Mis-souri, Gaitan Jr., J. (Anthony E. Rothert, St Louis, argued for appellant; Benicia Livorsi, Grant R Doty and Gillian R. Wilcox appeared on the brief).

Expungement Jurisdiction

Where appellant challenged the denial of his petition to expunge his arrest record for an alcohol-related offense, the jurisdiction of a municipal division is limited to determining municipal violations, and the appellant’s action did not seek to determine a municipal violation issue but to expunge records under a Missouri state statute, so the municipal division lacked jurisdiction to hear the petition, and the appellate court did not have jurisdiction over the merits of the appeal.

Judgment is reversed and remanded for dismissal.

Bright v. Mollenkamp (MLW No. 68795/Case No. ED103249 – 5 pages) (Missouri Court of Appeals, Eastern District, Gaertner Jr., J.) Appealed from circuit court, St. Louis Coun-ty, Waldemer, J. (Richard B. Blanke for appellant) (Chris Koster and Katharine A. Dolin and Brian J. Malone for respondents).

Fair Debt Collection Practices Act Failure To State Claim Misrepresentation

(1)Where a consumer brought an action under the Fair Debt Collection Practices Act against a debt collector who allegedly sought to collect costs above what was authorized and who misrepresented himself as the attorney for a health care provider, equitable tolling did not apply, so FDCPA claims directed towards conduct that preceded the relevant Illinois proceedings were time barred, and the defendant’s use of the Illinois courts did not amount to an action against the consumer, so those actions were not subject to the act’s venue restrictions.

(2)Where a consumer brought an FDCPA claim against a debt collector who allegedly misrepresented himself, the consumer demonstrated an interest amount that substantially exceeded the rate of interest authorized by a Missouri judgment, and he also alleged sufficient facts to support the misrepresentation claim.

Judgment is affirmed in part; reversed in part; remanded.

Hageman v. Barton (MLW No. 68980/Case No. 14-3665 – 16 pages) (U.S. Court of Appeals, 8th Circuit, Melloy, J.) Appealed from U.S. District Court, Eastern District of Missouri, Jackson, J. (Richard A. Voytas Jr., St Louis, argued for appellant) (Terrance J. Good, St Louis, argued for appellee).

FEHBA Preemption Personal Injury Claims

Where a federal employee, who had a health insurance plan covered by the Federal Employee Health Benefits Act, argued that a new federal regulation did not mean that a federal act preempts Missouri law prohibiting the subrogation of the proceeds of the employee’s personal injury settlement, judgment for the insurer is reversed and remanded because the regulation did not overcome the presumption against preemption, and precedent did not require deference to an agency’s interpretation of a statutory preemption clause.

Missouri law

Concurring opinion by Wilson, J.; “As stated in my separate opinion in Nevils v. Group Health Plan, Inc., 418 S.W.3d 451, 457 (Mo. banc 2014), even if the majority opinion is in-correct and the repayment terms in GHP’s contract do fall within the reach of the preemption provision in 5 U.S.C. § 8902(m)(1), that statute’s attempt to give preemptive effect to the provisions of a contract between the federal government and a private party is not a valid application of the Supremacy Clause in article VI of the United States Constitution and, therefore, does not displace Missouri law here. Accordingly, for all of the reasons stated in that separate opinion, I concur in the result reached in the majority opinion in this case.”

Judgment is reversed and remanded.

Nevils v. Group Health Plan, Inc. (MLW No. 69143/Case No. SC93134 – 14 pages) (Supreme Court of Missouri, Teitelman, J.; Fischer, Stith, Draper and Russell, JJ.,concur; Wil-son, J., concurs in result in separate opinion filed; Breckenridge, C.J., Fischer, Stith, Draper and Russell, JJ., concur in opinion of Wilson, J.) Appealed from circuit court, St. Louis County, Sherry, J. (Jon Campbell, Erich Vieth and Alicia Campbell, St. Louis, and Mitchell L. Burgess, Keith C. Lamb, Blake P. Green, Ralph K. Phalen and Don P. Saxton, Kansas City, Missouri, for appellant) (Thomas N. Sterchi and David M. Eisenberg, Kansas City, Missouri; Thomas M. Dee, Melissa Z. Baris, Mark G. Arnold and Elizabeth A. Mushill, St. Louis; Miguel A. Estrada and Jonathan C. Bond, Washington, D.C.; and Winthrop B. Reed III, Steven D. Hall, Richard A. Ahrens, Neal F. Perryman and Ronald B. Ziegler, St. Lou-is, for respondents).

Jurisdiction Abstention Doctrine

Where a former grand jury member sought a declaratory judgment that the Missouri statutes restricting grand jurors from disclosing information were unconstitutional as ap-plied to her, arguing that the state’s grand-jury secrecy laws violated the First Amendment, the judgment dismissing her action is vacated and remanded because the district court properly abstained from the immediate exercise of jurisdiction, but it should not have dismissed the case outright and instead should have stayed the case while the state-law issues were decided.

Vacated; remanded.

Grand Juror Doe v. McCulloch (MLW No. 69317/Case No. 15-2667 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Wollman, J.) Appealed from U.S. District Court, Eastern Dis-trict of Missouri, Sippel, J. (Anthony E. Rothert, St Louis, argued for appellant; David Eric Sowers, Jessie Steffan, Ferne Paula Wolf, Gillian R. Wilcox and Joshua Michael Pierson appeared on the brief) (H. Anthony Relys, St Louis, argued for appellee; Peter Jay Krane and David J Hansen appeared on the brief).

Mechanic’s Lien Enforcement Owner’s Agent

Where subcontractors who were not paid by a contractor sought to enforce mechanic’s liens filed against the property owner, the mechanic’s lien statute is to be construed favor-ably to uphold the rights of laborers, and the trial court’s denial of enforcement is reversed and remanded because the court erred in finding that the contractor was not the proper-ty owner’s agent under the statute, and the owner required and supervised improvements that increased the property value.

Judgment is reversed and remanded.

Crafton Contracting Company v. Swenson Construction Company, Inc. (MLW No. 69039/Case No. ED102910 – 10 pages) (Missouri Court of Appeals, Eastern District, James M. Dowd, J. Appealed from circuit court, St. Louis County, Goldman, J. (Lester J. Hubble and Ira M. Potter for appellant) (James S. Kreamer and John A. Watt for respondent).

MIRA Incarceration Costs IRA

Where the state sought reimbursement for the cost of incarceration from a prison inmate after discovering that he had substantial assets, the judgment is reversed and remanded in part because the inmate’s individual retirement account was expressly excluded from coverage under ERISA, so the trial court erred in finding that the Missouri Incarceration Reimbursement Act was preempted and in applying ERISA’s anti-alienation provision to the IRA, and the IRA was not excluded from the judgment, but the inmate did not show that he was prejudiced by the state’s failure to present evidence about the costs of his care, so his cross appeal is denied.

Judgment is affirmed in part; reversed and remanded.

State ex rel. Chris Koster v. Bailey (MLW No. 69213/Case No. WD78947 – 14 pages) (Missouri Court of Appeals, Western District, Welsh, J.) Appealed from circuit court, Cole County, Green, J.

Personal Jurisdiction Individual Defendants Initialed Documents

Where an Illinois company with its principal place of business in St. Louis County brought an action in St. Louis County against a company owned by a Texas resident and a Florida resident and against the two personally, and the individual defendants sought to be discharged for lack of personal jurisdiction, the defendant’s initials on the pages of a quotation document without a qualifier as to their representative capacity did not evidence a clear intent to bind the defendants in their personal capacity, so the trial court lacked personal jurisdiction over the defendants and their petition is granted.

Petition granted.

State ex rel. Wills v. DePriest (MLW No. 68742/Case No. ED103867 – 6 pages) (Missouri Court of Appeals, Eastern District, Van Amburg, J.) Writ of prohibition (Jon A. Bierman, Thomas P. Hohenstein and Kelly J. Muensterman for relators) (John M. Hessel, Duane L. Coleman and C. David Goerisch for respondent).

Sovereign Immunity City Defendant Insurance Purchase

Where a city sought sovereign immunity in a lawsuit brought by plaintiffs who argued that the city was vicariously liable for officers’ actions in an alleged battery and wrongful arrest, the city’s purchase of an insurance policy that contained a provision for law enforcement liability coverage did not waive its right to sovereign immunity because the policy ex-pressly disclaimed a waiver of sovereign immunity.

Preliminary writ made permanent.

State ex rel. City of Grandview v. Grate (MLW No. 69007/Case No. SC95283 – 7 pages) (Supreme Court of Missouri, Fischer, J.) Original proceeding in prohibition (Christopher L. Heigele and Steven F. Coronado, Kansas City, for the city) (Christopher P. Sweeny, John E. Turner and Marty W. Seaton, Kansas City, Missouri, for the family).

Special Prosecutor Appointment Failure To State Claim

Where appellants sought the appointment of a special prosecutor to investigate the conduct of a county prosecuting attorney during grand jury proceedings following a police shooting, the trial court properly granted the prosecuting attorney’s motion to dismiss for failure to state a claim because the appellants’ allegations did not rise to the level of a knowing or willful failure to perform an official duty, and the appellate court finds that the prosecuting attorney properly exercised his discretion, and the trial court was within its discretion to decide against appointing a special prosecutor.

Judgment is affirmed.

Simmons v. McCulloch (MLW No. 69239/Case No. ED103304 – 11 pages) (Missouri Court of Appeals, Eastern District, Richter, J.) Appealed from circuit court, St. Louis Coun-ty, Walsh III, J. (Maggie Ellinger-Locke for appellant) (Linda S. Levin and Peter Krane for respondent).

Statutes Of Limitation Tolling Federal Law

(1)Where in a case arising from a dispute over a business deal involving used auto sales, the appellant filed a state petition after a federal court had dismissed a complaint that raised similar claims over which the court had declined to exercise pendant jurisdiction, a federal statute tolled some of the claims that were pleaded in both state and federal court, but the plaintiff altered the parties, facts and allegations from the federal complaint’s filing to the state petition filing so that the causes of action no longer derived from a common nucleus of operative fact, and as to the allegations and defendants included in the state petition but not raised in the federal complaint, so the appellate court finds in a case of first impression that 28 U.S.C. Section 1367(d) did not toll the statute of limitations, so the state action was timely filed as to them.

(2)Where the plaintiff argued that in a case arising from a dispute over a business deal involving used auto sales, its unwritten contract came within an exception to the statute of frauds, the plaintiff did not show that its amended petition set forth facts showing that its partial performance took the parties’ verbal agreement outside of the statute of frauds, so the trial court properly held that the contract could not be enforced.

Judgment is affirmed.

Crest Construction II, Inc. v. Hart (MLW No. 69064/Case No. WD78135 – 25 pages) (Missouri Court of Appeals, Western District, Newton, J.) Appealed from circuit court, Clay County, Sutton, J. (Michael Rahmberg, Kansas City, Missouri, for appellants) (Floyd White Jr. and David Johnson, Kansas City, Missouri, for respondents; John Hart, pro se and Dee Hart, pro se).

Writ Of Mandamus Preliminary Order Employment Case

Where the trial court in an employment discrimination case challenging the issuance of a right-to-sue letter denied an employer’s petition for a writ of mandamus and the trial court issued a summons without issuing a preliminary order, the procedure did not comply with Rule 94, and the employer should have filed its writ in a higher court, so the appeal is dismissed based on the appellate court’s recent holding in State ex rel. Tivol Plaza, Inc. v. Missouri Commission on Human Rights.

Appeal is dismissed.

State ex rel. Caesars Entertainment Operating Co., Inc. v. Commission on Human Rights (MLW No. 69054/Case No. WD78693 – 4 pages) (Missouri Court of Appeals, Western District, per curiam) Appealed from circuit court, Cole County, Joyce, J. (Christopher R. Howard, Kansas City, Missouri, for appellants) (Daryl R. Taylor, Kansas City, Missouri, for respondents).

Writ Of Mandamus Preliminary Order Employment Case

Where the trial court in an employment discrimination case denied an employer’s petition for a writ of mandamus and the trial court issued summonses without issuing a preliminary order, the procedure did not comply with Rule 94, and the employer should have filed its writ in a higher court, so the appeal is dismissed.

Right To Appeal

Dissenting opinion by Ahuja, J.: “The majority opinion dismisses Tivol’s appeal of the circuit court’s denial of mandamus relief, because at the commencement of the action the circuit court issued a summons, rather than a preliminary order in mandamus, to require the respondent to answer Tivol’s petition. According to the majority, this procedural defect divests this Court of jurisdiction to hear Tivol’s appeal, even though the respondent never objected –in the circuit court or in this Court –to the form of process which brought it be-fore the court. “Unlike the majority, I believe that Tivol had a right to appeal the circuit court’s dismissal of its mandamus petition, because the circuit court considered and rejected Tivol’s petition on the merits. The process which was employed to bring the Commission before the circuit court is irrelevant to our appellate jurisdiction, particularly since the Commission could have, but did not, object to the form of process served upon it. Even if the exercise of appellate jurisdiction in this case were discretionary, I would agree with Judge Newton that this case justifies an exercise of that discretion, to provide much-needed guidance to the Commission, employers, and employees in this needlessly confused, and frequently litigated, area of the law.”

Farrow case

Dissenting opinion by Newton, J.: “Because I believe that this Court has the authority to exercise jurisdiction over Tivol’s appeal, I respectfully dissent and would reach the merits to provide guidance to litigants who may have been misdirected by dicta in Farrow v. Saint Francis Medical Center, 407 S.W.3d 579, 590 (Mo. banc 2013), suggesting that a writ of mandamus must be sought to review whether the Commission had jurisdiction to entertain a complaint of discrimination after the Commission issues a right-to-sue letter.”

Appeal dismissed.

State ex rel. Tivol Plaza, Inc. v. Missouri Commission on Human Rights (MLW No. 69034/Case No. WD78477 – 35 pages) (Missouri Court of Appeals, Western District, Welsh, J.) Appealed from circuit court, Cole County, Joyce, J. (Michael Blumenthal, Nickalaus Seacord and Paul Seyferth, Kansas City, Missouri, for appellants) (James Layton, Jefferson City, and Phillip Murphy II, Kansas City, Missouri, for respondents).

HIV Exposure Freedom Of Speech Right To Privacy

Where a woman who was convicted for recklessly exposing another person to HIV without their knowledge and consent challenged the relevant statute as violating her rights to free speech and privacy, the judgment against the woman is affirmed because the burden on speech is incidental to the conduct that the statute seeks to prohibit, and there is no privacy violation because the law does not criminalize consensual, non-harmful sexual conduct but only conduct that would expose another to a life-threatening disease without their consent.

Judgment is affirmed.

State v. S.F. (MLW No. 68915/Case No. SC94923 – 7 pages) (Supreme Court of Missouri, Russell, J.; all concur) Appealed from circuit court, Jackson County, Powell, J. (Jeannette L. Wolpink, Kansas City, Missouri, for appellant) (Shaun J. Mackelprang, Jefferson City, for respondent).

Special Law Local Government Annexation

Where a city challenged a statute, which set procedures for a city’s post-annexation payments to a fire district, the statute was a special law, and the state did not offer a substantial justification for its enactment when a general law would do, so the trial court’s grant of summary judgment to the governor and attorney general is reversed and remanded.

Judgment is reversed.

City of DeSoto v. Nixon (MLW No. 68672/Case No. SC94746 – 14 pages) (Supreme Court of Missouri, Stith, J.; all concur) Appealed from circuit court, Cole County, Joyce, J. (James M. Kreitler, Hillsboro, for appellants) (James R. Layton, Jefferson City, for respondents).

Standing Sunshine Law Execution Protocol

Where the American Civil Liberties Union sued the director of the Department of Corrections challenging the constitutionality of a statute, which provided a cause of action against anyone who discloses the identity of a member of an execution team, the ACLU lacked standing since its injury was not fairly traceable to the director who lacked statutory enforcement authority, so the district court’s denial of immunity is reversed.

Judgment is reversed.

Balogh v. Lombardi (MLW No. 68888/Case No. 14-3603 – 14 pages) (U.S. Court of Appeals, 8th Circuit, Riley, J.) Appealed from U.S. District Court, Western District of Missouri, Phillips, J. (Caroline Coulter, Jefferson City, argued for appellant) (Anthony E. Rothert, St Louis, argued for appellee; Grant R Doty, Gillian R. Wilcox and Andrew McNulty appeared on the brief).

Validity Of Legislation Special Law

Where plaintiffs including a city, a league of cities and a citizen challenged the constitutional validity of two bills by the Missouri Legislature, the judgment dismissing the challenge is affirmed because the plaintiffs’ special law claim was based on a mere conclusory allegation, and the citizen did not claim to be a taxpayer of an affected subdivision, so he did not establish standing to bring an unfunded mandate claim, and the state was entitled to a judgment on the pleadings on the enactment claim.

Standing Opinion

concurring in part; dissenting in part by Teitelman, J.: “I respectfully dissent from the principal opinion only to the extent it holds that the city of Springfield and the Missouri Municipal League lack standing to assert a claim based on article I, section 13 of the Missouri Constitution. Article I, section 13 provides ‘that no ex post facto law, nor law im-pairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.’ The plain language of article I, section 13 provides that no law ‘retrospective in its operation… can be enacted.’ The plain meaning of this language is that the General Assembly is barred, without exception, from enacting any retrospective laws. While the principal opinion notes, correctly, that there is a line of cases holding otherwise, these cases are inconsistent with the plain language of arti-cle I, section 13 and were wrongly decided. Therefore, I would hold that the city and the Municipal League have standing to pursue a claim based on article I, section 13.”

Judgment is affirmed.

Missouri Municipal League v. State (MLW No. 69220/Case No. SC95337 – 6 pages) (Supreme Court of Missouri, Fischer, J.; Breckenridge, C.J., Stith, Draper, Wilson and Russell, JJ.concur; Teitelman, J., dissents in part and concurs in part in separate opinion filed) Appealed from circuit court, Cole County, Beetem, J. (Michael G. Berry and Marshall V. Wil-son, Jefferson City, Marianne Landers Banks, Springfield, and B. Allen Garner, Independence, for appellants) (James R. Layton, Jefferson City, for respondent).

Where appellant, who argued that his dental provider and its attorney engaged in collection practices that violated the Federal Debt Collection Practices Act and the Missouri Merchandising Practices Act, challenged the dismissal of his claims, the judgment is affirmed because the FDCPA claim was barred by the one-year statute of limitations because the at-torney’s alleged no-show on a court date and his demand letter were not “discrete violations” of the FDCPA but were merely the “later effects of an earlier time-barred violation,” so the claim accrued at the initiation of the debt collection suit, and the MMPA claim was also properly dismissed because the attorney’s alleged actions were not “in connection with” the dental provider’s sale of services to the appellant.

Judgment is affirmed.

Jackson v. Barton (MLW No. 69090/Case No. ED103370 – 16 pages) (Missouri Court of Appeals, Eastern District, Robert G. Dowd Jr., J.) Appealed from circuit court, St. Louis County, Bresnahan, J. (Richard A. Voytas Jr. for appellant) (Dennis J. Barton III for respondent).

MMPA Car Advertising ‘Puffery’

Where car buyers whose vehicles developed dashboard bubbling brought an action against the manufacturer under the Missouri Merchandising Practices Act, the verdict for the plaintiffs is reversed and remanded because the alleged misstatements of fact made by the defendant in its advertising were not actionable statements of fact under the act but were mere “puffery.”

Judgment is reversed and remanded.

Hurst v. Nissan North America, Inc. (MLW No. 68934/Case No. WD78665 – 18 pages) (Missouri Court of Appeals, Western District, Welsh, J.) Appealed from circuit court, Jack-son County, Grate, J. (John Cowden and David Eisenberg, Kansas City, Missouri, for appellant) (Kevin Stanley, Independence; Lawrence Mook, Kansas City, Missouri; and Michael Blanton, Denver, for respondent).

Wrongful Foreclosure Damages Inconsistent Remedies

(1)Where a bank challenged a judgment against it for wrongful foreclosure, the homeowners presented evidence that their note had been falsely accelerated based on a false report that they were evacuating, and the homeowners also satisfied their burden to establish that a reinstatement agreement was in place before the scheduled foreclosure sale, so the home-owners showed that they were not in default.

(2)Where homeowners were awarded damages for wrongful foreclosure, they could not also receive a judgment quieting title because the remedies were inconsistent, and an award for lost value was also erroneous because the homeowners were not injured by their property’s decline in value after a foreclosure sale, and the value of post-foreclosure repairs was not damage proximately caused by the foreclosure.

(3)Where homeowners in a wrongful foreclosure case asserted that the bank acted willfully and maliciously, emotional distress is a natural and probable consequence, so the home-owners did not have to plead emotional distress as special damages.

(4)Where the trial court in a wrongful foreclosure case ordered severe sanctions against the bank including the striking of all pleadings and a prohibition against the admission of evidence and witness testimony, the sanctions were not an abuse of discretion based on the defendant’s repeated failures to respond to discovery requests and to produce witnesses.

(5)Where in a wrongful foreclosure case a bank offered a reinstatement agreement and then deliberately ignored the agreement and foreclosed on the home when the homeowners were not in default, the homeowners clearly supported their request for punitive damages, and the bank did not show that the award violated its right to due process.

Judgment is affirmed in part; reversed in part.

Holm v. Wells Fargo Home Mortgage Inc. (MLW No. 69056/Case No. WD78666 – 53 pages) (Missouri Court of Appeals, Western District, Martin, J.) Appealed from circuit court, Clinton County, Elliott, J. (Kenneth B. McClain II, Independence, and Gregory A. Leyh, Gladstone, for Respondents) (Elizabeth C. Carver and Eric D. Martin, St. Louis, for appellants).

