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Home / Supplements and Special Sections / Major Opinions / 2018 pt. 2 Major Opinions Digest

2018 pt. 2 Major Opinions Digest

Arbitration

Motion To Compel

Arbitrator Selection

Where a lender challenged the denial of an application to compel arbitration in a dispute with a borrower over a loan default, the judgment is affirmed because the arbitrator designated in the parties’ documents was no longer available, and the trial court properly found that it could not designate a new arbitrator because the language of the arbitration agreement limited arbitration to the agreed-upon arbitrator.

Judgment is affirmed.

A-1 Premium Acceptance, Inc. v. Hunter (MLW No. 72211/Case No. SC96672 – 11 pages) (Supreme Court of Missouri, Wilson, J.; Draper, Russell, Powell, Breckenridge and Stith, JJ., and Page, Sp. J., concur. Fischer, C.J., not participating) Appealed from circuit court, Jackson County, Fahnestock, J. (Mark D. Murphy, Overland Park, Kansas, for appellant) (F. Paul Bland, Washington, D.C., Dale K. Irwin, Kansas City, Missouri, and David Angle and Matthew Christopher Wilson, Columbia, for respondent).

 

Arbitration

Motion to Compel

Threshold Issues

Delegation Clause

Where an employer challenged the overruling of its motion to compel arbitration in an action filed by a former employee, the employee signed an arbitration agreement that showed an intent to delegate threshold matters of arbitrability to an arbitrator, so the judgment against the employer is reversed and remanded with an order to proceed to arbitration because the relevant provision was bilateral and included consideration in that neither party had the right to unilaterally amend the clause or avoid its obligation.

 

Consideration

Dissenting opinion by Draper, J.: “I believe the arbitration agreement in this case is not enforceable because it lacked legal consideration due to Soars’ at-will employment status. Accordingly, I would affirm the circuit court’s order, which upholds more than a decade of Missouri case law.”

Judgment is reversed and remanded.

Soars v. Easter Seals Midwest (MLW No. 72492/Case No. SC97018 – 15 pages) (Supreme Court of Missouri, Fischer, C.J.; Wilson, Russell, Powell and Breckenridge, JJ., concur; Stith, J., concurs in opinion of Draper, J.) Appealed from circuit court, St. Charles County, House, J. (Charles E. Reis IV and Nicole Rivers, St. Louis, for appellant) (Bret Kleefuss, St. Louis, for respondent).

Administrative

Licensure

Exhaustion Prerequisite

Non-Contested Case

Where a former bail bond agent challenged a trial court’s judgment denying him relief from an administrative decision refusing his request for license renewal, the exhaustion of remedies is required before judicial review of a non-contested case, but the exhaustion prerequisite is prospectively applied and thus did not apply to the agent, but the director properly exercised the discretion to refuse licensure because he had outstanding judgments.

Standard of review

Concurring opinion by Fischer, C.J.: “As I have stated before, the appropriate standard of review for when the circuit court issues a preliminary order in mandamus but then denies a permanent writ is that this Court will affirm the circuit court’s judgment ‘unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law[.]’”

Appeal

Concurring opinion by Wilson, J.: “I concur in the result reached by the principal opinion but do not join either that opinion or the concurring opinion of the Chief Justice with respect to the standard of review. As noted in the foregoing opinions, the lack of merit in Robison’s claims is clear regardless of which standard of review is used. In a proper case, however, the Court needs to give this question greater attention than it has received to date. In United States Department of Veterans Affairs v. Boresi, 396 S.W.3d 356, 358 (Mo. banc 2013), and State ex rel. Ashby Road Partners LLC v. State Tax Commission, 297 S.W.3d 80, 83 (Mo. banc 2009), on which Boresi relies, the question was not what standard of review should apply but whether, if the circuit court denied a petition for extraordinary writ following the issuing of a summons rather than a preliminary writ, the petitioner should proceed by way of appeal or by filing the petition anew in a higher court. Both cases held appeal was the proper route, and neither devoted much attention to the proper standard of review to be applied in such an appeal.”

Judgment is affirmed.

State ex rel. Robison v. Lindley-Myers (MLW No. 71758/Case No. SC96719 – 15 pages) (Supreme Court of Missouri, Powell, J.; Draper, Russell, Breckenridge and Stith, JJ., concur; Fischer, C.J., concurs in separate opinion; Wilson, J., concurs in separate opinion) Appealed from circuit court, Cole County, Joyce, J. (David F. Barrett, Jefferson City, for appellant) (Cheryl C. Nield, Jefferson City, for respondent).

 

Administrative

Regulation Validity

Captive Cervid Industry

Where the Missouri Conservation Commission challenged the grant of declaratory and injunctive relief to hunting and breeding facilities of captive deer species in a dispute over regulations proposed by the commission to eradicate a fatal disease, the judgment for the breeding facilities is reversed because the relevant terms were unambiguous as used in the state constitution, and the commission had the authority to regulate the captive animals, which were subject to the regulations.

Judgment is reversed.

Hill v. Missouri Department of Conservation (MLW No. 71811/Case No. SC96739 – 19 pages) (Supreme Court of Missouri, Wilson, J.; all concur) Appealed from circuit court, Gasconade County, Schollmeyer, J. (William Ray Price Jr., J. Kent Lowrey, Jeffery T. McPherson, Alexander C. Barrett and Paul Louis Brusati, St. Louis, for the commission) (Jean Paul Bradshaw II, John A. (Jay) Felton, J. Eric Weslander, Rachel E. Stephens and Kurt U. Schaefer, Kansas City, Missouri, for industry participants).

 

Administrative

Work-Comp Carrier

Unpaid Premiums

Exhaustion Requirement

Where a workers’ compensation insurance carrier brought a breach-of-contract action to recover unpaid insurance premiums, the district court’s dismissal of the action is reversed and remanded because the administrative procedures available to the insurer were too informal to require the exhaustion of remedies under then-applicable Missouri law.

Judgment is reversed and remanded.

Travelers Property Casualty Insurance Company of America v. Jet Midwest Technik, Inc. (MLW No. 71956/Case No. 17-2628 – 7 pages) (U.S. Court of Appeals, 8th Circuit, Stras, J.) Appealed from U.S. District Court, Western District of Missouri, Smith, J. (Brian R. Shank, St. Louis, argued for appellant) (Adam J. Gasper, Kansas City, Missouri, argued for appellee).

Civil Rights

Inmate Action

MHRA

Handicap-Accessible Facilities

Where a paraplegic inmate argued that the Missouri Commission on Human Rights has statutory authority to investigate his claims of disability-based discrimination under the Missouri Human Rights Act, the denial of relief is affirmed because Missouri prisons are not “places of public accommodation,” so they are not subject to the anti-discrimination provisions of the act, and Section 213.070.1(3) does not extend the anti-discrimination mandate for state agencies beyond employment, housing and public accommodations.

Judgment is affirmed.

State ex rel. James Naugles v. Missouri Commission on Human Rights (MLW No. 72018/Case No. WD81135 – 14 pages) (Missouri Court of Appeals, Western District, Ahuja, J.) Appealed from circuit court, Cole County, Green, J. (Brendan D. Roediger, Joan M. Hoyt (Rule 13 student) and Jenna Scott (Rule 13 student), St. Louis, for appellant