Construction Damages Measurement Individual Liability

(1)Where a property owner sued a construction company in a dispute arising from the defective construction of a barn, the trial court did not err in applying the cost-measure of damages rather than the diminished-value measure of damages because there was no evidence regarding the difference between the value of the building as actually constructed and the value the building would have had if constructed according to the terms of the contract.

(2)Where the owners of a construction company challenged the entry of judgment against them individually in a contract dispute, the trial court’s finding that the owners made affirmative misrepresentations and omitted material facts made the owners active participants in the fraud, and justified the imposition of individual liability.

(3)Where a defendant in a contract case argued that the trial court erred in awarding $10,000 in attorney’s fees under the Missouri Merchandising Practices Act because there was no itemization of the time spent on the case, the judgment is affirmed because the statute did not require an itemized list of attorney services, and the judge who awarded the fees presided over the trial so had a basis for determining the time expended.

Judgment is affirmed.

Rogers v. Superior Metal, Inc. (MLW No. 68756/Case No. SD33696 – 11 pages) (Missouri Court of Appeals, Southern District, Sheffield, J.) Appealed from circuit court, Lawrence County, Sifferman, J. (Abe Robley Paul, Pineville, for appellant) (Russell Schenewerk, Branson, Joshua Ryan Baker, Branson, for respondent).

Purchase Order Contract Condition Precedent Pay-If-Paid Provision

Where in a dispute between a subcontractor and a contractor the purchase order contract contained unambiguous language that constituted a pay-if-paid provision, the judgment is reversed and remanded for a new trial because the contractor was prejudicially deprived of the defense of arguing that the owner’s failure to pay justified its nonpayment to the sub-contractor, and on remand the subcontractor’s claim for prejudgment interest and attorney’s fees will need to be reevaluated.

Judgment is reversed and remanded.

A.Zahner Company v. McGowan Builders, Inc. (MLW No. 69217/Case No. WD78063 – 10 pages) (Missouri Court of Appeals, Western District, Howard, J.) Appealed from circuit court, Jackson County, Grate, J. (Frederick Ernst for appellant) (Teresa A. Woody for respondent).

Settlement Agreement Reformation Mutual Mistake

Where the plaintiff in an underlying negligence action sought specific performance and reformation of the parties’ settlement agreement, asking the court to add two terms to their written agreement that were omitted allegedly due to mutual mistake, substantial evidence supported the trial court’s judgment reforming the written agreement, but where the par-ties agreed that they did not intend for the defendant to enter a consent judgment, the provision that the defendant cooperate in the underlying action through a consent judgment is modified to only require the defendant to cooperate through an uncontested hearing on liability and damages.

Judgment affirmed as modified.

Hunter v. Moore (MLW No. 69070/Case No. SC95083 – 14 pages) (Supreme Court of Missouri, Russell, J.; all concur) Appealed from circuit court, St. Louis, David L. Dowd, J. (Susan Ford Robertson and J. Zachary Bickel, Kansas City, Missouri, and Cheryl A. Callis and Kenneth M. Lander, St. Louis, for appellant) (Michael W. Manners, Lexington, Joseph F. Yeckel, St. Louis, and Matthew P. O’Grady, St. Louis, for respondent).

Class Certification Stock Price Price Impact Analysis

Where shareholders sued a retailer and three of its executives alleging violations of federal securities laws for misleading public statements, claiming statements in a press release and conference call artificially inflated stock prices until the misstatements were disclosed with the report of quarterly earnings, the defendant submitted direct evidence that severed any link between the alleged conference call misrepresentations and the stock price at which the plaintiffs purchased, and the plaintiffs failed to present contrary evidence of price impact, so the district court abused its discretion in certifying the class because the court finds on an issue of first impression that the district court misapplied the price impact analysis under Halliburton Co. v. Erica P. John Fund, Inc.

Presumption of reliance

Dissenting opinion by Murphy, J.: “Because the majority has misapplied the presumption of reliance standard at this class certification stage, I dissent…. “In this case Best Buy could have rebutted the presumption of reliance by producing evidence showing that the alleged misrepresentations had not counteracted a price decline that would otherwise have occurred. Best Buy produced no such evidence, and the presumption was not rebutted.”

Judgment is reversed and remanded.

IBEW Local 90 Pension Fund v. Best Buy Co., Inc. (MLW No. 69044/Case No. 14-3178 – 16 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, District of Minnesota, Frank, J. (Joseph M. McLaughlin, New York, argued for appellant; Eric John Magnuson, Joseph M. McLaughlin, Stephen Paul Safranski, Jeffrey Sullivan Gleason, George S. Wang and Daniel J. Stujenske appeared on the brief) (Susan Katina Alexander, San Francisco, argued for appellee; Clayton Dean Halunen, Susan Katina Alexan-der, Shawn A. Williams, Daniel J. Pfefferbaum, Aelish M. Baig and Kenneth J. Black appeared on the brief).

Derivative Action Second Suit Notice And Approval

Where a shareholder brought a derivative action, which asserted an identical cause of action to a first derivative action that had been settled and dismissed, in a case of first impression the appellate court holds that the settlement in the first action did not comply with the appropriate notice and court-approval requirements of Rule 52.09, so the second suit was not barred.

Judgment is reversed and remanded.

Van Leeuwen v. Lowery (MLW No. 68937/Case No. ED103392 – 15 pages) (Missouri Court of Appeals, Eastern District, Gaertner Jr., J.) Appealed from circuit court, St. Louis County, DePriest Jr., J. (Robert Schultz and Ronald J. Eisenberg for appellant) (Christopher P. Kellet and Teresa Dale Pupillo for respondent).

Altered Photograph Closing Argument Plain Error

Where the state during a visual presentation at closing argument showed a large color photo of the defendant in a drug manufacturing case in an orange prison jumpsuit with the word “guilty” superimposed over his face, the defendant failed to preserve the issue for appeal by not objecting until after the jury had returned a guilty verdict, so the issue may be reviewed only for plain error, but the use of the photo was improper and prejudicial, so the trial court’s judgment is reversed and remanded for a new trial.

Wrong standard

Dissenting opinion by Wilson, J.; I agree with the result reached in the dissenting opinion but write separately because both the dissenting opinion and the principal opinion apply the wrong standard of review. This error is all too common when a criminal defendant raises a claim for the first time in a motion for a new trial. This Court’s rules of criminal procedure are clear in such circumstances, but the confusion results because appellate courts often misidentify which claim was preserved for appellate review.”

Overwhelming evidence

Dissenting opinion by Russell, J.; “Although I agree that the prosecutor’s use of the altered photograph during closing arguments was likely improper, under our applicable standard of review for plain error, such conduct amounts to reversible error only if it is established that it had a decisive effect on the jury’s verdict and substantially affected Defendant’s rights resulting in a manifest injustice. In light of the overwhelming evidence of Defendant’s guilt and the trial court’s superior position from which to judge any possible prejudice from the prosecutor’s conduct, I would hold that no such showing has been made, and, consequently, I would affirm the decision of the trial court.”

Judgment is reversed and remanded.

State v. Walter (MLW No. 68715/Case No. SC94658 – 28 pages) (Supreme Court of Missouri, Draper III, J.; Breckenridge, C.J., Stith and Teitelman, JJ., concur; Wilson, J., dissents in separate opinion filed; Russell, J., dissents in separate opinion filed; Fischer, J., concurs in opinion of Russell, J.) Appealed from circuit court, Clay County, Harman, J. (Damien De Loyola and Greg Doty, Kansas City, Missouri, for appellant) (P. Benjamin Cox, Kansas City, Missouri, for respondent).

Analogue Act Jury Instructions Expert Testimony

(1)Where defendants challenged their convictions and sentences under the Analogue Act for selling misbranded synthetic drugs, the defendants’ constitutional challenge failed because the act was not unconstitutionally vague, and the defendant’s challenges to the jury instructions and sufficiency of the evidence also failed.

(2)Where the defendants in a case brought under the Analogue Act challenged the admission of expert testimony from a government expert who testified about the substantial similarity in chemical structure between scheduled controlled substances and the products sold by the defendants, the district court did not abuse its discretion in admitting the evidence because the defendants’ objections went to the weight of the expert’s testimony, not its admissibility.

Judgment is affirmed.

U.S. v. Carlson (MLW No. 68675/Case No. 14-2986 – 17 pages) (U.S. Court of Appeals, 8th Circuit, Murphy, J.) Appealed from U.S. District Court, District of Minnesota, Doty, J. (John J.E. Markham II, Boston, and Charles L. Hawkins, Minneapolis, argued for appellants) (Surya Saxena, Minneapolis, argued for appellees).

Appellate Jurisdiction Docket Entry Final Judgment

Where a trial court denied a motion for DNA testing in a docket entry that was neither signed by the judge nor denominated as a judgment and the court issued no findings of fact or conclusions of law, the appeal is dismissed for lack of jurisdiction because the docket entry was not a final judgment.

Stare decisis

Concurring opinion by Scott, J.: “I credit the dissent for formally proving, as seemed to follow from J.C.W. that this Rule 74.01(a) violation does not rob us of appellate jurisdiction. Still, with exceptions inapplicable here, controlling authority requires that we ‘determine, sua sponte, if there is a final judgment,’ which ‘is a prerequisite to appellate review.’ “Respect for that policy decision and our high court’s authority to make it, more than slavish adherence to stare decisis, demands that we stay the course until that court, not this one, decides to change.”

Jurisdiction

Concurring opinion by Burrell, J.: “I concur in the principal opinion and in the separate opinion of Judge Scott. I also find much to admire in the dissenting opinion, and if our high court had written Hughes after it wrote J.C.W., I doubt that the concluding word of the analysis in Hughes would have been ‘jurisdiction.’ Nonetheless, the question of appellate court ‘jurisdiction’ was not at issue in J.C.W., and Hughes has not been explicitly overruled. As a result, I also cannot join the dissent for the reasons stated by our supreme court in State v. Honeycutt.”

Transferred

Dissenting opinion by Rahmeyer, J.: “I must respectfully dissent from the dismissal of the appeal. First, I note that a very narrow issue is presented to us. The trial court here entered a docket entry denying the motion for DNA testing. This docket entry does not comply with the requirements of Rule 74.01(a)1 to be signed by the judge and designated as a ‘judgment’ and, thus, cannot be considered to be a judgment as defined by that rule. The parties, however, have not raised any issue whether Rule 74.01 applies or requested any relief for non-compliance with that rule or section 512.020. Therefore, our only interest is whether non-compliance with Rule 74.01(a), and, thus, section 512.020, deprives us of appellate jurisdiction to review this appeal. While I agree with the majority opinion that we have a duty to determine our ‘jurisdiction,’ based upon the analysis employed by our Supreme Court in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), decided after City of St. Louis v. Hughes, 950 S.W.2d 850, 853 (Mo. banc 1997), I believe that this Court does have jurisdiction to determine the appeal. I believe the omission of the judge’s signature and failure to denominate the order as a ‘judgment,’ are simply errors that this Court may address, but is not required to address unless raised by the parties, in deciding the appeal. “For these reasons, I dissent from the majority opinion. Further, I certify that the majority opinion is contrary to a previous decision of an appellate court of this state and hereby transfer this case to the Supreme Court of Missouri pursuant to Rule 83.03.”

Transferred to Supreme Court of Missouri.

Appeal is dismissed. Mercer v. State (MLW No. 68634/Case No. SD33779 – 24 pages) (Missouri Court of Appeals, Southern District, Bates, J.) Appealed from circuit court, Dent County, Parker, J. (Richard Mercer, pro se) (Karen Louise Kramer, Jefferson City, for respondent).

Attempted Assault Gun Purchases Substantial Step

(1)Where a defendant who was being treated for mental health issues bought two assault rifles and began target practice after watching a movie about the Columbine shootings and despite having no prior gun experience, and the defendant admitted to police that he thought about randomly shooting people at a store or movie theater, the evidence was sufficient to find that the defendant had the purpose to kill or injure another, and defendant’s actions in buying the weapons and practicing shooting were strongly corroborative of his purpose to commit assault to support the finding that he took a substantial step toward completion of the offense, and the defendant’s storage of the guns at his girlfriend’s father’s house did not show abandonment, so the defendant’s conviction for attempted first-degree assault and armed criminal action is affirmed, and decisions following State ex rel. Verweire v. Moore, which held that threats with a deadly weapon with the ability to carry them out do not constitute attempt unless the defendant pulls the trigger, the police intervene or the defendant causes only minor injury, should no longer be followed.

(2)Where police approached a defendant after a call from his mother regarding his mental health issues and his purchase of guns, the defendant agreed to accompany police to the station and was not restrained and retained his personal items, and the defendant was told that he was not under arrest, there were no Fourth or Fifth Amendment violations even if the warnings given were defective or misunderstood. Line between thought and crime Dissenting opinion by Teitelman, J.: “I respectfully dissent. The line between thought and the crime of attempt is crossed only after one takes a ‘substantial step’ toward the commission of the offense. Mr. Lammers admitted to homicidal thoughts, but he never engaged in conduct that, beyond a reasonable doubt, strongly corroborated a firm plan to act on those thoughts. Mr. Lammers should be receiving treatment for his mental illness rather than serving time in prison for a crime he did not commit.”

Judgment is affirmed.

State v. Lammers (MLW No. 68774/Case No. SC94977 – 27 pages) (Supreme Court of Missouri, Russell, J.; Breckenridge, Fischer, Stith, Draper and Wilson, JJ., concur; Teitelman, J., dissents) Appealed from circuit court, Polk County, Roberts, J. (Donald R. Cooley, Springfield, for appellant) (Robert J. (Jeff) Bartholomew, Jefferson City, for respondent).

Batson Equal Protection Pretext

Where a defendant in a sodomy and molestation case argued that the trial court erred in overruling his Batson challenge, the judgment is affirmed because the defendant did not show that the striking of three African-American venirepersons violated his equal protection rights, and the defendant also did not show that the explanations offered by the state for the peremptory strikes were pretext.

Judgment is affirmed.

State v. Rashad (MLW No. 68945/Case No. ED102361 – 15 pages) (Missouri Court of Appeals, Eastern District, Odenwald, J.) Appealed from circuit court, St. Louis City, Wilson, J. (Kevin L. Schriener for appellant) (Chris Koster and Daniel N. McPherson for respondent).

Burglary Severance Restitution

(1)Where a defendant who was convicted of various burglary and conspiracy charges moved to sever his trial from that of a co-defendant, the district court did not err in denying severance because even though some of the evidence focused solely on the other defendant, the court gave proper limiting instructions, and the cases were properly joined based on participation in the same conspiracy.

(2)Where a defendant in a burglary case first indicated an intent to introduce expert testimony five days before trial and the defendant failed to make the required disclosures, the district court did not abuse its discretion in excluding the evidence, and the defendant’s challenge to the sufficiency of the evidence also failed.

(3)Where a defendant in a burglary case challenged an order of restitution, arguing that corporations are not victims under the Mandatory Victim Restitution Act, the court found that the stores were victims because they were harmed by the commission of an offense for which restitution may be ordered.

(4)Where defendants in a burglary case claimed that they did not voluntary agree to the admission of an evidentiary stipulation that established jurisdictional elements of the charged offenses, the defendants were bound by the stipulation even though it was signed by their attorneys rather than themselves, and their convictions for burglary qualified as crimes of violence under precedent even though the burglarized structures were stores rather than dwellings.

Conflict in circuits

Concurring opinion by Colloton, J.: “I concur in the opinion of the court, but with reservations about the alternative holding in United States v. Stymiest, 581 F.3d 759, 769 (8th Cir. 2009), and its application to the sentences imposed in this case. Stymiest, adopting dicta from United States v. Bell, 445 F.3d 1086, 1090 (8th Cir. 2006), said that the Sentencing Commission’s decision to define “crime of violence” in the career offender guideline, USSG § 4B1.2(a)(2), to include ‘burglary of a dwelling’ rather than ‘burglary’ was ‘invalidated’ by the Supreme Court’s decision in Taylor v. United States…. “Taylor held that ‘burglary’ in the definition of ‘violent felony’ in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), includes certain nonresidential burglaries. The alternative holding in Stymiest conflicts with an en banc decision of the First Circuit, which ruled that the Sentencing Commission permissibly declined to enumerate non-residential burglary as a ‘crime of violence’ under § 4B1.2… “Given the conflict in the circuits and the significance of the issue, the sentencing portion of this appeal may warrant review by the court en banc.”

Judgment is affirmed.

U.S. v. Benedict (MLW No. 68857/Case No. 14-3412 – 13 pages) (U.S. Court of Appeals, 8th Circuit, Murphy, J.) Appealed from U.S. District Court, District of Minnesota, Nelson, J. (Tom Dunnwald, Minneapolis, and Mark D. Nyvold, Fridley, Minnesota, argued for appellants) (James Lackner, St Paul, Minnesota, argued for appellee).

Burglary Sufficiency Of Evidence Continuance

(1)Where a defendant challenged his conviction for armed criminal action in connection with a first-degree burglary arguing that there was no evidence that he “used” a gun to show that he committed the crime with the “assistance or aid” of a gun as required by the statute, the defendant entered the victim’s garage brandishing a gun, which enabled his unlawful entry, so the evidence was sufficient to support the conviction, and the evidence was also sufficient to support the conviction for resisting arrest since even though the arresting officer did not say “you are under arrest,” he was in uniform, identified himself as an officer and issued a command to stop running, and the defendant’s continued flight showed his consciousness of guilt.

(2)Where a trial court denied a defendant’s motion for a continuance on the eve of trial, the court did not abuse its discretion because the case was four years old with four previous continuances, and the defendant’s motion failed to show that counsel used due diligence in identifying a new witness.

Completed burglary

Opinion concurring in part; dissenting in part by Draper, J. “I concur in the principal opinion’s holding that the circuit court did not err by overruling Justin Floyd Eugene Jones’ (hereinafter, ‘Jones’) motion for judgment of acquittal on the charge of resisting arrest and Jones’ motion for a continuance. I respectfully dissent, however, from the principal opinion’s holding that there was sufficient evidence upon which a jury could find beyond a reasonable doubt that Jones was guilty of committing armed criminal action during the course of the burglary of C.H.’s home. I would hold there was insufficient evidence to support the armed criminal action conviction associated with the burglary charge because Jones completed the burglary as soon as he crossed the threshold into C.H.’s garage and there was no evidence to support the fact that Jones completed the burglary by, with, or through the use, assistance, or aid of the gun he possessed.”

Judgment is affirmed.

State v. Jones (MLW No. 68713/Case No. SC94924 – 31 pages) (Supreme Court of Missouri, Wilson, J.; Breckenridge, C.J., Fischer, Stith and Russell, JJ., concur; Draper III, J., concurs in part and dissents in part in separate opinion filed; Teitelman, J., concurs in opinion of Draper, J.) Appealed from circuit court, St. Louis County, Burton, J. (Samuel Buffaloe, Columbia, for appellant) (Rachel Flaster, Jefferson City, for respondent).

Concealed Weapon Denial Of Application Vested Right

Where a man, who was discharged from probation after pleading guilty to and being convicted of felony forgery, applied for a concealed carry permit, an August 2014 amendment did not apply to the case, and even thought Section 549.111 restored rights and privileges to those discharged from probation, the fact that the man pleaded guilty to the felony offense barred the sheriff from issuing the permit, and Section 571.101, the concealed carry law, was not unconstitutionally retrospective as applied.

Judgment is affirmed.

Hill v. Boyer (MLW No. 68776/Case No. SC95088 – 8 pages) (Supreme Court of Missouri, Teitelman, J.; all concur) Appealed from circuit court, Jefferson County, Miller, J. (Kevin M. Whiteley and David M. Korum, St. Louis, for appellant) (Victor J. Melenbrink, Hillsboro, for respondent).

Consent To Search Right To Counsel Limited Invocation

Where a defendant refused to sign a consent-to-search form without an attorney, the trial court’s suppression of the defendant’s statements is reversed because the police honored the defendant’s limited invocation of his rights.

Standard of review

Dissenting opinion by Rahmeyer, J.: “I must respectfully dissent. Although the majority opinion states that our analysis is de novo because the trial court decided the motion on stipulated facts, in actuality the court conducted a hearing and reviewed exhibits, including the depositions and reports of the police officers…. “Given (1) our standard of review, (2) that the State had the burden of showing by a preponderance of the evidence that the motion to suppress should be denied, (3) that the trial court is presumed to have found all facts in accordance with its ruling, and (4) that if the ruling is plausible, in light of the record viewed in its entirety, we will not reverse, even if we would have weighed the evidence differently, I believe the order sustaining the motion to suppress is not clearly erroneous.”

Judgment is reversed and remanded.

State v. Holman (MLW No. 68890/Case No. SD33961 – 12 pages) (Missouri Court of Appeals, Southern District, Burrell, J.) Appealed from circuit court, Lawrence County, Goodman, J. (Don Trotter, Mount Vernon; Andrew C. Hooper, Jefferson City; and Joseph W. Wantuck, Springfield, for appellant) (Roger C. Jones and Jason Coatney, Springfield, for respondent).

Continuance Public Defender’s Motion Capital Case

Where a public defender sought a writ to prevent a judge from requiring her to try a capital case that she was unprepared to take to trial, a preliminary writ of prohibition is made absolute because the public defender showed good cause for delay in open court in that she was without co-counsel and was already representing six clients on first-degree murder charges and had only received limited discovery.

Writ made absolute.

State ex rel. Melvin J. Scherrer v. Martinez (MLW No. 68654/Case No. ED103740 – 5 pages) (Missouri Court of Appeals, Eastern District, Richter, J.) Writ of Prohibition (Jerrod D. Mahurin for respondent).

Death Penalty Post-Conviction Relief Effectiveness Of Counsel

(1)Where a defendant who was sentenced to death following convictions including first-degree murder and forcible rape argued that his attorney should have called an expert to present his complete psychosocial, psychosexual and trauma history in the penalty phase of the trial as mitigating evidence, trial counsel is not obligated to shop for an expert witness who might provide the most favorable testimony, and the attorney was also not ineffective for failing to present testimony to challenge his competency to stand trial since the defendant did not show that he would have been found incompetent to stand trial.

(2)Where a defendant in a murder case argued that his trial counsel should have called an expert to testify about his alleged diminished capacity, there was no evidence of diminished capacity presented, and the decision not to present a diminished capacity defense was a matter of reasonable trial strategy, and the motion court explicitly rejected an expert opinion that the defendant suffered from bipolar I disorder, and the record showed that the attorney fully investigated issues of involuntary intoxication and mental disease or defect, so the defendant did not show that counsel was ineffective.

(3)Where a defendant in a murder case argued that his counsel should have prepared him to testify in both the guilt and penalty phases of his trial, the record showed that the defendant was not cooperative with his attorneys, and he did not show prejudice, so the judgment is affirmed.

Judgment is affirmed.

Davis v. State (MLW No. 69012/Case No. SC94622 – 32 pages) (Supreme Court of Missouri, Draper III, J.; all concur) Appealed from circuit court, Jackson County, Roldan, J. (Kent Denzel, Columbia, for appellant) (Richard A. Starnes, Jefferson City, for respondent).

Double Jeopardy Robbery Consecutive Sentences

Where a defendant argued that his right to be free from double jeopardy was violated when he was convicted and sentenced for two separate counts of first-degree robbery and the corresponding armed criminal action, the thefts of money and jewelry occurred over the course of a five-hour car ride and defendant did not show that the thefts occurred during the same instance of forcible stealing, so the defendant did not show plain error, and the defendant also did not show that consecutive sentences for rape and sodomy were unconstitutional.

Judgment is affirmed; remanded.

State v. Brandon (MLW No. 69001/Case No. ED102318 – 10 pages) (Missouri Court of Appeals, Eastern District, Richter, J.) Appealed from circuit court, St. Louis City, Bush, J. (Rosemary E. Percival for appellant) (Chris Koster and Robert J. Bartholomew for respondent).

Double Jeopardy Continuous Threat

Where a defendant argued that his right to be free from double jeopardy was violated by his convictions for two counts of first-degree robbery and two counts of armed criminal action based on his claim that two thefts from the victim constituted one crime, each separate incident of forcible stealing constituted a different robbery despite the defendant’s argument that the thefts occurred under one continuous threat of force, and the thefts occurred over the course of a five-hour car ride so they could have been separated by several hours, giving the defendant time to form a separate mens rea for each, so the judgment is affirmed, but the case is remanded to the trial court to conform the written judgment to the oral pronouncement.

Judgment is affirmed; remanded.

State v. Clark (MLW No. 69067/Case No. ED102104 – 9 pages) (Missouri Court of Appeals, Eastern District, James M. Dowd, J.) Appealed from circuit court, St. Louis City, Bush, J. (S. Kathleen Webber for appellant) (Chris Koster and Christine K. Lesicko for respondent).

Drug Conspiracy Sufficiency Of Evidence Wiretap Recordings

(1)Where two defendants in a drug conspiracy case challenged the sufficiency of the evidence to support their convictions, multiple co-conspirators testified that one defendant agreed to buy, ship and distribute large quantities of marijuana and cocaine and the defendant discussed drug-related activities in wiretap recordings, so the evidence was sufficient to show that the defendant knew about and intentionally joined a conspiracy, and the government also presented sufficient evidence to support conviction for murder for hire and possession of a machine gun in furtherance of a crime of violence.

(2)Where a defendant in a drug conspiracy case challenged the admission of 24 wiretap recordings, there was a sufficient basis for identification of the defendant’s voice, so the district court did not abuse its discretion in admitting the recordings, and the defendant did not show that cumulative errors deprived him of a fair trial, but the court erred in applying a murder cross reference at sentencing so the defendant’s sentence is vacated and remanded.

Judgment is affirmed; remanded for resentencing.

U.S. v. Taylor (MLW No. 68837/Case No. 15-1236 – 15 pages) (U.S. Court of Appeals, 8th Circuit, Murphy, J.) Appealed from U.S. District Court, Western District of Missouri, Fenner, J. (Alex Scott McCauley, Overland Park, Kansas, W. David Langston, Olathe, Kansas, for appellants) (Stefan C. Hughes, Kansas City, Missouri, for appellees).

Drug Trafficking Sufficiency Of Evidence Prior Convictions

(1)Where a defendant challenged the sufficiency of evidence to convict him of possessing a firearm as a felon and possession of drugs recovered from his vehicle, the evidence was sufficient to show his dominion and control over the vehicle even though he had given the keys to another person to change a tire.

(2)Where a defendant challenged the admission of a 1996 state conviction in a drug trafficking case, the defendant placed his state of mind at issue when he denied knowledge of drugs recovered from his vehicle, so the evidence was probative of knowledge, intent and absence of mistake, and the conviction was not too remote in time especially since the defendant was incarcerated for much of the period.

Close case

Opinion concurring in part; dissenting in part by Bright, J.: “This is a close case marked by the lack of direct evidence of appellant-defendant Albert Ellis’s (Ellis) guilt. Instead, the government relies, primarily, on circumstantial evidence to sustain Ellis’s convictions. Based upon the evidence submitted at trial, while on somewhat different grounds, I concur in the majority’s conclusion that the circumstantial evidence is sufficient to sustain Ellis’s convictions for possessing a firearm as a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e), and possessing heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). I further agree with the majority that the district court did not abuse its discretion by admitting evidence of Ellis’s prior felony drug-trafficking conviction. I dissent, however, from the majority’s holding that sufficient evidence supported Ellis’s conviction for ‘carr[ying]’ a firearm ‘during and in relation to’ a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A).”

Judgment is affirmed.

U.S. v. Ellis (MLW No. 68929/Case No. 15-2243 – 17 pages) (U.S. Court of Appeals, 8th Circuit, Wollman, J.) Appealed from U.S. District Court, District of Minnesota, Montgomery, J. (Kurt Byron Glaser, Minneapolis, argued for appellant) (Thomas Calhoun-Lopez, Minneapolis, argued for appellee).

Felon In Possession Missouri Law

Where a defendant who pleaded guilty to being a felon in possession of a firearm argued that an amendment to the Missouri Constitution restored his right to possess a firearm, the Missouri Supreme Court has held to the contrary, and the defendant was properly classified as an armed career criminal because his convictions for second-degree domestic assault and second-degree burglary were violent felonies.

Judgment is affirmed.

U.S. v. Phillips (MLW No. 68884/Case No. 15-1712 – 4 pages) (U.S. Court of Appeals, 8th Circuit, Benton, J.) Appealed from U.S. District Court, Western District of Missouri, Fenner, J. (Ronna Ann Holloman-Hughes, Kansas City, Missouri, argued for appellant) (Bruce E. Clark, Kansas City, Missouri, argued for appellee).

Habeas Relief Order Of Commitment NGRI Plea

(1)Where a man was committed to state custody following a plea of not guilty by reason of insanity in an assault case, but a writ of habeas corpus set aside the NGRI plea, and the state argued that the habeas court exceeded its authority, the procedural requirements for acceptance of a NGRI plea were not satisfied in this case resulting in a violation of due process, and the state and trial court did not have authority to accept the NGRI defense in reliance on the basis of a criminal responsibility report, which did not support the defense, so the grant of habeas corpus ordering the man’s release from confinement with the Department of Mental Health is not quashed, and the man will be held on the pending assault charge with his assertion of, and the court’s acceptance of, the NGRI defense vacated.

(2)Where the state argued that a man entitled to habeas relief should be barred from securing that relief because he escaped from confinement, even if the escape rule is presumed to be available to dismiss a petition for writ of habeas corpus, the habeas court in this case did not abuse its discretion in refusing to apply the rule to dismiss the petition since there was no indication that the refusal adversely impacted the justice system, but the habeas court exceeded its authority in awarding jail-time credit.

Due process “The habeas court concluded that Swickheimer’s due process rights were violated because his NGRI defense was accepted without an on-the-record proceeding to determine that the defense was being knowingly and voluntarily asserted and relied on to the exclusion of other defenses. We need not go so far as to conclude that due process requires an on-the-record hearing in every case before the NGRI defense can be accepted. We agree, however, that due process required an on-the-record hearing in this case before Swickheimer’s NGRI defense could be accepted. In the absence of an on-the-record hearing resolving the bona fide doubt about whether Swickheimer had waived all defenses other than NGRI, the April 9, 2007 criminal responsibility report did not support the defense and could not be relied on to accept the defense. As a result, Swickheimer is confined in constraint of his liberty without authority and in violation of due process. Habeas relief is appropriate.”

The habeas court’s record granting the writ of habeas corpus is not quashed in part; and is quashed in part.

State ex rel. Chris Koster v. Oxenhandler (MLW No. 68895/Case No. WD79277 – 44 pages) (Missouri Court of Appeals, Western District, Martin, J.) Original proceeding in certiorari (Gregory M. Goodwin, Jefferson City, for relator) (Susan Kister and Robert B. Ramsey, St. Louis, for respondents).

Involuntary Manslaughter Sufficiency Of Evidence Drug Overdose Death

(1)Where a defendant challenged his conviction for first-degree involuntary manslaughter for the death of another man from a heroin overdose, in a case of first impression the appellate court finds that the evidence was sufficient to support the conviction based on the defendant’s sale of drugs to the victim and provision of advice and help with the paraphernalia, which were affirmative acts that contributed to the death, as well as his failure to act, which, based on the circumstances that imposed a duty on the defendant to check on the victim and obtain medical care after expressing concern about the victim’s reaction to the drug.

(2)Even though a trial court erred in admitting certain evidence including hearsay and non-hearsay testimony in the penalty phase of a trial in an involuntary manslaughter case, the properly admitted evidence of defendant’s involvement in the death and the victim impact evidence constituted substantial evidence that the defendant was a threat to others and the maximum sentence was appropriate.

Judgment is affirmed.

State v. Voss (MLW No. 68664/Case No. ED101396 – 41 pages) (Missouri Court of Appeals, Eastern District, Clayton III, J.) Appealed from circuit court, Lincoln County, Mennemeyer, J. (Margaret M. Johnston for appellant) (Chris Koster and Karen L. Kramer for respondent).

Jurisdiction Finality Of Judgment Execution Challenge

Where plaintiff, who was sentenced to death, sued state officials arguing that the method of execution was unconstitutional, the district court dismissed the complaint without prejudice but would allow the amendment of the complaint to remedy deficiencies, so the order of dismissal was not final, and the court could not invoke Rule 54(b) to certify the decision for appeal because the rule does not apply to a single-claim action, so the appeal must be dismissed for lack of jurisdiction.

Appeal is dismissed.

Johnson v. Lombardi (MLW No. 68930/Case No. 15-3420 – 4 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Appealed from U.S. District Court, Western District of Missouri, Kays, J. (William Brian Gaddy, Kansas City, Missouri, argued for appellant; Jeremy Sean Weis appeared on the brief) (Gregory Michael Goodwin, Jefferson City, argued for appellee).

Juvenile Proceeding Right To Counsel

Where the records at a juvenile’s adjudication and dispositional hearings did not include any discussion over whether the juvenile and his parents were informed of their right to counsel or whether they objected to proceeding without counsel, and the juvenile and his parents were not informed of his right to counsel until after these proceedings, the trial court erred and the court also erred in finding that the father did not have a right to counsel because the parents or guardian of a juvenile are also considered to be parties.

Judgment is reversed and remanded.

In the Interest of: N.R.W. (MLW No. 68832/Case No. ED101597 – 9 pages) (Missouri Court of Appeals, Eastern District, Dowd, J.) Appealed from circuit court, St. Charles County, Schneider, J. (Donald Ray Woolbright, pro se) (Charlene Elizabeth Stockman for respondent).

Mandatory Sentencing Appeal Authority

Where the state challenged a trial court’s decision, which held a three-year mandatory minimum incarceration to be unconstitutional as applied to juveniles, entered before a plea or the determination of guilt at trial, the state’s appeal is dismissed because the state did not have a statutory right to appeal the interlocutory decision, and the decision was not a final judgment for purposes of appeal.

Appeal dismissed.

State v. Smiley (MLW No. 68714/Case No. SC94745 – 10 pages) (Supreme Court of Missouri, Wilson, J.; all concur) Appealed from circuit court, Greene County, Holden, J. (Evan J. Buchheim, Jefferson City, and J. Daniel Patterson and Stephanie L. Wan, Springfield, for appellant) (James Egan, Springfield, for respondent).

Lesser-Included Offense Voluntary Manslaughter Recusal

(1)Where a defendant who was found guilty of charges including first-degree murder argued that the trial court erred in refusing to instruct the jury on the lesser-included offense of voluntary manslaughter, voluntary manslaughter is not a nested, lesser-included offense of either first or second-degree murder, and the instruction was not required because it would have tested only for the presence of deliberation, which was already tested for in the second-degree murder instruction, so there was no plain error.

(2)Where a defendant in a murder case challenged the trial court’s refusal to recuse itself based on participation in plea negotiations, the judgment is affirmed because the defendant did not show a disqualifying bias or prejudice, and he also did not show that the failure to recuse was a manifest injustice.

Judgment is affirmed.

State v. Payne (MLW No. 68854/Case No. ED101948 – 10 pages) (Missouri Court of Appeals, Eastern District, Dowd, J.) Appealed from circuit court, St. Louis City, Garvey Jr., J. (Amy E. Lowe for appellant) (Shaun J. Mackelprang for respondent).

Mandatory Instructions Failure To Read Insufficient Guidance

Where a trial court failed to read three preliminary pattern instructions, which covered the order of proceedings, the duties of judge and jury and juror note taking, to the jury in a burglary case, the failure constituted plain error because the instructions are mandatory and the failure resulted in a manifest injustice because the jury did not receive sufficient guidance, so the judgment is reversed and remanded for a new trial.

Judgment is reversed and remanded.

State v. Robinson (MLW No. 68944/Case No. ED102678 – 19 pages) (Missouri Court of Appeals, Eastern District, Hoff, J.) Appealed from circuit court, St. Louis County, Reno, J. (Amy M. Bartholow for appellant) (Gregory L. Barnes for respondent).

Murder Lesser-Included Offense Cell Phone Evidence

(1)Where a defendant who was convicted of three counts of first-degree murder argued that he was entitled to a lesser-included instruction for the offense of second-degree felony murder, the trial court did not err in rejecting the instruction because it did not conform to the form required by the Missouri-approved instructions, and the instruction was also not a nested, lesser-included offense of the charged offense.

(2)Where a defendant in a first-degree murder case challenged the admission of testimony from the state’s cell phone analyst arguing that the evidence required an expert witness, sufficient evidence in the record supported a finding that the witness was an expert qualified to make such analysis, but Missouri courts have held that such evidence can be introduced by a lay witness, so the admission was not an abuse of discretion. (3)Where a defendant in a first-degree murder case challenged the exclusion of evidence that another individual had the motive and opportunity to commit the crimes, there was no error because the defendant failed to present this evidence at trial, and the trial court also did not err in excluding evidence that the victims’ daughter was biased because the evidence was of tenuous logical relevance, and the convictions are affirmed over the defendant’s remaining evidentiary challenges.

(4)Where crime scene photographs were inadvertently displayed to the jury as the state tried to access other photos, the display did not warrant the extreme remedy of a mistrial because there was no evidence that the mistake was intentional, and all of the photos were eventually admitted into evidence, and the defendant’s death sentence is affirmed in the independent review required by statute.

No underlying felony

Concurring opinion by Fischer, J.: “Second-degree felony murder is not a ‘nested lesser’ and requires proof of a felony in addition to murder. If the jury chose to disbelieve all or any part of the State’s evidence it would result in acquittal of first-degree murder and would not necessarily result in the conviction of second-degree felony murder, which in this case would require proof beyond a reasonable doubt of an uncharged felony. The jury was specifically asked to consider whether the State had demonstrated an underlying felony of robbery in the context of considering aggravating factors for purposes of punishment. The jury did not find a robbery or any felony it was instructed to consider had been committed except three first-degree murders. “In conclusion, I concur in the principal opinion affirming the circuit court’s judgment that the instruction on second-degree felony murder was not in the proper form and, therefore, the circuit court did not err in refusing to give it as tendered. For the additional reasons articulated above, it would not have been error to reject a second-degree felony murder instruction even if it was tendered in compliance with the Notes on Use for MAI-CR 314.04 and 314.06.” Prejudice Opinion concurring in result only by Draper III, J.: “I diverge from the principal opinion’s analysis in several aspects. First, I would find that a trial court is required to submit any lesser-included offense requested by a defendant. Second, I would find the trial court failed to instruct the jury on the lesser-included offense of second-degree felony murder when Robert Blake Blurton (hereinafter, “Blurton”) requested the instruction and the instruction was supported by evidence presented at trial, but due to Blurton’s failure to submit a properly worded instruction or to request the opportunity to modify his instruction, there was no prejudice. Third, there was no need to overrule State v. Derenzy, 89 S.W.3d 472 (Mo. banc 2002), sub silentio. Accordingly, I concur in result only…. “I believe that under the circumstances of this case, Blurton was not prejudiced by the trial court’s failure to provide an instruction for second-degree felony murder that was predicated upon a robbery because the jury explicitly rejected the facts that would have established the robbery by rejecting those applicable aggravating factors in the penalty phase. Further, Blurton did not request an opportunity to modify his proffered instruction to comply with the MAI. Hence, while it was error to not submit the lesser-included instruction, Blurton is unable to demonstrate he was prejudiced by this error.”

Judgment is affirmed.

State v. Blurton (MLW No. 68916/Case No. SC93648 – 61 pages) (Supreme Court of Missouri, Breckenridge, J.; Russell, J., concurs; Fischer, J., concurs in separate opinion filed; Wilson, J., concurs in opinion of Fischer, J.; Draper, J., concurs in result in separate opinion filed; Stith and Teitelman, JJ., concur in opinion of Draper, J.) Appealed from circuit court, Clay County, Harman, J. (Craig A. Johnston, Columbia, for appellant) (Daniel N. McPherson, Jefferson City, for respondent).

Post-Conviction Relief Effectiveness Of Counsel Failure To Object

Where verdict directors in a statutory sodomy case were insufficiently specific and created a risk that the jurors did not unanimously agree as to the acts for which they were finding the defendant guilty, trial counsel’s failure to object was ineffective assistance of counsel since he testified that he had no reasonable trial strategy for the failure to object, and the motion court’s judgment is reversed and remanded.

Reasonable trial strategy

Dissenting opinion by Fischer, J.: “The principal opinion, in holding that the motion court was clearly erroneous in concluding that trial counsel was not ineffective for failing to object to the non-specific verdict directors, fails to give due consideration to the circumstances then before the defense and fails to apply a presumption of reasonableness to counsel’s conduct. Because the defense’s overall trial strategy was furthered by the non-specific verdict directors, and because the risk of non-unanimous verdicts was low from the defense’s perspective, trial counsel’s failure to object to the non-specific verdict directors was a reasonable trial strategy.”

Judgment is reversed and remanded.

Hoeber v. State (MLW No. 69142/Case No. SC95079 – 31 pages) (Supreme Court of Missouri, Breckenridge, J.; Stith, Draper, Teitelman and Russell, JJ., concur; Fischer, J. dissents in separate opinion filed; Wilson, J., concurs in opinion of Fischer, J.) Appealed from circuit court, Buchanan County, Kellogg, J. (Laura G. Martin, Kansas City, Missouri, for appellant) (Evan J. Buccheim, Jefferson City, for respondent).

Post-Conviction Relief Effectiveness Of Counsel Failure To Request Instruction

Where the attorney for a defendant convicted of second-degree burglary and stealing conceded that under the facts the defendant would be guilty of trespass, but the attorney failed to request the lesser-included instruction for trespass, the judgment is reversed and remanded for a new trial because the evidence supported the submission of the instruction and the attorney’s decision not to request the instruction was not objectively reasonable because the instruction on the trespass misdemeanor might have prevented the defendant from receiving an extended term of imprisonment on the felony charge, and the defendant was prejudiced because there was a reasonable probability that the outcome of the trial would have been different with the submission of the instruction.

Judgment is reversed and remanded.

McNeal v. State (MLW No. 68802/Case No. ED102152 – 12 pages) (Missouri Court of Appeals, Eastern District, Clayton III, J.) Appealed from circuit court, St. Louis City, Mullen, J. (Andrew E. Zleit for appellant) (Chris Koster and Shaun J. Mackelprang for respondent).

Post-Conviction Relief Effectiveness Of Counsel Victim’s School Records

Where the school attendance records of an alleged victim of sexual molestation would have impeached the victim about the timing of events and counsel’s testimony showed that he did not investigate the attendance records, the failure to investigate fell outside the range of professional competence, and the motion court did not clearly err in finding that the outcome of the proceedings would have been different if counsel had done a proper investigation and introduced the school records as evidence at trial, so the judgment granting post-conviction relief is affirmed.

Time not essential

Dissenting opinion by Sullivan, J.: “The majority opinion contends the State’s evidence was time-specific and goes so far as to say the evidence established ‘the molestation only could have occurred on October 3, 2005.’ “This position fails to adequately recognize the firmly established legal principles that time is not essential in child abuse cases and it is common for there to be variations, contradictions, or lapses of memory in the testimony of a victim of tender years. The school records would have served only to impeach Victim’s and Sister’s testimony that Victim was home sick on October 3, 2005. In no way do the school records provide a complete defense or establish Movant’s innocence to the charge of first-degree statutory sodomy.”

Judgment is affirmed.

Hannon v. State (MLW No. 68922/Case No. ED102443 – 31 pages) (Missouri Court of Appeals, Eastern District, Odenwald, J.) Appealed from circuit court, St. Louis City, Sweeney Jr., J. (Gwenda Renee Robinson for appellant) (Chris Koster and Karen L. Kramer for respondent).

Probation Revocation Hearing Authority

Where a trial court sought to hold a probation revocation hearing after a defendant’s term of probation expired, the court must discharge the defendant from probation because it lacked authority to hold a hearing after the term ended since it failed to make a reasonable effort to schedule the hearing during the probationary term.

Preliminary writ of prohibition made permanent.

State ex rel. Ryan W. Amorine v. Parker (MLW No. 69221/Case No. SC95301 – 8 pages) (Supreme Court of Missouri, Draper III, J.; all concur) Original proceeding in prohibition (Matthew R. Miller, Rolla, for relator) (Caroline M. Coulter, Jefferson City, and Andrew M. Curley, Salem, for the state)

Right To Bear Arms Non-Violent Felons Amendment 5

Where the state challenged a trial court’s holding that the Missouri Constitution’s right to bear arms was violated by Section 571.070.1, which prohibits non-violent felons from possessing firearms, Amendment 5 does not bar regulation of firearms by non-violent felons, and Section 571.070.1 is a constitutional restriction of a convicted non-felon’s right to bear arms, so the judgment is reversed and remanded because the trial court erred in dismissing a firearms possession charge against a man who was a prior offender with a previous conviction for the non-violent felony of unlawful use of a weapon.

Strict scrutiny

Dissenting opinion by Teitelman, J.: “The principal opinion holds that the section 571.070.1, RSMo Supp. 2013, ban on the possession of firearms by convicted felons is constitutional as applied to nonviolent felons because the restriction is narrowly tailored to serve the compelling state interest in public safety. The State certainly has a compelling interest in public safety. I respectfully dissent, however, because the State fails to establish that essentially abrogating the fundamental constitutional right to keep and bear arms for convicted nonviolent felons is narrowly tailored to serve the interest in public safety. The practical effect of section 571.070.1 is that individuals with no demonstrated propensity toward violence are forever stripped of their fundamental constitutional right to keep and bear arms ‘in defense of [their] home, person, family and property, or when lawfully summoned in aid of the civil power ….’ Irrespective of one’s view of article I, section 23, the fact remains that it establishes a fundamental right that the people of Missouri have retained for themselves and that is subject to restriction only on the narrowest grounds. The categorical and permanent restrictions that section 571.070.1 places on the exercise of this fundamental right are too broad to survive strict scrutiny.”

Judgment is reversed and remanded.

State v. Clay (MLW No. 68778/Case No. SC94954 – 19 pages) (Supreme Court of Missouri, Stith, J.; Breckenridge, C.J., Fischer, Wilson and Russell, JJ., concur; Teitelman, J., dissents in separate opinion filed; Draper, J., concurs in opinion of Teiteman, J.) Appealed from circuit court, St. Louis City, Dierker, J. (Veronica Harwin and Aaron Levinson, St. Louis, for appellant) (David E. Roland, Mexico, and Nick A. Zotos, St. Louis, for respondent).

Right To Bear Arms Non-Violent Felons Amendment 5

Where the state challenged trial court holdings that Amendment 5 does not permit the state to prohibit non-violent felons from bearing arms, non-violent felons can be prosecuted for possession of firearms without violating the Missouri Constitution, and where respondents’ alleged crimes occurred prior to the passage of the amendment, the Missouri Supreme Court has ruled that the pre-amendment version did not prohibit the state from regulating the right of non-violent felons to bear arms, so the judgments dismissing the counts alleging violations of Section 571.070.1 are reversed and remanded.

Strict scrutiny

Dissenting opinion by Teitelman, J.: “I agree with the principal opinion’s conclusion that the former version of article I, section 23 applies and that strict scrutiny is the applicable standard. For the reasons expressed in my dissenting opinion in State v. Clay, I respectfully dissent to the extent the principal opinion holds that restricting the constitutional right of non-violent felons like Mr. Robinson and Mr. Lomax is permissible under the strict scrutiny standard. I would affirm the judgements dismissing the charges against both men.”

Judgment is reversed and remanded.

State v. Robinson; State v. Lomax (MLW No. 68779/Case No. SC94936/SC94989 – 7 pages) (Supreme Court of Missouri, Stith, J.; Breckenridge, C.J., Fischer, Wilson and Russell, JJ., concur; Teitelman, J., dissents in separate opinion filed; Draper, J., concurs in opinion of Teiteman, J.) Appealed from circuit court, St. Louis City. (Veronica Harwin and Aaron Levinson, St. Louis, for appellant) (Patrick R. Kurtz and Marissa Ulman, St. Louis, for respondents).

Robbery Witness Testimony Corroboration Rule

Where a defendant in a first-degree robbery case argued that the testimony of the state’s main witness was so inherently contradictory as to be objectively unreasonable, the defendant’s argument that the corroboration rule and the destructive contradictions rule should be applied is rejected because both rules have been abolished by the Missouri Supreme Court, and the witness was thoroughly cross examined and found to be credible by the trial judge, so the evidence was sufficient for the fact-finder to conclude that the defendant committed the crime.

Judgment is affirmed.

State v. Weaver (MLW No. 68820/Case No. WD78010 – 11 pages) (Missouri Court of Appeals, Western District, Witt, J.) Appealed from circuit court, Cass County, Wagner, J. (Shaun Mackelprang, Jefferson City, for respondent) (Jonathan L. Laurans, Kansas City, Missouri, for appellant).

Search Credit Card Strip Privacy Interest

Where a defendant challenged the denial of his motion to suppress information discovered when officers scanned the magnetic strips on credit, debit and gift cards seized from his vehicle, scanning the strips was not a physical intrusion into a protected area prohibited by the Fourth Amendment, and the defendant did not show a reasonable expectation of privacy, so the district court did not err in finding that reading the magnetic strip was not a search.

More facts required

Dissenting opinion by Kelly, J.: “In my view, the answer to this question depends on whether there are significant technological barriers to an individual rewriting information on the magnetic stripe of their cards, and I would remand the case to the district court to develop evidence on this point… “As cards are able to store more information, the privacy interests they implicate increase. If higher capacity cards are in our future, with the ability for the cardholder to modify what they store for their own private use, any line we could attempt to draw between the cards at issue in this case and those of the future would necessarily be arbitrary. Because I think that resolution of Briere’s motion requires more factual development, I would remand this case to the district court for that purpose. For this reason, I respectfully dissent.”

Judgment is affirmed.

U.S. v. L’Isle (MLW No. 69277/Case No. 15-1316 – 15 pages) (U.S. Court of Appeals, 8th Circuit, Beam, J.) Appealed from U.S. District Court, District of Nebraska, Gerrard, J. (Chad James Wythers, Lincoln, Nebraska, argued for appellant) (William W. Mickle II, Lincoln, Nebraska, argued for appellee).

Search Warrant ‘Corpse Provision’ Severance

Where a detective checked a box on a warrant application indicating probable cause to search for a deceased body or fetus in a theft investigation although he acknowledged he did not reasonably expect to find a body, the trial court’s suppression of all of the seized evidence is reversed and remanded because probable cause did exist to support a search for the other items identified in the warrant, and the valid parts of the warrant could easily be divided and made up a greater part of the warrant, so the trial court could have severed the valid portions of the warrant from the invalid “corpse provision.”

Bad faith

Dissenting opinion by Witt, J.: “The majority’s application of the severance doctrine under the circumstances of this case severely undermines the protection of the citizens of the State of Missouri from unreasonable searches and seizures and severely curtails the ability of trial judges to properly sanction police misconduct. For the reasons explained below, I would find that the trial court appropriately excluded all the evidence seized pursuant to the defective warrant. Where law enforcement deliberately acts in bad faith to undermine the protections of the Fourth Amendment by including items in a search warrant for which they know there is no probable cause to search, I would find that the severance doctrine is inapplicable and the relevant question is whether the application of the exclusionary rule is warranted under the particular facts of the case. This would strike an appropriate balance between the interests of law enforcement and the protections of the Fourth Amendment by allowing trial courts to appropriately sanction egregious or systematic police misconduct.”

Slippery slope

Dissenting opinion by Pfeiffer, J.: “The Fourth Amendment reminds us that a civilized society is often defined by how it treats its weakest members. Today, this court’s majority opinion has defined our society as one that is more concerned with the ‘end’ than the ‘means’ and, in so doing, has lowered the bar for rights even our ‘weakest members’ should reasonably and lawfully expect under the Fourth Amendment. It is a dangerously slippery slope that I cannot support. Thus, I respectfully dissent…. “Here, where the warrant-seeking police officer intentionally misrepresented that probable cause existed to include a corpse provision in the warrant and, as the trial court found, ‘disingenuously failed to call the [warrant-issuing judge’s] attention to the fact that [the officer] had checked the [corpse provision] box,’ official misconduct by the warrant-seeking officer has caused the integrity of the judicial system to be compromised. The trial court’s suppression ruling should be affirmed. Anything less ignores the intent of the Fourth Amendment and corresponding dual purpose for the exclusionary rule.”

Judgment is reversed and remanded.

State v. Douglass (MLW No. 68970/Case No. WD78328 – 43 pages) (Missouri Court of Appeals, Western District, Mitchell, J.) Appealed from circuit court, Jackson County, Schieber, J. (Chris Koster and Rachel Flaster, Jefferson City, for appellant) (John R. Humphrey, Kansas City, Missouri, for respondent).

Sentencing Enhancement Non-Functioning Weapon

Where a defendant who pleaded guilty to being a felon in possession of a firearm challenged the application of a four-level enhancement for using the weapon in connection with a felony offense, arguing that the weapon was not “readily capable of lethal use” as required by the relevant statute since it was not functional, the district court did not err in applying the enhancement because the Missouri Supreme Court has held that a weapon qualifies as “readily capable of lethal use” even if it is not functional.

Wright case

Concurring opinion by Kelly, J.: “I write separately, however, to express some concern with the reasoning of Wright as applied to the facts here. In Wright, the Supreme Court of Missouri was faced with the argument that ‘there was insufficient evidence introduced at trial to find’ that the firearm in that case “was a ‘functional lethal weapon.’…In holding that such evidence was not required, the Supreme Court collapsed the concepts of ‘functional’ and ‘readily capable of lethal use.’ Even if the State is not required to prove that the firearm is ‘functional,’ in the sense that it works as designed, the plain language of the statute does require proof that the firearm is ‘readily capable of lethal use.’ Whether the firearm is functional seems relevant to this inquiry—not necessarily dispositive, but relevant…. “That does not, however, answer the precise question posed by this case: whether the fact that a firearm is completely nonfunctioning is relevant to determining whether it is ‘readily capable of lethal use.’ If faced with this question on facts like those presented here—where all parties agree that Dixon’s pistol was nonfunctioning—it seems possible that the Supreme Court of Missouri would limit the applicability of Wright, and would rather consider the functionality of the firearm in the context of the plain language of the statute, which asks whether the weapon exhibited was ‘readily capable of lethal use.’ Because the Missouri courts have not been presented with the opportunity to consider such a case, however, I concur.”

Judgment is affirmed.

U.S. v. Dixon (MLW No. 69174/Case No. 15-1008 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, Eastern District of Missouri, Limbaugh Jr., J. (Scott Tilsen, Cape Girardeau, argued for appellant) (John Nicholas Koester, Cape Girardeau, argued for appellee).

Sentencing Fleeing Offense Residual Clause

Where a defendant in a firearm possession case challenged his 61-month sentence, any error in applying the residual clause to the defendant’s prior conviction was not plain or obvious error, and the district court properly found that the felony conviction for fleeing from an officer was a crime of violence under prior case law, and the defendant also did not establish plain error under the case law of the circuit by arguing that the residual clause of Section 4B1.2(a)(2) was unconstitutionally vague.

Plain error

Dissenting opinion by Shepherd, J.: “Although the government concedes § 4B1.2(a)(2) is unconstitutionally vague and thus it was error for the court to apply the higher base offense level, the majority concludes the error was not ‘plain’ or ‘obvious’ under the case law of this circuit. The majority has determined our prior decision in Taylor is not binding on the handling of this case because the court did not ‘decide whether the guideline is unconstitutionally vague’ or address other arguments that support applying the vagueness doctrine to the advisory Guidelines. I dissent because this panel should follow our Taylor precedent and vacate Ellis’s sentence and remand to the district court for resentencing.”

Judgment is affirmed.

U.S. v. Ellis (MLW No. 68865/Case No. 15-1261 – 10 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Appealed from U.S. District Court, Western District of Missouri, J. (Ronna Ann Holloman-Hughes, Kansas City, argued for appellant) (Jess E. Michaelsen, Kansas City, argued for appellee).

Sentencing Juvenile Offender De Facto Life Sentence

Where a defendant sentenced as a juvenile challenged his 600-month sentence after the court varied downward at resentencing from his original life sentence for crimes including murder and drug conspiracy charges, the 600-month sentence did not fall within Miller v. Alabama’s ban on mandatory life-without-parole sentences because the defendant was resentenced after a hearing in which the district court thoroughly applied recent precedent, and the defendant did not show that the sentence was substantively unreasonable since the court made an individualized decision, thoroughly explained its sentence and adequately considered evidence of the defendant’s rehabilitation, his youth and the need to avoid unwarranted sentencing disparities.

Judgment is affirmed.

U.S. v. Jefferson (MLW No. 68894/Case No. 15-1309 – 8 pages) (U.S. Court of Appeals, 8th Circuit, Loken, J.) Appealed from U.S. District Court, District of Minnesota, Davis, J. (Mark D. Larsen, Minneapolis, argued for appellant) (Jeffrey S. Paulsen, Minneapolis, argued for appellee).

Sentencing Prior Convictions Crimes Of Violence

Where a defendant challenged his sentence in a felon-in-possession case arguing that the district court erred in holding that two of his prior felony convictions were for crimes of violence, the record did not show whether the district court relied on the residual clause or the force clause for its determination, and the defendant would be entitled to relief if sentenced under the force clause according to recent case law, so the defendant was entitled to plain-error relief.

Remanded.

U.S. v. Robinson (MLW No. 69330/Case No. 15-1697 – 4 pages) (U.S. Court of Appeals, 8th Circuit, Arnold, J.) Appealed from U.S. District Court, Western District of Missouri, Whipple, J. (Robert Kuchar, Kansas City, Missouri, argued for appellant) (Rudolph R. Rhodes, Kansas City, Missouri, argued for appellee; Philip M. Koppe appeared on the brief).

Sex Offender Registry Felonious Restraint ‘Child’

Where a man, who pleaded guilty to unlawful use of a weapon and felonious restraint after he drove a knife through a door while intoxicated injuring his 15-year-old brother, challenged the requirement that he register as a sex offender, the registration requirement arose from the fact that he pleaded guilty to felonious restraint while the victim was a child even though there was no sexual element to the offense, and the removal of the man’s name from the registry is affirmed because “child” was not defined in the statute, and the trial court did not err in interpreting the word to refer to persons less than 14 years old based on legislative context.

Judgment is affirmed.

In re: Graham Kersting v. Replogle (MLW No. 69260/Case No. WD78983 – 10 pages) (Missouri Court of Appeals, Western District, Ahuja, J.) Appealed from circuit court, Boone County, Oxenhandler, J. (George A. Batek and Nancy A. McKerrow, Columbia, for respondent) (Andrew J. Crane, Columbia, for appellant).

Synthetic Cannabinoid Drugs Sufficiency Of Evidence Sentencing

(1)Where a defendant openly sold glass pipes and smoking paraphernalia but packets containing synthetic cannabinoid products were in packets hidden under the counter that the defendant produced in response to an undercover agent’s use of a street name for the product, and a search of defendant’s home, car and store yielded hundreds of such packets, the evidence was sufficient to show that the defendant was aware that she possessed and sold a controlled substance of some kind, and the evidence was also sufficient to show that the defendant knew the special features of the products that made them a controlled substance analogue, so the district court properly denied the motion for acquittal.

(2)Where defendants convicted in a drug-distribution case argued that the district court improperly determined their base offense levels when it found that their synthetic cannabinoids were more like pure THC than an equal quantity of marijuana, the court properly relied on expert testimony to find that THC was the most similar substance to the defendant’s product, and the court properly found that the weight of the mixture dictated the drug-quantity weight at sentencing.

Marijuana equivalency

Opinion concurring in part; dissenting in part by Bright, J.: “I disagree with the majority’s conclusion that the sentencing judge properly applied a marijuana equivalency ratio of 1:167 after finding the synthetic cannabinoid sprayed onto plant material (‘synthetic cannabinoid potpourri’) was most analogous to pure Tetrahydrocannabinol (“THC”) under Application Note 6 of U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2D1.1…. “Because the government failed to present evidence on the actual effect the synthetic cannabinoid potpourri had on the central nervous system, the district court should be limited to the current evidentiary record and the sentencing judge should impose a marijuana equivalency ratio of 1:1.”

Judgment is affirmed.

U.S. v. Ramos (MLW No. 68773/Case No. 15-1592 – 23 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, Northern District of Iowa, Reade, J. (John Leonard Lane, Cedar Rapids, Iowa, and Michael Kevin Lahammer, Cedar Rapids, Iowa, argued for appellants) (Mark Tremmel, Cedar Rapids, Iowa, argued for appellee; Dan Chatham appeared on the brief).

Uncharged Assault Facebook Posts Self Defense

Where a defendant in a domestic assault case argued that the trial court abused its discretion in admitting evidence of an uncharged assault on the victim, and the evidence was her Facebook posts of her injuries, the posts were relevant to explain why the victim changed her testimony at trial and to show that she fabricated testimony because she was afraid of the defendant, but substantial evidence including the victim’s testimony supported a self-defense instruction, so the conviction for second-degree domestic assault is reversed and remanded for further proceedings on that charge.

Judgment is affirmed in part; reversed and remanded in part.

State v. Seals (MLW No. 68808/Case No. SD33621 – 9 pages) (Missouri Court of Appeals, Southern District, Sheffield, J.) Appealed from circuit court, Greene County, Holden, J. (Samuel E. Buffaloe, Columbia, for appellant) (Daniel Neal McPherson, Jefferson City, for respondent).

Venue Denial Of Change Waiver

Where a defendant in a statutory sodomy case challenged the denial of his timely filed application for a change of venue, the trial court did not err in denying the Rule 32.03 application because the defendant allowed the application to languish in the case file for nine months while telling the court that he had no pending motions and the case should remain set for trial and did not bring up the pending application until the day before trial, so the defendant waived his right to a change of venue.

Notice

Concurring opinion by Breckenridge, J.: “I concur in the principal opinion’s holding affirming the trial court’s finding that Mr. Chambers waived his right to a change of venue by failing to present the application to the trial court until the eve of trial. I further concur with the separate opinion’s conclusion that Mr. Chambers was not entitled to a change of venue because he failed to comply with Rule 32.03(b) by not providing all parties notice of the time when the application for change of venue would be presented to the trial court. Mr. Chambers’ counsel did not sufficiently comply with the notice requirement by raising the matter with the trial court on the eve of trial.” Rule change Concurring opinion by Fischer, J.: “There was no waiver of Chambers’ right to a change of venue which Chambers’ first lawyer asserted when he filed the application under Rule 32.03…I concur in the result reached in the principal opinion, however, because no notice of hearing was filed and served on the parties. By failing to file and serve notice as required, Chambers failed to satisfy this Court’s rule…. “This Court should always follow its own rules until it changes them…Article V, § 5 of the Missouri Constitution provides supervisory power to change rules so it can be done in an orderly fashion and not ad hoc on a case-by-case basis.”

Judgment is affirmed.

State v. Chambers (MLW No. 68775/Case No. SC95094 – 17 pages) (Supreme Court of Missouri, Russell, J.; Stith, Draper and Teitelman, JJ., concur; Breckenridge, C.J., concurs in separate opinion filed; Fischer, J., concurs in result in separate opinion filed; Breckenridge, C.J., and Wilson, J., concur in opinion of Fischer, J.) Appealed from circuit court, Crawford County, Parker, J. (Margaret M. Johnson, Columbia, for appellant) (Dora A. Fichter, Jefferson City, for respondent).

Victim Tampering Sufficiency Of Evidence First Impression

Where a defendant in a rape case wrote three letters to a teenage niece asking her to talk to the victim at family events about recanting while his appeal of a forcible rape conviction was pending, an issue of first impression is whether the prosecution of an information ceases upon conviction, and the appellate court holds that a prosecution does not cease at conviction, so in this case the defendant’s conviction and sentence were on direct appeal and the prosecution had not ceased when he sent the letters, so the state proved all of the elements required under the victim-tampering statute.

Judgment is affirmed.

State v. Eckert (MLW No. 68897/Case No. WD78163 – 11 pages) (Missouri Court of Appeals, Western District, Newton, J.) Appealed from circuit court, Livingston County, Chapman, J. (Samuel Buffaloe, Columbia, for appellant) (Karen Kramer, Jefferson City, for respondent).

Warrantless Search Personal Effects Control

Where a police officer after a scuffle searched a plastic bag that a defendant was holding after he was handcuffed and seated in a police car, the search of the bag, which contained heroin, was not a lawful search incident to arrest because the bag was not within the man’s immediate control at the time of the search, but the evidence did not need to be excluded since appellate court authority allowed the search.

Purse exception

“A major source of the court of appeals’ misunderstanding regarding this well-established rule appears to be based on language taken out of context from United States v. Edwards, in which the Supreme Court stated, ‘It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.’ 415 U.S. 800, 803 (1974). This broad statement that the court of appeals has relied upon was only dicta…. “It is not that these items may be searched because they are part of the person; rather, they may be searched because they are within the arrestee’s immediate control. When that fact is no longer true, they may not be searched incident to arrest because the justifications for conducting such a search no longer persist. Gant, 556 U.S. at 339; Chadwick, 433 U.S. at 15. The court of appeals’ distinction for purses and other similar personal effects is not consistent with Supreme Court precedent.”

Time of arrest

Concurring opinion by Wilson, J.: “ Because the bag was in Carrawell’s immediate possession and seized at the time of the arrest, the search was a lawful search incident to arrest under Robinson. On this basis, I would affirm the circuit court’s judgment.” Exclusionary rule Opinion concurring and dissenting in part by Teitelman, J.: “I concur with the principal opinion to the extent it holds that the search was unlawful because it occurred while Mr. Carrawell’s belongings were beyond his immediate control. I respectfully dissent from the principal opinion’s holding that the exclusionary rule does not apply…. “Given the overwhelming weight of authority holding that searches such as the one conducted in this case are illegal, the exclusionary rule should apply. The exclusionary rule incentivizes the government to exercise its considerable authority with due regard for constitutionally protected individual rights. If the government can justify illegal searches by parsing through volumes of court of appeals cases until locating an erroneously decided case supporting the desired result, then the incentives provided by the exclusionary rule are diluted.”

Judgment is affirmed.

State v. Carrawell (MLW No. 68669/Case No. SC94927 – 38 pages) (Fischer, J.; Stith, and Draper, JJ., concur; Wilson, J., concurs in separate opinion filed; Breckenridge, C.J., and Russell, J., concur in opinion of Wilson, J.; Teitelman, J., concurs in part and dissents in part in separate opinion filed) Appealed from circuit court, St. Louis City, Ohmer, J. (Srikant Chigurupati, St. Louis, for appellant) (Shaun J. Mackelprang, Jefferson City, for respondent).

Witness Testimony Hearsay Exclusion Due Process

Where a defendant in a second-degree murder and burglary case challenged the trial court’s exclusion of witness testimony during the penalty phase of his trial, the exclusion of the testimony, which was a confession to the crime made by another participant to a close friend, violated the defendant’s due process rights, so the judgment is vacated and the case is remanded since the proposed testimony met the three indicators of reliability for an exception to the rule against hearsay for out-of-court statements that exonerate the accused and are “originally made and subsequently offered at trial under circumstances providing considerable assurance of their reliability.”

Prejudice

Dissenting opinion by Wilson, J.: “The principal opinion correctly notes that ‘[r]eversal due to an evidentiary error requires a showing of prejudice.’ State v. McFadden, 369 S.W.3d 727, 736 (Mo. banc 2012) (quoting State v. Taylor, 298 S.W.3d 482, 492 (Mo. banc 2009)). There was no prejudice from the trial court’s exclusion of Mr. King’s testimony concerning Jonathan’s out-of-court inculpatory statement because evidence that Jonathan was the shooter already was before the jury. Marcus Stephens, offered by the defense, testified that Eli, Cody and Jonathan each claimed to have shot the Victim.”

Vacated and remanded.

State v. Hartman (MLW No. 68912/Case No. SC95110 – 19 pages) (Supreme Court of Missouri, Draper III, J.; Breckenridge, C.J., Stith, Teitelman and Russell, JJ., concur; Wilson, J., dissents in separate opinion filed. Fischer, J., concurs in opinion of Wilson, J.) Appealed from circuit court, Jasper County, Crane, J. (Amy M. Bartholow, Columbia, for appellant) (Dora A. Fichter, Jefferson City, for respondent).

Adoption Grandparent Petition Mootness

Where a grandmother argued that her due process rights were violated when her adoption petition for her grandchild was dismissed without notice and hearing, the grandmother did not file a motion to intervene in the foster parent adoption case, and the grandmother’s appeal is dismissed as moot because the trial court terminated the natural parents’ rights and granted the foster parents’ adoption petition and that judgment became final.

Appeal dismissed.

In the Interest of: K.R. v. D.D. (MLW No. 68817/Case No. WD78852 – 4 pages) (Missouri Court of Appeals, Western District, Mitchell, J.) Appealed from circuit court, Jackson County, Torrence, J. (Kyla J. Grove and A. Renae Adamson, Kansas City, Missouri, for respondent) (Henry C. Service, Kansas City, Missouri, for appellant).

Child Custody Joint Legal Parental Decisions

Where a trial court awarded joint legal custody but made a finding that the parents shared no common beliefs and were unwilling to make parental decisions together, the evidence did not support the award, so the order of joint legal custody is reversed and remanded.

Judgment is reversed and remanded.

Reno v. Gonzales (MLW No. 69154/Case No. WD78439 – 11 pages) (Missouri Court of Appeals, Western District, Ahuja, J.) Appealed from circuit court, Clay County, Chamber-lain, J. (Laura C. Bornstein, Kansas City, Missouri, for appellant) (Jeramie Reno, pro se).

Child Custody Parental Decisions

Where a father challenged an award of joint legal and physical custody of their child arguing that the evidence did not show a commonality of belief regarding parental decisions, the father’s point was multifarious and not preserved for review, and the judgment is affirmed because the father failed to show that it was against the weight of the evidence.

Judgment is affirmed.

Scrivens v. Scrivens (MLW No. 69195/Case No. SD33908 – 9 pages) (Missouri Court of Appeals, Southern District, Lynch, J.) Appealed from circuit court, Pulaski County, Wig-gins, J. (Christine H. Hutson, Lebanon, and Paul Trees Graham, Jefferson City, for respondent) (Richard Don Crites, Springfield, for appellant).

Grandparent Visitation Standing Judicial Estoppel

Where a child’s maternal grandparents adopted her after a termination of parental rights, and the paternal grandmother sought grandparent visitation after dismissing her competing petition for adoption, the paternal grandmother lost standing to assert a right to grandparent visitation after the judgment of adoption in favor of the maternal grandparents be-came final and no timely appeal was made, and the trial court’s default judgment granting the visitation is vacated because the paternal grandmother had no statutory right to seek visitation, and the trial court could not grant standing through judicial estoppel despite testimony from the maternal grandparents agreeing to allow the visitation because a litigant cannot obtain standing to bring an action solely based on judicial estoppel.

First impression “Whether to apply judicial estoppel to a standing determination appears to be an issue of first impression in Missouri…. “In applying judicial estoppel, the circuit court did not discuss the three factors established by Zedner but we find that, under the test outlined, judicial estoppel may have been war-ranted. However, this is the unusual case in which the trial court sought to apply judicial estoppel to grant a party standing to bring a visitation claim, when the party otherwise would lack standing to proceed. Although we accept that in many cases the court would have been free in its discretion to apply the doctrine of judicial estoppel under similar facts, judicial estoppel cannot be applied to grant jurisdiction over a claim that could not otherwise be brought.”

Remanded.

Smith v. Duesenberg (MLW No. 68700/Case No. WD78318/WD78492 – 19 pages) (Missouri Court of Appeals, Western District, Witt, J.) Appealed from circuit court, Platte County, Hansbrough, J. (Jason C. Conkright, Kansas City, Missouri, for appellants) (William M. Quitmeier, Kansas City, Missouri, for respondent).

Guardianship Fitness Determination

Where a father challenged a trial court’s grant of guardianship of his son to the mother’s aunt and uncle, the court misapplied the law by failing to consider the father’s fitness independently and by finding the father unfit by comparing him to the third parties seeking guardianship, so the judgment is reversed and remanded because there was no substantial evidence to support a finding of unfitness.

Standard of review

Dissenting opinion by Clayton, J.; “In sum, based upon the language in L.G.T. indicating reversal is not necessary due to the extent the trial court misapplied the law, the standard of review, as well as the record and issues presented on appeal to this Court, I do not have a firm belief that the trial court’s decision finding Father unfit is wrong. In addition, I do not have a firm belief that the trial court’s decision finding the best interests of L.M. were served by placing his custody with Petitioners as of the time of the judgment is wrong given the evidence presented that Petitioners adequately cared for and provided stability for L.M. since he was born. Therefore, I would affirm the trial court’s judgment granting Petition-ers’ petition for letters of guardianship and conservatorship of L.M.”

Judgment is reversed and remanded.

In re L.M. (MLW No. 69131/Case No. ED102342 – 19 pages) (Missouri Court of Appeals, Eastern District, James M. Dowd, J.) Appealed from circuit court, Ralls County, Mobley, J. (Brian Daniel Sleeth for appellant) (Michael Dean Holliday for respondent).

Breath Test Refusal Attorney Contact 20-Minute Period

Where a driver who was arrested for DWI concluded her call after 19 and ½ minutes and told a trooper that she would not take the breath test, the trooper was not required to wait the full 20 minutes before asking the driver to take the test because the driver was allowed to contact her attorney, and she completed the attempt by talking for more than 15 minutes before ending the call even though she later argued that the call was cut off prematurely.

Abandonment Concurring opinion by Rahmeyer, J.: “I concur in the result and with the majority opinion as far as it goes; however, I question the implication in the majority opinion that, once the driver has reached an attorney by telephone, the twenty-minute provision in the statute has been complied with. The critical issue, as I see it, is whether Appellant abandoned her attempts to contact an attorney within the twenty-minute period allowed by section 577.041, RSMo Cum. Supp. 2013…. “The trial court was not obligated to believe that she was cut off by the phone system and was entitled to believe that she had voluntarily terminated her call. I concur because the evidence supported the trial court’s factual finding that Appellant had abandoned her attempt to contact an attorney, thus, complying with the statute.”

Judgment is affirmed.

Rials v. Director (MLW No. 68859/Case No. SD33830 – 10 pages) (Missouri Court of Appeals, Southern District, Burrell, J.) Appealed from circuit court, Stone County, Stephens, J. (Jonathan Michael Eccher, St. Louis, and John Healy Moffitt, Leawood, Kansas, for appellant) (Rachel M. Jones, Jefferson City, for respondent).

DWI Breath Test Calibration

Where the state challenged the trial court’s finding that it failed to lay a proper foundation for the admission of a driver’s breath test, the judgment is affirmed because the Missouri Supreme Court held in Stiers v. Director of Revenue that breath analyzers must be calibrated with three standard solutions as required by statute.

Judgment is affirmed.

Wagner v. Director of Revenue (MLW No. 68757/Case No. SD33572 – 4 pages) (Missouri Court of Appeals, Southern District, Francis Jr., J.) Appealed from circuit court, Crawford County, Bernstein, J. (Travis Lavern Noble Jr. and Joshua Curtis Sindel, Clayton, for respondent) (Daniel Neal McPherson, Jefferson City, for appellant).

DWI Breath Test Foundation

Where the Director of Revenue challenged a trial court’s exclusion of the results of a driver’s breath test, the judgment is affirmed because the court properly found that the director failed to lay a proper foundation for the admission of the test since the machine on which it was conducted was calibrated using only one standard solution, and the regulation in effect at the time of the test required tests using three standard solutions of different strengths, so the calibration was not valid.

Calibration

Dissenting opinion by Wilson, J.: “I agree that the trial court applied the correct version of 19 CSR 25-30.051(2) in this case, but I write separately because nothing in this regulation requires that breath analyzers be calibrated with three different solutions. Instead, the Department of Health and Senior Services regulations require only that the three solutions approved for use in calibrating breath analyzers be obtained from approved suppliers and that they conform to stated standards (i.e., that they not vary more than five percent from the intended strength). The Director laid a proper foundation for admission of the breath test results, and the trial court should not have excluded those results from evidence. Accordingly, I would vacate the judgment of the trial court and remand.”

Judgment is affirmed.

Stiers v. Director (MLW No. 68670/Case No. SC9840 – 16 pages) (Supreme Court of Missouri, Stith, J.; Fischer, Draper and Teitelman, JJ., concur; Wilson, J., dissents in separate opinion filed; Breckenridge, C.J., and Russell, J., concur in opinion of Wilson, J.) Appealed from circuit court, St. Charles County, Thornhill, J. (Daniel N. McPherson, Jefferson City, for appellant) (Robert Adler, St. Louis, for respondent).

Voter Registration Requirement State Representative Contest ‘Qualified Voter’

Where a candidate for state representative challenged the state constitution’s requirement that she be a registered voter for two years to hold office, the constitution’s reference to “qualified voter” has been interpreted to mean a registered voter, and the candidate’s First Amendment challenge failed because her failure to register did not constitute symbolic speech entitled to protection, and she did not show that the requirement was an unjustifiable burden since it only temporarily delayed her ability to seek office.

Substantial burden

Dissenting opinion by Stith, J.: “I would hold that the two-year durational voter registration requirement is unconstitutional. I believe that it places a substantial burden on the First and Fourteenth amendment rights of Ms. Johns and voters and is not narrowly-tailored to achieve the State’s purported interest in promoting civic education and ensuring candi-dates who have an ‘established stake’ in their community. But, even if this Court were correct in applying rational basis review, Missouri’s two-year voter registration requirement is not rationally related to a legitimate state interest.”

Judgment is affirmed.

Peters v. Johns (MLW No. 69205/Case No. SC95678 – 45 pages) (Supreme Court of Missouri, Russell, J.; Fischer, Draper, and Wilson, JJ., concur; Stith, J., dissents in separate opin-ion filed; Breckenridge, C.J., and Teitelman, J., concur in opinion of Stith, J.) Appealed from circuit court, St. Louis City, Bush, J. (David E. Roland, Mexico, argued for appellant) (Matthew B. Vianello, Clayton, for respondent) (James R. Layton, Jefferson City, for the state).

Voting Hours Extension Lack Of Ballots

Where registered voters and the St. Louis County Board of Election Commissioners petitioned the appellate court for an emergency writ of mandamus to extend the voting hours for precincts that ran out of ballots on April 5, 2016, mandamus was proper to prevent an injustice due to a bipartisan request, the lack of opposition from the Missouri Attorney General and the board’s admitted failure to provide sufficient ballots.

Writ issued.

St. Louis County Board of Election Commissioners v. McShane (MLW No. 69264/Case No. ED104196 – 11 pages) (Missouri Court of Appeals, Eastern District, Mooney, J.) Writ of Mandamus (Jane E. Dueker, John J. Coatar, Arthur D. Gregg, Darold E. Crotzer Jr. and Angela B. Gabel for relators) (James R. Layton for respondent).

Age Discrimination MHRA Attorney’s Fees

(1)Where a university employer challenged a jury verdict finding it liable for age discrimination against a former department director, comments made by a review panel member were properly admitted because although he was not a decision maker, he was in a position to influence the decision maker, and the evidence was sufficient to support the determina-tion that the employee’s age was a contributing factor for his termination.

(2)Where an employer liable in an age discrimination action sought to reduce the award of attorney’s fees by half, the rate of $325 was not excessive despite the rate for the area be-ing in the $220-250 range since affidavits from two attorneys supported the reasonableness of the rate for the type of case, and the employer did not justify its claim that the level of success warranted a 50 percent reduction.

Judgment is affirmed.

Ferguson v. Curators of Lincoln University (MLW No. 69233/Case No. WD78752 – 22 pages) (Missouri Court of Appeals, Western District, Mitchell, J.) Appealed from circuit court, Cole County, Beetem, J. (Michael G. Berry, Marshall V. Wilson and Theodore L. Lynch, Jefferson City, for appellant) (Kent L. Brown and Judith Anne Willis, Jefferson City, for respondent).

Arbitration Agreement Class-Action Waiver NLRB

Where the National Labor Relations Board found that an employer violated the National Labor Relations Act by enforcing a mandatory arbitration agreement that waived employees’ rights to pursue class actions for employment disputes, the board’s order may not be enforced because it conflicts with the court’s holding in Owen v. Bristol Care, Inc., but the board’s finding that the employer violated the act because its employees would reasonably interpret the arbitration agreement to limit their rights to file unfair labor practice charges with the board was reasonable, so the order is enforced with respect to this issue, and the employer did not show that the petitioner’s unfair labor practice charge was time-barred.

Order is enforced in part.

Cellular Sales of Missouri, LLC v. National Labor Relations Board (MLW No. 69249/Case No. 15-1620 – 12 pages) (U.S. Court of Appeals, 8th Circuit, Wollman, J.) National Labor Relations Board (Kevin D. Jewell, Houston, argued for petitioner; C. Larry Carbo III and Julie R. Offerman and T. Christopher Bailey appeared on the brief) (Jeffrey William Burritt, Washington, D.C., argued for respondent).

Employment Contract Golden Parachute Payment FDIC Determination

Where a bank executive sought payment for the one year remaining on his employment contract after his termination, and the Federal Deposit Insurance Corporation advised that the payment was a prohibited “golden parachute” that could not be made without prior agency approval, the district court did not err in upholding the FDIC determination since the finding that the payment was contingent on his termination was not arbitrary or capricious, and the payment was not a vested benefit, so summary judgment for the bank is affirmed.

Judgment is affirmed.

Rohr v. Reliance Bank (MLW No. 69331/Case No. 15-2392 – 11 pages) (U.S. Court of Appeals, 8th Circuit, Ericksen, J.) Appealed from U.S. District Court, Eastern District of Mis-souri, Jackson, J. (Elkin L. Kistner, Clayton, argued for appellant; Patricia A Hageman and Sean M. Elam appeared on the brief) (Jerome A. Madden, Arlington, Virginia, and Andrew J. Scavotto, St Louis, argued for appellees; Colleen J. Boles, Kathryn R. Norcross, John W. Moticka and Christina D. Arnone appeared on the briefs).

FLSA Overtime Covered Enterprise

Where a district court found that a day care company failed to compensate overtime at the required rate, reclassified wages to avoid overtime payments and paid employees late, the employer waived its claim that its employees were exempt as teachers by failing to raise it, and the court did not err in finding that the employer was a covered enterprise under the Fair Labor Standards Act, and the court’s determination of wages was not unreasonable where the employer failed to keep accurate records.

Judgment is affirmed.

Perez v. Contingent Care, LLC (MLW No. 69015/Case No. 15-1074 – 11 pages) (U.S. Court of Appeals, 8th Circuit, Shepherd, J.) Appealed from U.S. District Court, Western District of Missouri, Wimes, J. (Robert E Arnold III, Olathe, Kansas, argued for appellant) (Sarah Kay Marcus, Washington, D.C., argued for appellee).

Race Discrimination Adverse Employment Action Material Working Conditions

Where a white police sergeant brought claims of race discrimination and conspiracy to discriminate against three supervisors after an African-American woman was picked instead of him for the assistant director position for the police academy, the jury verdict for the plaintiff is affirmed because even though there was no change in pay or rank, the plaintiff showed a change in material working conditions since the position was high profile with significant supervisory duties and regular daytime hours with holidays off, which was sufficient to support a finding that the plaintiff suffered an adverse employment action.

Judgment is affirmed.

Bonenberger v. St. Louis Metropolitan Police Department (MLW No. 68692/Case No. 14-3696 – 10 pages) (U.S. Court of Appeals, 8th Circuit, Riley, J.) Appealed from U.S. District Court, Eastern District of Missouri, Perry, J. (Colleen M. Vetter, St Louis, argued for appellant; Christopher Hoell appeared on the brief) (Lynette Marie Petruska, St Louis, argued for appellee; C. John Pleban appeared on the brief).

Retaliation Causal Connection Punitive Damages

(1)Where plaintiff was denied opportunities for special work assignments after he participated in an investigation of discrimination claims brought against his supervisor and the employer admitted that the supervisor’s actions were the result of the plaintiff’s participation, the facts were sufficient to bring a claim of retaliation, the employer did not show error in the submission of verdict forms, and sufficient evidence established the causal connection between the plaintiff’s protected activity and the alleged retaliation, so the judgment for the plaintiff is affirmed.

(2)Where an employer in a retaliation case did not raise an objection to the submissibility of punitive damages in its motions for directed verdict, the employer did not preserve its point for appeal, and the employer also did not challenge the submission of punitive damages with the required specificity.

Judgment is affirmed.

Walsh v. City of Kansas City (MLW No. 68737/Case No. WD78035 – 24 pages) (Missouri Court of Appeals, Western District, Gabbert, J.) Appealed from circuit court, Jackson County, Scheiber, J. (Douglas McMillan, Kansas City, Missouri, for respondent) (Kirk Holman, Thomas Ralston and Kenneth Kinney, Kansas City, Missouri, for appellant).

Retaliation Political Affiliation Discrimination

Where a county employee claimed that she was dismissed in retaliation for her political affiliation with the county’s former circuit clerk, an elected official, and that she was discriminated against based on gender because a less-qualified man was hired for her former position, summary judgment for the defendant circuit clerk is affirmed because political loyalty was an appropriate job requirement, so her dismissal was not impermissible, and the plaintiff failed to show that the failure to reappoint her was discrimination since she did not show that the defendant’s reasons for the decision were pretextual.

Judgment is affirmed.

DePriest v. Milligan (MLW No. 69227/Case No. 15-1365 – 12 pages) (U.S. Court of Appeals, 8th Circuit, Melloy, J.) Appealed from U.S. District Court, Eastern District of Arkansas, Baker, J. (Luther Oneal Sutter, Benton, Arkansas, argued for appellant) (David M. Fuqua, Little Rock, Arkansas, argued for appellee; Whitney F. Moore appeared on the brief).

Sex Discrimination Remedial Action

Where a truck driver brought a sexual discrimination action against her employer based on the conduct of her driving partner who exposed himself to her repeatedly and propositioned her while taking away her keys and phone, the district court erred by not considering the partner’s conduct on a rest period and by finding that the plaintiff did not report the offensive conduct until June 1, and issues remained as to whether the employer took appropriate remedial action, so the court erred in dismissing the sexual har-assment claim, but the court properly granted summary judgment to the defendant on the plaintiff’s retaliation claim.

No time requirement

Dissenting opinion by Smith, J.: “No specific time requirement exists for employers to respond to sexual harassment claims, but it must be reasonable under the circum-stances. Carter, 173 F.3d at 702 (setting forth factors to assess the reasonableness of remedial measures, one of which is ‘the amount of time that elapsed between the notice and remedial action’). Applying existing circuit precedent, TNI took remedial action within a reasonable time of receiving notice from Nichols.”

Judgment is reversed and remanded.

Nichols v. Tri-National Logistics, Inc. (MLW No. 68631/Case No. 15-1153 – 15 pages) (U.S. Court of Appeals, 8th Circuit, Murphy, J.) Appealed from U.S. District Court, Eastern District of Arkansas, Wright, J. (David A. Hodges Sr., Little Rock, Arkansas, argued for appellant) (David R. Bohm, St Louis, argued for appellee; Kara D. Krawzik ap-peared on the brief).

Successor Employer Continuation Of Business

Where a construction company challenged the determination that it was a successor employer under Section 288.110, the termination by the predecessor employer of all employees before the acquisition did not prevent such a finding, and substantial evidence supported the finding that the construction company continued the business without interruption, so the judgment is affirmed.

Judgment is affirmed.

Mertens Construction Company, Inc. v. Division of Employment Security (MLW No. 69182/Case No. WD78655 – 14 pages) (Missouri Court of Appeals, Western District, Witt, J.) Appealed from the Labor and Industrial Relations Commission (Thomas K. Riley and Jacquelyn Brazas, Fulton, for appellant) (Sara H. Harrison and Mandolin Jack-son, Jefferson City, for respondent).

Union Membership Solicitation Censure

Where a union argued that an employer violated the National Labor Relations Act by censuring an employee for soliciting union membership and by posting a sign prohibiting discussion of unions during working time, and the administrative law judge ruled in favor of the union on both allegations, the employer’s petition for review is granted because there was not substantial evidence to support findings that an employee did not engage in solicitation, so the board’s conclusion that the employer violated the act is reversed, but the board properly found that the employer violated the act by maintaining an overly broad no-solicitation rule.

Close call

Opinion concurring in part; dissenting in part by Kelly, J.: “I agree with the court that this case presents a close call. And I agree that providing information or mentioning union authorization cards, without more, is not solicitation. But I disagree that the conversation in the restroom and Haines’s statement on the production floor amounted to a single concerted effort to obtain signatures. Based on the record presented, I would conclude there is substantial evidence to support the Board’s finding that Haines did not engage in solicitation.”

Judgment is reversed.

ConAgra Foods, Inc. v. National Labor Relations Board (MLW No. 68811/Case No. 14-3771 – 22 pages) (U.S. Court of Appeals, 8th Circuit, Beam, J.) National Labor Rela-tions Board (Chad P. Richter, Omaha, Nebraska, argued for petitioner; Ross M. Gardner appeared on the brief) (Milakshmi V. Rajapakse, Washington, D.C., argued for re-spondent) (James B. Coppess, Washington, D.C., argued for intervenor; Pamela Newport and Nicholas T. Hart appeared on the brief).

Wrongful Discharge Whistleblower Engineering Practices

Where a professional engineer, who challenged the dismissal of his wrongful termination claim, reported to his supervisors that the employer was violating the prohibition against licensed engineers’ assisting non-licensed engineers in the unauthorized practice of engineering on a boiler project, the allegations were sufficient to support a whistle-blowing claim even though the plaintiff referred to Wyoming and Texas laws because the public policy that the employer was alleged to have violated was based in Missouri’s regulations, and the public policy mandate that licensed engineers may not delegate engineering tasks to unlicensed engineers in Missouri or elsewhere was not vague, so the plaintiff stated a claim for wrongful discharge in violation of public policy based on whistleblowing, and the plaintiff also stated a claim for wrongful discharge for whistleblow-ing about the unsafe moving of a boiler while employees worked underneath.

Judgment is reversed and remanded.

Van Kirk v. Burns & McDonnell Engineering Company, Inc. (MLW No. 68936/Case No. WD78577 – 12 pages) (Missouri Court of Appeals, Western District, Hardwick, J.) Appealed from circuit court, Jackson County, Roldan, J. (Edward E. Keenan, Kansas City, Missouri, for appellant) (Paul D. Seyferth, and Deena B. Jenab, Kansas City, Mis-souri, for appellee).

Asylum Threat Of Persecution Social Group

Where petitioners sought asylum, withholding of removal and relief under the Convention Against Torture based on family members’ prior romantic relationships with Mexican gang members, the petitioners did not identify a particular social group that warranted protection and the source of the harm was not the government or a group that the government was unwilling to control.

‘Unable to control’

Dissenting opinion by Murphy, J.: “The record indicates that Mexican authorities may be ‘unwilling and unable to control’ the Matazetas gang. See Menjivar v. Gonzales, 416 F.3d 918, 921 (8th Cir.2005) (asylum applicant must show government unwilling or unable to control nongovernmental persecutors). Although one online news article report-ed that the Mexican government had deployed police and troops to Veracruz to combat violence by the Matazetas, the same article stated that a one month reduced murder rate in 2012 may have been a mere ‘blip’ since ‘it’s not uncommon for a couple of relative calm months to interrupt an area’s ongoing descent.’ The record also includes petitioner Israel’s testimony before the immigration judge that while he and his family were hiding in Xalapa, a city about 100 kilometers from their home in Veracruz, a Mexican government employee had advised his father that petitioners should ‘get out of there immediately’ because they were ‘under a big risk.’”

Petition denied.

Saldana v. Lynch (MLW No. 69108/Case No. 15-1226 – 12 pages) (U.S. Court of Appeals, 8th Circuit, Colloton, J.) Petition for review of an order of the Board of Immigra-tion Appeals (Daniel Martin White, Minneapolis, argued for petitioner; Kathryn M. Short appeared on the brief) (Brett Kinney, Washington, D.C., argued for respondent; Ben-jamin Mizer, Terri J. Scadron and Corey L. Farrell appeared on the brief).

Immigrant Worker Adjustment Of Status Subject Matter Jurisdiction

Where an immigrant worker from India challenged the revocation of an I-140 petition arguing that the petition was revoked without disclosure of the basis for revocation as required, district courts lack jurisdiction to consider whether the U.S. Citizenship and Immigration Services failed to comply with disclosure requirements, so the claim was properly dismissed for lack of subject matter jurisdiction, and the worker was also not statutorily eligible to adjust status.

Judgment is affirmed.

Rajasekaran v. Hazuda (MLW No. 68524/Case No. 14-3623 – 6 pages) (U.S. Court of Appeals, 8th Circuit, Benton, J.) Appealed from U.S. District Court, District of Nebraska, Kopf, J. (Scott Eric Bratton, Cleveland, Ohio, argued for appellant) (Sairah G Saeed, Washington, D.C., argued for appellee; Glenn Matthew Girdharry appeared on the brief).

Arbitration Clause Reinsurance Agreement Third-Party Beneficiary

Where a school bus driver, who accidentally killed a child, filed an action against the school district’s insurer for bad faith refusal to settle and breach of fiduciary duty, adding the reciprocal risk retention group as a defendant, and the bus driver filed a motion to stay arbitration, the trial court did not err in denying the risk retention group’s motion to compel arbitration because the arbitration clause in the agreement between the insurers was invalid against the bus driver as a third-party beneficiary since he was not within the scope of the agreement, and the agreement was not a reinsurance agreement.

Judgment is affirmed.

Leonberger v. Missouri United School Insurance Council (MLW No. 69207/Case No. ED103669 – 18 pages) (Missouri Court of Appeals, Eastern District, Sullivan, J.) Appealed from circuit court, St. Louis City, Dowd, J. (Mark G. Arnold, William C. O’Neill and Robert P. Berry for appellant) (Edward D. Robertson III and James P. Frickleton for respond-ent).

CGL Policy Bodily Injury Stacking

Where a husband and wife who sought coverage for an injury sustained when a tree fell on the man while the insured was removing it argued that the business owners’ package and commercial general liability policies were ambiguous, the policies’ anti-stacking provisions were unambiguous, and the district court properly found that the “other insurance” provisions apply when policies covering the same injury were issued by the insurer and another company, but not when two policies were issued by the insured, so the court did not err in finding that the policies prohibit stacking where both policies cover the same injury.

Judgment is affirmed.

Gohagan v. The Cincinnati Insurance Company (MLW No. 68642/Case No. 14-3454 – 9 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, Western District of Missouri, Hays, J. (Michael Gross, St Louis, argued for appellant) (David Patrick Bub, St Louis, argued for appellee; Kenneth Raymond Goleaner ap-peared on the brief).

CGL Policy Property Damage Defective Concrete Lot

Where judgment creditors, who obtained a judgment against a subcontractor that used defective concrete to build a parking lot, brought an equitable garnishment action against the subcontractor’s commercial general liability insurer, the judgment in favor of the insurer is affirmed because the plaintiffs were injured when the defective concrete was in-stalled, rather than when the damage became apparent, so there was no “property damage” within the policy period since coverage did not begin until several months after the construction.

Judgment is affirmed.

Kretsinger Real Estate Company v. Amerisure Insurance Company (MLW No. 69319/Case No. WD78791 – 10 pages) (Missouri Court of Appeals, Western District, Pfeiffer, J.) Appealed from circuit court, Clay County, Sutton, J. (Michael D. Hufft and Patrick E. White, Kansas City, Missouri, for appellants) (Martin J. Buckley and Elaine M. Moss, St. Louis, for respondents).

Life Insurance Benefits Lapsed Policy Statute Of Limitations

Where an insurer paid $250,000 in life insurance proceeds in 2013 to a woman for the 1986 death of her husband based on its review of dormant policies, and the woman sued for interest and the insurer then counterclaimed for restitution after a deeper investigation found that the policy had lapsed, summary judgment for the insurance company on the woman’s claim for interest is affirmed based on the expiration of the 10-year statute of limitations since claims accrue when the insured receives notice of the claim denial, and the limitation period was not tolled by the insurer’s payment of the policy, by alleged fraudulent concealment or by a written acknowledgment of a promise to pay in a company repre-sentative’s notes, and summary judgment for the woman on the insurer’s counterclaim is reversed and remanded because the company’s voluntary payment of the policy amount did not defeat its counterclaim for unjust enrichment.

Judgment is affirmed in part; reversed and remanded in part.

DeCoursey v. American General Life Insurance Company (MLW No. 69185/Case No. 15-1927 – 10 pages) (U.S. Court of Appeals, 8th Circuit, Arnold, J.) Appealed from U.S. District Court, Western District of Missouri, Fenner, J. (Antwaun Smith, St. Joseph, argued for appellant) (John Cowles Neiman Jr., Birmingham, Alabama, argued for appellee; Jeffrey M. Grantham, Janine McKinnon McAdory and Gardiner B. Davis appeared on the brief).

Mold Remediation Denial Of Coverage ‘Legally Obligated’

Where a property management company challenged the denial of coverage under general commercial liability policies for the costs of mold remediation at a resort condominium complex, the district court properly granted summary judgment to the insurer because the plaintiff did not show that it was legally obligated to make the repairs, and if the plaintiff acted to satisfy a contractual duty that also was not a liability imposed by law since it was a duty voluntarily assumed.

Judgment is affirmed.

Busch Properties, Inc. v. National Union Fire Insurance Company of Pittsburgh (MLW No. 68836/Case No. 14-3699 – 11 pages) (U.S. Court of Appeals, 8th Circuit, Smith, J.) Appealed from U.S. District Court, Eastern District of Missouri, Limbaugh Jr., J. (James F. Bennett, St. Louis, argued for appellant; Jennifer L. Aspinall and Caitlin E O’Connell appeared on the brief) (Agelo L. Reppas, Chicago, argued for appellee; John W. Patton Jr., Paul D. Motz and Paul Smolinsky appeared on the brief).

Underinsured Motorist Ambiguity

Where an insurer challenged the grant of summary judgment awarding underinsured motorist benefits to a passenger injured in an auto accident, the judgment is affirmed because the declarations page and limits of liability sections contained ambiguities, which resulted in one section promising coverage and the other taking it away.

Judgment is affirmed.

Nationwide Insurance Company of America v. Thomas (MLW No. 68689/Case No. ED102829 – 8 pages) (Missouri Court of Appeals, Eastern District, Clayton III, J.) Appealed from circuit court, St. Louis County, Walsh, J. (John F. Cooney and Kevin E. Myers for appellant) (Joan M. Lockwood, Kaitlin A. Bridges and Walter L. Floyd Jr. for respondent).

Underinsured Motorist Stacking ‘Other Insurance’

Where the parents of a child, who was injured when he was struck by a car driven by an underinsured motorist, sought to stack the underinsured motorist coverage for their three vehicles, the trial court erred in granting summary judgment to the insurer because the promise of excess coverage in the “other insurance” provision read in conjunction with the anti-stacking provision and disclaimer purporting to take away such coverage created an ambiguity.

Judgment is reversed.

Martin v. Auto Owners Insurance Company (MLW No. 68650/Case No. WD78545 – 10 pages) (Missouri Court of Appeals, Western District, Howard, J.) Appealed from circuit court, Pettis County, Koffman, J. (Christopher P. Sweeny for appellants)

Uninsured Motorist Prior Consistent Statements Motorcycle Accident

Where plaintiff, who sought uninsured motorist benefits after being injured in a motorcycle accident, argued that the trial court erred in excluding testimony from witnesses about his statements that he was run off the road by another vehicle, the testimony was proper evidence of prior consistent statements by the plaintiff offered to rehabilitate him after the insurer commented in opening statements that the phantom-driver theory was a recent fabrication or the result of improper influence, and the court also erred in admit-ting testimony from an officer in which he opined that the plaintiff’s inattentiveness caused the accident because such opinions are often given undue weight.

Judgment is reversed and remanded.

Richey v. State Farm Mutual Automobile Insurance Company (MLW No. 68745/Case No. ED101584 – 14 pages) (Missouri Court of Appeals, Eastern District, Clayton III, J.) Appealed from circuit court, St. Louis City, Stelzer, J. (S Lee Patton and Newton G. McCoy for appellant) (Scott C. Harper and Aaron I. Mandel for respondent).

Uninsured Motorist Stacking Public Policy

Where an insurer challenged a judgment ordering it to pay a couple $25,000 in uninsured motorist coverage following the death of the couple’s daughter in an auto-train colli-sion, the judgment is affirmed because the policy’s anti-stacking language was unenforceable as a violation of the state’s public policy established by Section 379.203.

Judgment is affirmed.

Nationwide Insurance Company of America v. Dugger (MLW No. 68723/Case No. SD33484 – 6 pages) (Missouri Court of Appeals, Southern District, Bates, J.) Appealed from circuit court, Butler County, Pritchett, J. (Kevin Edwards Myers and John Francis Cooney, St. Louis, for appellant) (Michael Anthony Moroni, Bloomfield, for respondent).

Right Of Publicity Copyright Act Preemption

Where appellants, who were former professional football players, opted out of a settlement in an action brought against the National Football League for alleged violations of their rights of publicity and rights under the Lanham Act, the summary judgment for the NFL on the appellants’ individual claims is affirmed because the appellants’ right-of-publicity claims challenged a “work within the subject matter of the Copyright Act,” and the films at issue were expressive, rather than commercial speech, so the district court properly found the Copyright Act preempted the claims, and summary judgment was also proper for the defendant on the claim of false endorsements under the Lanham Act be-cause the appellants failed to provide any evidence that the films included misleading or false statements regarding their current endorsement of the NFL.

Judgment is affirmed.

Dryer v. The National Football League (MLW No. 68845/Case No. 14-3482 – 9 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, Dis-trict of Minnesota, Magnuson, J. (Michael Vincent Ciresi, Minneapolis, argued for appellants; Eric John Magnuson, Jeffrey Sullivan Gleason, Emily W. Cowing, William Bornstein, Bob Stein and Thomas J. Ward appeared on the brief) (Paul D. Clement, Washington, D.C., argued for appellee; Aaron Daniel Van Oort, Daniel J. Connolly, Peter C. Magnuson, Bruce P. Keller and Michael Schaper appeared on the brief).

Adjudication Hearing Miranda Warnings Public Safety Exception

Where a juvenile made an incriminating statement about the location of a gun to officers while being questioned in their custody without receiving Miranda warnings, the warnings required by the relevant Missouri juvenile statute do not include a public-safety exception, so the trial court erred in overruling the juvenile’s motion to suppress the statement, and the adjudication is reversed.

Missouri Supreme Court

Concurring opinion by Ahuja, J.: “As Judge Newton’s majority opinion explains, the analysis in the dissenting opinion is fundamentally misguided, because this case involves the interpretation and application of a state statute, not the constitutional principles developed in Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny. And, as the majority opinion discusses, the Missouri Supreme Court has held in multiple cases that where government officers fail to comply with the procedures specified in the Juvenile Code for treatment of detained juveniles, statements obtained from those juveniles must be excluded from the government’s case in chief. “Our decision in this case must be guided by Missouri Supreme Court decisions interpreting and applying Missouri’s Juvenile Code, not by decisions of the Supreme Court of the United States interpreting federal constitutional provisions…. “I write separately merely to point out that the result would be the same, even if we applied the remedial approach adopted in the Miranda cases, as the dissent advocates.” No suppression Dissenting opinion by Pfeiffer, J.: “Via judicial construct, the majority opinion today engrafts the exclusionary rule remedy upon section 211.059—which otherwise identifies no such remedy in this Missouri juvenile Miranda statute—without heeding the caution of the United States Supreme Court that courts must ‘maintain the closest possible fit between the Self-Incrimination Clause and any judge-made rule designed to protect it.’ United States v. Patane, 542 U.S. 630, 643 (2004). In so doing, the majority opinion ignores decades of jurisprudence on the topic of the purpose of the exclusionary rule and goes where no court in this country has gone on the topic of applying the exclusionary rule as a remedy to a juvenile’s right against self-incrimination—whether by constitutional or statutory accord—when weighed against exigent circumstances emergently impacting the public’s right to safety. Accordingly, I respectfully dissent. “I disagree with the majority opinion’s suggestion that this case presents an issue of first impression relating to the scope of a juvenile’s right against self-incrimination in the State of Missouri; rather, I believe this case requires us to evaluate the issue of what remedy may or may not be available to Missouri juveniles in circumstances such as those with which we are presented today. More specifically, the issue presented by this case is whether an unwarned statement, made by a juvenile in custody, in response to a limited question asked for the purpose of preserving public safety in the face of exigent circumstances, warrants suppression under either Miranda v. Arizona, 384 U.S. 436 (1966), or section 211.059.1 I believe it does not.”

Judgment is reversed.

Juvenile Officer v. J.L.H. (MLW No. 68876/Case No. WD77850 – 48 pages) (Missouri Court of Appeals, Western District, Newton, J.) Appealed from circuit court, Jackson County, Torrence, J. (Craig Johnston, Columbia, for appellant) (Reginald Stockman, Kansas City, Missouri, for respondent).

Unfair Labor Practices Sick-Leave Policy Removal Of Posters

Where the National Labor Relations Board found that an employer violated the NLRA by firing employees who engaged in protected activity by protesting the company’s sick leave policy and by soliciting the removal of protected material from public places, the board did not err in finding that the employees’ poster campaign was not so disloyal as to lose pro-tection under the act, and the board’s decisions were supported by substantial evidence and the employer’s petition for review is denied.

Detrimental disloyalty

Opinion dissenting in part by Loken, J.: “The employees’ misleading contaminated-sandwich allegations were both devastating to MikLin’s business and unnecessary to advance their concerted activity. This is precisely the type of ‘detrimental disloyalty’ that falls outside the protection of § 7…Because the publicity campaign was unprotected activity, MikLin did not violate the Act by discharging employees responsible for the disloyal public campaign, and by urging employees on an employee-created Anti-Union Facebook page to re-move thedisparaging posters from public property near where they worked.”

Petition for review denied. Order enforced.

MikLin Enterprises, Inc. v. NLRB (MLW No. 68957/Case No. 14-3099 – 28 pages) (U.S. Court of Appeals, 8th Circuit, Kelly, J.) National Labor Relations Board (Michael Arthur Landrum, Edina, Minnesota, argued for petitioner; Mary G. Dobbins appeared on the brief) (Joel A. Heller, Washington, D.C., argued for respondent).

Warrant Fee Legal Remedy Pleadings

Where appellants, who brought claims against municipal defendants regarding the validity of warrant fees or failure-to-appeal fees, challenged the dismissal of their petition, the judgment is affirmed because the appellants did not allege sufficient facts to plead the lack of an adequate legal remedy, so they did not demonstrate a right to declaratory relief, and they also failed to state claims for unjust enrichment and money had and received because they did not allege to which city each of them paid an unauthorized fee and which of the cities was enriched by the fees.

Judgment is affirmed.

Gerke v. City of Kansas City (MLW No. 69294/Case No. WD78991 – 11 pages) (Missouri Court of Appeals, Western District, Hardwick, J.) Appealed from circuit court, Jackson County, Prokes, J. (Martin Meyers, John Klamann, Andrew Schermerhorn, Paul Anderson and William Carr, Kansas City, Missouri, for appellant) (Galen Beaufort, Sarah Baxter, Joseph Gall, Mark Katz, Lawrence Nordling, Joe Willerth, Steven Mauer, Jessica James, James Cook, Matthew Geary, Nancy Yenders, Paul Campo, Russell Nasteff and Christine Bushyhead for respondents).

Co-Employee Liability Duty Work Comp Exclusivity

Where the family of a truck driver who was killed in a single-vehicle accident sued the driver’s three supervisors for wrongful death, the duties that the plaintiffs claimed that the defendants owed to the driver were part of their employer’s nondelegable duty to provide a safe workplace, and the plaintiffs did not allege that the defendants owed a duty that was separate and distinct from that of the employer, so summary judgment for the defendants is affirmed.

Leeper

Concurring opinion by Fischer, J.: “I concur with the result reached in the principal opinion, but would overrule the court of appeals’ decision in Leeper v. Asmus, 440 S.W.3d 478 (Mo. App. 2014), beyond the principal opinion’s limited overruling of that case and would continue to apply the “something more” test consistent with its well-established meaning in this Court.

Common law test

Concurring opinion by Wilson, J.: “I concur in the result reached in the majority opinion, but am dubitante as to the discussion of the common-law test for co-employee liability for the reasons stated in my separate opinion in Peters v. Wady Industries Inc., No. SC94442 (Mo. banc 2016) (Wilson, J., concurring), also decided today.” Duty Dissenting opinion by Teitelman, J.; “This case is governed by common law principles and, as explained in Leeper, summary judgment was not proper because the existence of a duty depends on disputed facts that should not have been resolved by summary judgment. I would reverse the summary judgment and remand the case for further proceedings.”

Judgment is affirmed.

Parr v. Breeden (MLW No. 69273/Case No. SC94393 – 20 pages) (Supreme Court of Missouri, Breckenridge, J.; Stith, Draper and Russell, JJ., concur; Fischer, J., concurs in result in separate opinion filed; Wilson, J., concurs in result in separate opinion filed; Teitelman, J., dissents in separate opinion filed) Appealed from circuit court, New Madrid County, Copeland, J. (Shaun D. Hanschen and Rachel R. Harris, Sikeston, for appellants) (Michael S. Hamlin and Robyn Greifzu Fox, St. Louis, and Ted L. Perryman, John Schaberg and Josh S. Owings, St. Louis, for respondents).

Co-Employee Liability ‘Something More’ Test Work Comp Exclusivity

Where plaintiff and his wife brought a personal injury claim against the plaintiff’s co-employee supervisor after the plaintiff was injured in a 2008 work-related accident allegedly caused by the supervisor’s negligence, at the time of the accident, Missouri workers’ compensation law did not provide immunity to co-employees for common law negligence for injuries occurring before the 2012 amendment, but the trial court’s dismissal of the claim is affirmed because the plaintiffs failed to allege that the supervisor owed any duty of care separate from the employer’s duty to provide a safe workplace, and the court holds that to the extent the “something more” test required affirmative conduct for co-employee liability and purposeful, inherently dangerous conduct under State ex rel. Taylor v. Wallace, the test conflicts with common law co-employee liability.

Leeper v. Asmus

Concurring opinion by Fischer, J.: “I concur with the result reached in the principal opinion, but would overrule the court of appeals’ decision in Leeper v. Asmus, 440 S.W.3d 478 (Mo. App. 2014), and continue to apply the ‘something more’ test consistent with its well-established meaning in this Court…. “However, as recognized by the principal opinion, its holding relevant to the ‘something more’ test is limited to a finite number of cases as it applies only to cases arising prior to the 2012 amendment to § 287.120.1, an amendment that effectively codified the ‘something more’ test as previously applied by this Court. Because § 287.120.1 governs co-employee liability cases now and going forward, I decline to fully expound upon the differences I have with the principal opinion.” Well-established rule Concurring opinion by Wilson, J.: “I take the majority opinion as saying that – even though an injured worker does not need to show fault on the part of the employer to recover under the statutory workers’ compensation scheme – an injured worker’s sole remedy is workers’ compensation and may not recover from a co-employee in tort when the injury results from a breach of the employer’s non-delegable duties (among others) to provide a safe manner or place for work to be done. On that, I concur. “But, to the extent that the majority opinion suggests that a co-employee may be liable to an injured worker in tort regardless of whether the co-employee commits an affirmative negligent act or merely fails to act, I am concerned the majority goes too far. Resolution of this case does not require abandoning the well-established rule that a co-employee cannot be liable to an injured co-worker in tort unless the co-employee commits an affirmative negligent act, and I doubt that this rule will fail to resolve any of the limited universe of these cases arising before the 2012 amendment to section 287.120.1, RSMo.”

Factual question

Dissenting opinion by Teitelman, J.: “Before a court can determine the legal question of whether a co-employee owes a duty in negligence at common law, the court must assess the facts and circumstances of the employment at issue to determine the inherently factual question of whether the workplace injury was caused by the employer’s breach of a nondelega-ble duty or by the co-employee’s negligence in carrying out the details of the work directed by the employer. The principal opinion discards Leeper, but Leeper’s explanation of the common law is convincing and supported directly by the language of this Court’s opinions.”

Judgment is affirmed.

Peters v. Wady Industries, Inc. (MLW No. 69272/Case No. SC94442 – 35 pages) (Supreme Court of Missouri, Breckenridge, J.; Stith, Draper and Russell, JJ., concur; Fischer, J., concurs in result in separate opinion filed; Wilson, J., concurs in result in separate opinion filed; Teitelman, J., dissents in separate opinion filed) Appealed from circuit court, St. Charles County, Cunningham, J. (Eric D. Holland, Gerard B. Schneller, Steven L. Groves and Patrick R. Dowd, St. Louis, and J. Mark Kell, St. Peters, for appellants) (Teresa M. Young, John P. Rahoy and Kelly M. Brunie, St. Louis, for respondent).

Dog Attack Condominium Association Defendant Duty

Where a condominium resident sued the condominium association after she was attacked by a pit bull owned by another resident, the association did not have a duty to create specific rules and regulations, but it did have the power under its declaration to create rules, so the association had a duty to enforce the rules it created, and the trial court erred in granting summary judgment because whether the association acted reasonably in enforcing the rules was a question of fact.

Judgment is affirmed in part; reversed and remanded in part.

Taticek v. Homefield Gardens Condominium (MLW No. 69322/Case No. ED103852 – 12 pages) (Missouri Court of Appeals, Eastern District, Hess, J.) Appealed from circuit court, St. Charles County, Zerr, J. (John G. Simon, John M. Simon and Kevin M. Carnie Jr. for appellant) (Scott C. Harper, Aaron I. Mandel and John A. Mazzei for respondent).

Gym Class Injury Dangerous Condition Coverdell Immunity

Where a student who injured his wrist in gym class sued his teacher and the school district, the gym floor and walls were not defective or intrinsically dangerous and were not changed to be made dangerous, so the student did not prove a dangerous-condition exception to sovereign immunity, and summary judgment for the district is affirmed, but summary judgment for the teacher is reversed because the facts in the summary judgment record were deficient to support the Coverdell immunity claim.

Judgment is affirmed in part; reversed in part; remanded.

Lackey v. Iberia R-V School District (MLW No. 68806/Case No. SD33918 – 8 pages) (Missouri Court of Appeals, Southern District, Scott, J.) Appealed from circuit court, Camden County, Hayden, J. (Matthew Joseph Devoti, St. Louis, for appellant) (Mariam A. Decker, Columbia, and Bruce Farmer, Columbia, for respondent).

Interlocutory Default Meritorious Defense

Where a plaintiff who was injured when she tripped and fell on an uneven sidewalk was granted an interlocutory judgment of default against the defendant, the fact that a hazard may be visible was insufficient to meet the defendant’s burden to show a meritorious defense, and the defendant did not explain its allegation that the plaintiff failed to keep a careful lookout, so the trial court did not err in denying the motion to set aside because the court properly found that the defendant did not prove that it had a meritorious defense.

Judgment is affirmed.

Kansas City Live LLC v. Bukovac (MLW No. 69117/Case No. WD78882 – 13 pages) (Missouri Court of Appeals, Western District, Witt, J.) Appealed from circuit court, Jackson County, Byrn, J. (Michelle R. Stewart and Jennifer R. Johnson, Overland Park, Kansas, for appellant) (John E. Turner and Christopher P. Sweeny, Kansas City, Missouri, for respondent).

Legal Malpractice Contract Drafting Error Post-Judgment Interest

(1)Where a client brought a legal malpractice action against a law firm for a contract-drafting error, and a jury found the firm liable for the difference between the amount that the client would have received if the contract were proper and the amount it actually received, the law firm did not show that the settlement of the underlying claim created speculation in the malpractice action as well as an intervening cause of damages, and the client presented a submissible case on the proximate causation issue of its transactional malpractice claim, and the law firm also failed to show that the trial court erred in overruling its objections to jury instructions or in refusing to give an affirmative converse instruction based on whether the client would have prevailed in a reformation action.

(2)Where a law firm in a legal malpractice case challenged the trial court’s action in amending the judgment to include an award of post-judgment interest, no request was made in an authorized post-trial motion, so the trial court’s amended judgment awarding post-judgment interest was untimely and void.

Judgment is affirmed in part; reversed in part.

SKMDV Holdings, Inc. v. Green Jacobson, P.C. (MLW No. 69041/Case No. ED102493 – 38 pages) (Missouri Court of Appeals, Eastern District, Richter, J.) Appealed from circuit court, St. Louis County, Prebil, J. (Joseph F. Yeckel and Michael Gross for appellant) (A. Elizabeth Blackwell and Jan Paul Miller for respondent).

Lung Disease Popcorn Flavoring Expert Testimony

Where a man, who developed the lung disease bronchiolitis obliterans which he claimed was the result of years of popcorn consumption, sued popcorn and flavoring manufacturers, the plaintiff did not show that the district court’s striking of expert testimony was prejudicial since it was not apparent that the jury could not follow a curative instruction, and the plaintiffs also failed to show that the court allowed improper testimony or that the verdict was against the weight of the evidence, so the judgment for the defendants is affirmed on the claim of breach of implied warranty.

Judgment is affirmed.

Stults v. International Flavors & Fragrances, Inc. (MLW No. 68862/Case No. 14-3658 – 14 pages) (U.S. Court of Appeals, 8th Circuit, Riley, J.) Appealed from U.S. District Court, Northern District of Iowa, Bennett, J. (Kenneth Blair McClain, Independence, argued for appellant; Jonathan M Soper appeared on the brief) (Don R. Sampen, Chicago, argued for appellee; Edward Kay, Jeff William Wright, Joseph J. Ferrini, Michael Alan Holcomb, Earl W. Gunn and Thomas H. Ryerson appeared on the brief).

Medical Negligence Informed Consent Withdrawal Instruction

Where a plaintiff, who suffered a perforation during an endoscopy, brought a medical negligence action alleging that a procedure was medically unnecessary, the plaintiff’s claim that the trial court abused its discretion in refusing to submit a withdrawal instruction regarding evidence of informed consent is denied because even though evidence of informed consent may be irrelevant and prejudicial when the plaintiff does not present a claim for failure to provide informed consent and where her claim was confined to a healthcare provider’s negligent performance, in this case the challenge was not to the admissibility of the evidence, but to the refusal to withdraw already-admitted evidence of informed consent, to which both parties had already testified without objection, and the judgment for the defendants is affirmed over the plaintiff’s remaining evidentiary, jury and closing argument challenges.

Judgment is affirmed.

Wilson v. Patel (MLW No. 69320/Case No. WD78538 – 15 pages) (Missouri Court of Appeals, Western District, Pfeiffer, J.) Appealed from circuit court, Buchanan County, Judah, J. (H. William (Bill) McIntosh, Steven L. Hobson and Meredith R. Peace, Kansas City, Missouri, for appellant) (BK Christopher and Justin D. Fowler, Kansas City, Missouri, for respondents).

Medical Negligence Medical Records Hearsay

Where plaintiff brought personal injury claims against a hospital after complications following a cardiac procedure led to a partial leg amputation, the judgment for the defendant is affirmed because the trial court did not err in admitting a medical record from another health care provider that documented a sealing procedure since the defendant presented credible evidence that the doctor had access to and reviewed the exhibit prior to using the same procedure in the surgery at issue, and expert testimony also confirmed that this was common practice, and the admission of an addendum to the report on the surgery at issue was not erroneous because the notes made were not self serving but were necessary for subsequent healthcare providers and independent evidence corroborated the reliability of the statements in the addendum.

Judgment is affirmed.

Carlson v. St. Louis University (MLW No. 69210/Case No. ED102760 – 9 pages) (Missouri Court of Appeals, Eastern District, Sullivan, J.) Appealed from circuit court, St. Louis City, Neill, J. (Leonard P. Cervantes and Jennifer Suttmoeller for appellant) (Robert S. Rosenthal, Christine A. Vaporean, and Teresa M. Young for respondent).

Negligent Entrustment Gun Seller Defendant Preemption

Where a plaintiff brought claims including negligence and negligent entrustment against a pawn shop that despite her pleas sold a gun to her mentally ill daughter who then shot and killed her father, the trial court properly found that the Protection of Lawful Commerce in Arms Act preempted the state law negligence action against the pawn shop, and the plaintiff failed to show that the act was unconstitutional since it did not violate the Tenth Amendment or federal due process rights, but the act did not preempt the plaintiff’s action for negligent entrustment, which the plaintiff’s claim fit within and which is a claim that must be asserted under state law, so the judgment is reversed to the extent it precluded the plaintiff from proceeding on the negligent entrustment claim.

Judgment is affirmed in part; reversed in part.

Delana v. CED Sales, Inc. (MLW No. 69009/Case No. SC95013 – 17 pages) (Supreme Court of Missouri, Teitelman, J.; all concur) Appealed from circuit court, Lafayette County, Rolf, J. (Jonathan E. Lowy and Alla Lefkowitz, Washington, D.C., L. Annette Griggs and David L. McCollum, North Kansas City, and Jane Francis, Kansas City, Missouri, for appel-lant) (Derek H. Mackay and David R. Buchanan, Kansas City, Missouri; Patrick A. Bousquet, St. Louis, and Kevin L. Jamison, Gladstone, for respondents).

Negligent Supervision Official Immunity Student Injury

Where a mother brought claims of negligence and negligent supervision against a gym teacher after her child was injured in a physical education class, the teacher was a public offi-cial and his acts in instructing the children were discretionary, so the teacher was entitled to official immunity, and the trial court must dismiss the claims.

Permanent writ issued.

McCoy v. Martinez (MLW No. 68687/Case No. ED103719 – 10 pages) (Missouri Court of Appeals, Eastern District, Richter, J.) Writ of Prohibition (Matthew Hughes Noce and Gerard Thomas Noce for appellant) (Gary Burger for respondent).

Personal Injury Exculpatory Clause Fitness Club Defendant

Where a woman who was injured in a boot camp exercise class brought claims of recklessness and negligence against the fitness club, summary judgment for the defendant is affirmed because the exculpatory clause in the member usage agreement applied and was unambiguous, precluding a negligence claim, and the recklessness claim also failed because the defendant did not have a duty to warn the plaintiff of the recoil capability of resistance exercise bands since the plaintiff had actual knowledge of this information and the defend-ant and trainer were not reckless in directing the plaintiff to perform the exercise.

Judgment is affirmed.

McNearney v. LTF Club Operations Company, Inc. (MLW No. 68658/Case No. ED102905 – 19 pages) (Missouri Court of Appeals, Eastern District, Odenwald, J.) Appealed from circuit court, St. Louis County, Warner Jr., J. (Alan J. Agathen for appellant) (Rodney M. Sharp and Dennis S. Harms for respondent).

Products Liability Jury Instruction Design Defect

Where a truck driver who was injured when he fell while tightening a part on his truck sued the manufacturer and received a partial verdict, the judgment is reversed and remand-ed for a new trial because the trial court erred in giving the verdict director for negligent design defect and failure to warn since MAI 25.09 applied and was mandatory, and the in-struction as given was confusing and created a roving commission, and the directed verdict in favor of the maintenance company is also reversed because the plaintiff submitted evi-dence for a finding of faulty repair.

Judgment is reversed and remanded.

Johnson v. Auto Handling Corporation (MLW No. 69043/Case No. ED101018 – 16 pages) (Missouri Court of Appeals, Eastern District, Gaertner Jr., J.) Appealed from circuit court, St. Louis County, Prebil, J. (William Ray Price Jr., Thomas B. Weaver and Jeffery T. McPherson for appellant) (Roy C. Dripps, Charles W. Armbruster III and Michael T. Blotevogel for respondent) (Paul L. Wickens and William F. Logan for cross respondent).

Slip And Fall Causation

Where a plaintiff, who was injured when she slipped and fell in the produce aisle of a retail store, produced evidence that created a genuine issue of causation by showing that she had just passed the onion bin, her husband saw her fall and she told her family that she felt something mushy under her feet, summary judgment for the defendant based upon the material fact of causation being uncontroverted was not appropriate.

Judgment is reversed and remanded.

Custer v. Wal-Mart Stores East (MLW No. 69307/Case No. SD34132 – 11 pages) (Missouri Court of Appeals, Southern District, Lynch, J.) Appealed from circuit court, Greene County, Brown, J. (Matthew Louis Placzek, Springfield, and Nicholas Austin Fax, Springfield, for appellant) (Bruce E. Hunt and Kristie Suzanne Crawford, Springfield, for respond-ent).

Wrongful Death Delayed Diagnosis Fatal Disease

Where the family of a man who died of an incurable brain tumor after his doctor failed to diagnose the condition until after his second test results, the doctor’s negligence did not cause the man’s death, so the family did not have a wrongful death action under Section 537.080.1, but the negligence deprived the man of six months’ of life, so his personal repre-sentative could bring a medical malpractice action under Section 537.020 after his death.

Premature death

Dissenting opinion by Teitelman, J.: “I respectfully dissent. Without analyzing the language of section 537.080, the principal opinion concludes summarily that Appellants have no viable wrongful death action under section 537.080.1 because Dr. Danrad’s alleged negligence did not cause Mr. Mickels’ death. The principal opinion reasons that Dr. Danrad’s neg-ligence did not cause Mr. Mickels’ death, it simply deprived him of the opportunity to delay his death for up to six months. Left unsaid is the fact that what results from the loss of an opportunity to delay death is death. I would reverse the judgment… “It is also true, however, that ‘the death of a person results from’ medical negligence when a terminally ill person would not have died prematurely but for the alleged negligence. In both cases, the death ‘results from’ negligence in that the death would not have occurred when it did absent the alleged medical negligence.”

Vacated; remanded.

Mickels v. Danrad (MLW No. 69071/Case No. SC94844 – 11 pages) (Supreme Court of Missouri, Wilson, J.; Breckenridge, C.J., Fischer and Russell, JJ., concur; Teitelman, J., dis-sents in separate opinion filed; Stith and Draper, JJ., concur in opinion of Teitelman, J.) Appealed from circuit court, Marion County, Shepherd, J. (Thomas K. Neill and Stephen R. Woodley, St. Louis, for appellants) (John B. Morthland, Amy Lee Ohnemus and Casey J. Welsh, Hannibal, for respondent).

Wrongful Death Duty Bridge Accident

(1)Where the family of a man who was killed when a log skidder fell from a truck onto a car while crossing a bridge brought a wrongful death action arguing that the defendants were negligent for failing to close the bridge to oncoming traffic, the record was sufficient to prove that defendant had a duty to take precautions against the risks involved in trans-porting a wide load over a narrow bridge since the practice was to call law enforcement to block the bridge or to block it themselves, and evidence of the defendant’s failure to stop traffic and his misleading signal was sufficient to find that the defendant failed to use ordinary care, and sufficient evidence supported the jury’s verdict finding that the defendant acted negligently and caused the man’s death.

(2)Where the defendants in a wrongful death action argued that the district court erred in denying their motion for a new trial based upon an allegedly improper comment during closing arguments, the defendants made statements that opened the door for the allegedly prejudicial statement, and the statement was not unwarranted given the context, and the court also instructed the jury to disregard it, so there was no abuse of discretion in the denial of the new trial motion.

Judgment is affirmed.

Brown v. Davis (MLW No. 68833/Case No. 15-1009 – 12 pages) (U.S. Court of Appeals, 8th Circuit, Murphy, J.) Appealed from U.S. District Court, Eastern District of Missouri, Fleissig, J. (Kenneth L. Halvachs, Belleville, Illinois, for appellant) (Richard Witzel, Michael A. Fisher, John B. Greenberg and David A Dimmitt, St Louis, for appellee).

Wrongful Death Fall From Train Proximate Cause

Where a plaintiff, whose elderly father disappeared from a moving train and was later found dead by the tracks, brought a wrongful death action against Amtrak, claiming that the train’s safety features and crew training were inadequate, summary judgment for Amtrak is affirmed because the plaintiff did not establish proximate cause since the failure to install door status indicators would not have prevented the man’s fall, and the plaintiff failed to present a genuine issue of fact showing that Amtrak caused the death by failing to adequately instruct the crew on hazards for confused passengers.

Close call

Dissenting opinion by Kelly, J.: “This case asks us to make a very close call. I agree with the court that door status indicators or further instruction of the Amtrak crew would not have prevented Andrew Haukereid’s death. Therefore, Haukereid’s case rests on proving a breach of Amtrak’s duty to better secure the exit doors, and a showing that the lack of addi-tional door safety features proximately caused Andrew to exit the train…. “If the jury could find that Andrew was in fact impaired and that his unwitting exit through the emergency side door was the most likely of circumstances, they could also find that Amtrak proximately caused his fall…While I believe this is a close case, on balance, I would conclude that Haukereid has created a dispute on a genuine issue of material fact con-cerning causation. I respectfully dissent.”

Judgment is affirmed.

Haukereid v. National Railroad Passenger Corporation (MLW No. 68880/Case No. 14-3752 – 14 pages) (U.S. Court of Appeals, 8th Circuit, Murphy, J.) Appealed from U.S. Dis-trict Court, Eastern District of Arkansas, Marshall, J. (Carter Stein, Little Rock, Arkansas, argued for appellant) (Scott H. Tucker, Little Rock, Arkansas, argued for appellee; Martin A. Kasten, Kristopher B. Knox and Mary K. McCarroll appeared on the brief).

Wrongful Death Noneconomic Damages Pain And Suffering

(1)Where a jury awarded $459,429 for past economic damages to a plaintiff in a wrongful death action but did not award noneconomic damages for pain and suffering, reversal is not required in such cases unless the verdict is determined to be inadequate, and damages for pain and suffering are not mandatory under Section 537.090, so the trial court did not abuse its discretion in denying the plaintiff’s motion for a new trial.

(2)Where the health care provider defendant in a wrongful death action argued that the trial court erred in denying its motion for judgment notwithstanding the verdict, the de-fendant was precluded from obtaining a JNOV because it failed to raise in its motion for directed verdict that the plaintiff failed to present substantial evidence to establish damages, and the defendant’s second point was multifarious and preserved nothing for appellate review.

Judgment is affirmed.

Wolf v. Midwest Nephrology Consultants (MLW No. 69058/Case No. WD78606 – 10 pages) (Missouri Court of Appeals, Western District, Welsh, J.) Appealed from circuit court, Jackson County, Round, J. (Thomas Porto, Kansas City, Missouri, for respondent) (Marc Erickson, Jack Hyde and Adam Davis, Kansas City, Missouri, for appellants).

Wrongful Death Non-Economic Damages Statutory Cap

(1)Where the family of a woman who died during heart surgery challenged the application to their wrongful death case of the statutory cap on non-economic damages in light of recent case law, the cap does not violate the right to a jury trial, the separation of powers or equal protection, and the Missouri Supreme Court’s decision in Watts v. Lester E. Cox Medical Center did not impact the case since Watts involved a personal injury claim and applies only to causes of action in which the right to a jury trial attaches by common law.

(2)Where the family of a woman who died during heart surgery argued that the trial court erred in granting a directed verdict on the issue of aggravating circumstances, the judgment is affirmed because the plaintiffs did not show that the healthcare provider defendants acted with complete indifference for the woman’s safety.

(3)Where the defendants in a wrongful death case argued that the trial court abused its discretion in allowing the plaintiff to question their expert witness about the availability of St. Louis doctors to testify as experts against other doctors, the questioning was relevant as to bias, and a portion of a defendant’s videotaped deposition was properly admitted as relevant on the issue of credibility, and the plaintiffs provided substantial evidence for the jury to estimate future economic damages, so the judgment is affirmed over the defendant’s challenge to a jury instruction not to consider insurance coverage.

Prior holdings control

Separate opinion by Fischer, J.; and Wilson, J.; “We concur with the result in the principal opinion but write separately to address Plaintiffs’ argument that Sanders v. Ahmed, 364 S.W.3d 195 (Mo. banc 2012), does not control in this case. For the reasons set forth below, Sanders controls, and we are constrained to vote accordingly…. “The holdings of Diehl and Scott that the constitutional jury trial right applies in all cases whether the claim arises under the common law or by statute – and the line drawn in Overbey, Sanders, Watts, and Lewellyn that the constitutional jury trial right prohibits the enforcement of statutory caps on amounts recoverable on a common law cause of action but is not offended by such caps on amounts recoverable under a statutory cause of action – are authoritative constructions of one of our most important constitutional rights. They have been applied faithfully by this Court and have engendered substantial reliance by the General Assembly and other stakeholders. Accordingly, these cases cannot be ignored or overruled without a substantial showing that they were incorrectly decided or that they reached a proper result on improper grounds. No such showing has been made here.”

Insurance ‘crisis’

Dissenting opinion by Teitelman, J.; “I dissent from the principal opinion. In Adams By and Through Adams v. Children’s Mercy Hosp., 832 S.W.2d 898 (Mo. banc 1992), this Court summarized the arguments supporting and refuting whether the legislature’s imposition of the damages cap in section 538.210, RSMo 1986, was rationally related to its intend-ed purpose of alleviating the perceived malpractice insurance ‘crisis’ that occurred in Missouri in the early 1980s…. “A clear, cogent argument exists that this medical malpractice ‘crisis’ was manufactured and continues to be exacerbated today by a special interest group that persistently labels, for shock value, and characterizes some jurisdictions as ‘judicial hellholes.’ These characterizations and the underlying ‘support’ for these characterizations have been criticized roundly. It should be noted our legislature took subsequent remedial measures in the 2015 session to amend section 538.210 to increase the noneconomic damages caps for personal injury and wrongful death, including an adjustment to account for inflation. 2015 Mo. Legis. Serv. S.B. 239 (West). Perhaps these subsequent remedial measures serve as recognition that the perceived ‘crisis’ never existed, or at least has abated. “The foregoing argument could have been asserted to challenge section 538.210 under a rational basis test, but it was not raised here. I respectfully dissent.”

Judgment is affirmed.

Dodson v. Ferrara (MLW No. 69072/Case No. SC95151 – 56 pages) (Supreme Court of Missouri, Russell, J.; Breckenridge, C.J., and Stith, J., concur; Fischer and Wilson, JJ., concur in result in separate opinion filed; Draper, J., dissents in separate opinion filed; Teitelman, J., concurs in opinion of Draper, J.; Teitelman, J., dissents in separate opinion filed) Ap-pealed from circuit court, St. Louis County, Sherry, J. (Paul N. Venker and Lisa A. Larkin, St. Louis, for appellants) (Maurice B. Graham, Patrick J. Hagerty, Joan M. Lockwood and Kaitlin A. Bridges, St. Louis, and John G. Simon, for respondent).

Judicial Compensation Retirement Benefits

Where retired Missouri judges sought additional salary and one sought increased retirement benefits based on litigation involving federal judicial pay, the judges did not state a claim for additional salary, and the dismissal of the claims is affirmed because the state applied the relevant federal report properly by adjusting the state judges’ pay based on federal salaries on the date specified, and the retirement benefit calculations were also appropriate since such benefits are linked to salary and the judge was not due additional pay.

Judgment is affirmed.

McGraw v. State (MLW No. 69219/Case No. SC95271 – 8 pages) (Supreme Court of Missouri, per curiam) Appealed from circuit court, Cole County, Conley, J. (Matthew L. Dameron, Michael A. Williams and Eric L. Dirks, Kansas City, Missouri, for appellants) (Robert L. Presson, Jefferson City, and Allen D. Allred and Jeffrey R. Fink for respondents).

Adverse Possession Exclusivity Easement

Where a landowner challenged a judgment against her on her claim for adverse possession, the landowner failed to prove that her predecessors had acquired the land by adverse possession so that she could tack on to their claims, and the landowner failed to show exclusivity, and the trial court also properly found that there was no easement by prescription since her predecessors’ use of the land was permissive.

Judgment is affirmed.

Daniels-Kerr v. Crosby (MLW No. 68967/Case No. WD78484 – 10 pages) (Missouri Court of Appeals, Western District, Gabbert, J) Appealed from circuit court, Cass County, Wagner, J. (Kenneth C. Hensley, Raymore, for appellant) (Daniel Joseph Haus, Kansas City, Missouri, for respondent).

Common Ground Sale Validity Association’s Authority

Where subdivision homeowners, who argued that their homeowners association did not have authority to sell common land to the Missouri Department of Transportation, filed claims against the department and the association, summary judgment for the department is affirmed because the association had the authority to sell the property under the record-ed indenture and restrictions and the original general warranty deed, and the homeowners lacked power to sell their interest in the property without the sale of their lots, and the homeowners also accepted the benefits of the sale and were estopped from contesting its validity, so the department did not violate the homeowners’ rights in purchasing the property, but the trial court’s summary judgment against the association and community managers association is reversed because the issues were not disposed of by determining that the association had the power to sell the property.

Judgment is affirmed in part; reversed in part.

Poger v. Department of Transportation (MLW No. 69266/Case No. ED103293 – 22 pages) (Missouri Court of Appeals, Eastern District, Gaertner Jr., J.) Appealed from circuit court, St. Louis County, Prebil, J. (Gregory G. Fenlon for appellant) (William L. Sauerwein, John Hein, Grant J. Mabie and Jon R. Sanner for respondents).

Condemnation Highway Easement Expert Testimony

Where the Missouri Highways and Transportation Commission challenged an award of $2.9 million to a property owner in a condemnation case involving a partial taking, the trial court did not abuse its discretion in allowing the property owner’s testimony as an expert regarding comparable sales because he had specialized knowledge from buying and leasing property in the area for decades and the admission of testimony regarding a similar property years earlier was also not an abuse of discretion because the properties shared unique qualities.

Judgment is affirmed.

State ex rel. Missouri Highways and Transportation Commission v. Boer (MLW No. 68721/Case No. SD33804 – 12 pages) (Missouri Court of Appeals, Southern District, Francis Jr., J.) Appealed from circuit court, Laclede County, Hayden, J. (Gary Joe Holtmeyer Jr., Jefferson City, and John William Koenig Jr., Sikeston, for appellant) (John Lance Roark and Sarah Elizabeth Giboney, Columbia, for respondent).

Foreclosure Sale Ownership Interest Life Estate

Where trustees who claimed a life estate in property and a bank which purchased the property at a foreclosure sale challenged a summary judgment declaring their respective ownership interests in the property, the trial court erred in holding that the trustees had a life estate personally as husband and wife, and the trustees did not show that the foreclosure sale was void, so the judgment is reversed and remanded.

Judgment is reversed and remanded.

Denny v. Regions Bank (MLW No. 68709/Case No. SD33782 – 6 pages) (Missouri Court of Appeals, Southern District, Scott, J.) Appealed from circuit court, Greene County, Fitz-simmons, J. (Paul Forrester Sherman, Springfield, for appellant) (Mark C. Fels, Springfield, and Michael James Gilgrist, Maryland Heights, for respondent).

Inverse Condemnation Negligence Municipal Liability

Where a sewer district sought to collect from a city for damage to its sewer lines allegedly caused by the city, the district could not bring an adverse condemnation claim against the city because as a public entity, the district does not have a constitutional right to just compensation for the taking of its property, and the district’s trespass and negligence claims also failed because the city was protected by sovereign immunity, which was not waived.

Historical context

Concurring opinion by Fischer,J.: “I concur in the result of the principal opinion but write separately because I do not agree with the principal opinion’s suggestion it is not appropriate to consider the intent of the drafters of our Constitution, or the historical context in which a provision was adopted, for purposes of interpretation. In my view, the fact that Metropolitan St. Louis Sewer District (MSD) is a political subdivision—not a citizen—ends the debate of whether it is entitled to compensation for a taking under article I, sec-tion 26 of the Missouri Constitution. In this case, both the plain language of article I, section 26 and the constitutional debates support the result reached by the principal opinion.”

Judgment is affirmed.

The Metropolitan St. Louis Sewer District v. City of Bellefontaine (MLW No. 68671/Case No. SC94831 – 23 pages) (Supreme Court of Missouri, Stith, J.; Breckenridge, C.J., Draper, Wilson Teitelman and Russell, JJ., concur; Fischer, J., concurs in separate opinion filed) Appealed from circuit court, St. Louis County, Seigel, J. (Christopher R. LaRose and Bryan E. Francis, St. Louis, for appellant) (Kevin M. O’Keefe and Robert E. Jones, St. Louis, for respondent).

Quiet Title Deeds Of Trust Expert Testimony

Where appellant challenged a finding that her ownership of property was subject to two deeds of trust, the judgment is affirmed because the trial court did not err in admitting and relying on the testimony of an expert regarding real estate escrow closings, and the appellant did not show that the court erroneously applied the law of real estate closings to the facts.

Judgment is affirmed.

La Near v. Citimortgage, Inc. (MLW No. 68636/Case No. ED102468 – 8 pages) (Missouri Court of Appeals, Eastern District, Gaertner Jr., J.) Appealed from circuit court, St. Charles County, Zerr, J. (Katrina G. Bakewell and Peter H. Love for respondents) (Debry La Near, pro se).

Defamation Insurance Evidence Unjust Enrichment

(1)Where the plaintiff in a defamation case repeatedly sought to introduce evidence of an insurance policy held by the defendant’s publishing company, the jury did not receive a specific curative instruction, and the jury awarded $500,000 in damages in a close case where the risk of prejudice from the insurance evidence was high, the district court abused its discretion in denying a new trial on the defamation claim.

(2)Where a plaintiff who brought claims of defamation, misappropriation and unjust enrichment received a $1.35 million award for unjust enrichment, money damages was an adequate remedy at law for a public figure, and the unjust enrichment claim was not allowed by Minnesota law.

Harmless error

Opinion concurring in part, dissenting in part by Smith, J.: “I concur in the majority’s reversal of the unjust-enrichment judgment. See supra Part II.B. However, I disagree with majority’s decision to vacate and remand the defamation judgment for a new trial because of references to insurance in trial testimony and closing argument…. “Based on the record, I first conclude that the district court did not err in denying Kyle’s motion for mistrial. Kyle’s motion for mistrial after the retirement of the jury was untimely… “After reviewing the record, I conclude that any error in allowing Ventura’s counsel to inquire about insurance was, at most, harmless and non-prejudicial. First, Ventura’s counsel asked a total of four questions about insurance to two witnesses who disclaimed any knowledge about the subject during the course of an eleven-day trial. Second, the inquiry about insurance came after Taya first testified that she would be responsible for paying the judgment—at least as to the misappropriation and unjust-enrichment claims—were Ventura to prevail. Thus, the jury was on notice that Taya would be responsible for paying at least part of any judgment rendered against Kyle. Third, the issue of insurance did not permeate the entire trial…Fourth, the $500,000 in damages on the defamation claim is not an excessive verdict.”

Judgment is reversed; vacated and remanded.

Ventura v. Kyle (MLW No. 69292/Case No. 14-3876 – 26 pages) (U.S. Court of Appeals, 8th Circuit, Riley, J.) Appealed from U.S. District Court, District of Minnesota, Kyle, J. (Lee Levine, Washington, D.C., argued for appellant; John Philip Borger, Charles F. Webber and Mary A. Walker appeared on the brief) (David Bradley Olsen, Minneapolis, argued for appellee; Court J. Anderson, John Norbert Bisanz Jr. and Benjamin J. Hamborg appeared on the brief).

Childhood Sex Abuse Statute Of Limitations Boy Scouts Defendant

(1)Where a plaintiff who brought claims of statutory childhood sexual abuse, battery and negligence against Boy Scout organizations based on allegations that he was abused by a scoutmaster, the Boy Scouts were entitled to summary judgment on the battery and negligence counts because the statute of limitations for both had expired, and the statutes of limitations were not tolled since the plaintiff did not allege any conduct by the defendant that delayed his commencement of the action, and the statute of limitations for the child-hood sexual abuse statute did not apply to the battery and negligence claims because it only applies to claims based on enumerated acts and brought pursuant to the child sex abuse statute.

(2)Where a plaintiff who claimed he was sexually abused as a child by a Boy Scout leader brought claims against Boy Scout organizations, Section 537.04 does not provide a cause of action against non-perpetrators, so the preliminary writ is made permanent.

Preliminary writ made permanent.

State ex rel. Heart of America Council v. McKenzie (MLW No. 68914/Case No. SC94942 – 13 pages) (Supreme Court of Missouri, Stith, J.; all concur) Original proceeding in prohibition (Gerard T. Noce and Justin L. Assouad, St. Louis, represented the Boy Scouts) (Randall L. Rhodes, Leawood, Kansas, represented Doe).

Livestock Trespass Enclosure Act Personal Injury Damages

(1)Where a plaintiff was awarded more than $1 million after he was injured trying to drive his neighbor’s bull back onto the neighboring farm, the defendant neighbor did not show that the plaintiff sued under the wrong statute, and the trespass law required reparation for the “true value of damages sustained,” so it supported recovery for personal injury.

(2)Where a plaintiff who was injured by a neighbor’s trespassing bull challenged the application of comparative fault to his award, resulting in a 35 percent reduction, compara-tive fault would be applied under the Uniform Comparative Fault Act, and Missouri courts are to apply comparative fault according to the act, so the reduced award is affirmed.

Judgment is affirmed.

Coble v. Taylor (MLW No. 68740/Case No. SD33713 – 9 pages) (Missouri Court of Appeals, Southern District, Scott, J.) Appealed from circuit court, Greene County, Powell, J. (Craig Richard Oliver, Springfield, and Mark Edward Brinkmann, Union, for respondent) (Karl W. Blanchard, Joplin; Kelly Marie Brunie, St. Louis; Richard Tyler Strodtman, Jop-lin; and T. Michael Ward, St. Louis, for appellant).

Denial Of Benefits Misconduct Intentional Hitting

Where an employee was terminated for intentionally striking another employee, the Labor and Industrial Relations Commission did not err in awarding unemployment benefits because the conduct was a justification for termination, but it did not rise to the level of misconduct to support the disqualification of benefits because the employer did not have an express rule addressing physical contact between employees.

First impression

Dissenting opinion by Page, J.: “As the principal opinion observes, there exists no Missouri case directly on point to answer the question whether Stahl’s ‘deliberately strik-ing a co-employee’ constituted ‘misconduct; under Section 288.030.1(23)(a). In the absence of precedent this court reverts to statutory interpretation. Pursuant to the most recent amendment to the governing statute, I believe our analysis of misconduct is simply whether Stahl’s conduct constituted “a knowing violation of the standards which the employer expects” and that Stahl’s ‘deliberately striking a co-employee’ constitutes misconduct, as a matter of law, under Section 288.030.1(23)(a)…. “Every kindergartener is taught that deliberately striking another individual is inappropriate and subjects one to a wide array of consequences. Furthermore, Stahl’s con-duct was of such a nature as to subject Stahl to criminal and/or civil penalties…Failure to understand the ramifications of such conduct is not a defense either in criminal or tort law and should not be tolerated in the workplace. Specifically, Stahl should not be permitted to cloak her ignorance of universally and fairly understood standards of be-havior which every employer has a right to expect of its employees under the guise of naiveté.”

Judgment is affirmed.

Stahl v. Hank’s Cheesecakes, LLC (MLW No. 69157/Case No. ED103466 – 17 pages) (Missouri Court of Appeals, Eastern District, Odenwald, J.) Appealed from the Labor and Industrial Relations Commission (Alan J. Agathen for appellant) (Larry R. Ruhmann for respondent).

Telephone Hearing Cell Phone Use Dropped Call

(1)Where a claimant’s appeal from the denial of unemployment benefits was dismissed on the basis that he failed to show good cause for his failure to participate in a tele-phone hearing with the Appeals Tribunal of the Division of Employment Security after the claimant’s cell phone dropped the call and he did not return to the call quickly enough, the dismissal is reversed and remanded because the division’s regulations do not prohibit cell phone use and the claimant was ready and willing to participate in the hearing, and the division’s “unwritten policy” that claimants must immediately rejoin the call was beyond its authority and violated the requirement of liberal construction.

(2)Where the Division of Employment Security cited a claimant’s caring for a young child during his telephone appeal as a reason for its finding that a claimant failed to show good cause for his failure to participate in the hearing after technical difficulties, no regulation prohibited childcare during a hearing, so the conclusion was an abuse of discretion.

Judgment is reversed and remanded.

Taylor v. Division of Employment Security (MLW No. 69164/Case No. WD78931 – 11 pages) (Missouri Court of Appeals, Western District, Pfeiffer, J.) Appealed from the Labor and Industrial Relations Commission (John J. Ammann and Allison F. Simmonds, St. Louis, for appellant) (Ninion S. Riley and Mandolin Jackson, pursuant to Rule 13, Jefferson City, for respondent).

Workers’ Compensation Mental Injury Occupational Disease Similarly-Situated Employees

Where a woman who worked for the highway department responding to catastrophic accidents for many years suffered a work-related depression, the claimant need no longer prove that she suffered extraordinary and unusual work-related stress when compared to similarly-situated employees because that requirement is not expressed by the plain language of the statute, but was a judicially created standard under liberal construction, and the 2005 amendment to the Workers’ Compensation statute requires strict construction, and substantial and competent evidence supported the finding that the claimant suffered a work-related occupational disease to support the award of permanent partial disability and future medical care.

Judgment is affirmed.

Mantia v. Department of Transportation (MLW No. 69297/Case No. ED103016 – 16 pages) (Missouri Court of Appeals, Eastern District, James M. Dowd, J.) Appealed from the Labor and Industrial Relations Commission (Jeffrey Wells Wright and Catherine Stattman Salmon for appellant) (Jeffrey Ray Swaney and Ellen Joye Hudson for respondents).

SIF Liability Hearing Loss ‘Body As A Whole’

Where the Second Injury Fund challenged the award of benefits to a claimant, arguing that his preexisting disability of hearing loss did not meet the statutory threshold of a disability to a major extremity or to the body as a whole, the fund’s interpretation would read into the statute a disqualification to liability that is not present, so the award is affirmed because hearing loss constitutes an injury to the body as a whole under the Missouri Supreme Court’s decision in Pierson v. Treasurer, which was handed down before the 2005 amendments to workers’ compensation law but was not expressly abrogated by the legislature.

Judgment is affirmed.

Treasurer v. Horton (MLW No. 69259/Case No. WD79261 – 10 pages) (Missouri Court of Appeals, Western District, Witt, J.) Appealed from the Labor and Industrial Re-lations Commission (Maggie M. Ahrens, Jefferson City, for appellant) (Christine M. Kiefer, Jefferson City, for respondent).

Temporary Award Commutation

Where an employer had a history of disregarding a temporary award made by an administrative law judge and evidence showed that a claimant who was permanently and totally disabled suffered hardship by being required to pre-pay and wait for reimbursement, the award of commutation by the Labor and Industrial Relations was supported by sufficient and competent evidence.

Judgment is affirmed.

Thomas v. Forsyth Care Center (MLW No. 68952/Case No. SD34151 – 8 pages) (Missouri Court of Appeals, Southern District, Lynch, J.) Appealed from the Labor and In-dustrial Relations Commission.

Walking Injury After Work Extended Premises

Where a claimant injured her ankle when she stepped off a sidewalk while leaving work, the award of workers’ compensation benefits is affirmed because the claimant was injured not because she was walking but because she encountered a risk source, which was the steep drop-off of the sidewalk, to which she would not have been exposed in everyday life, and under the extended premises doctrine, she was injured when she encountered a risk on property owned and controlled by the employer.

Judgment is affirmed.

Lincoln University v. Narens (MLW No. 69030/Case No. WD79003 – 18 pages) (Missouri Court of Appeals, Western District, Martin, J.) Appealed from the Labor and In-dustrial Relations Commission (Brian R. Herman, Jefferson City, for appellant) (Brian J. Dean, St. Louis, for respondent).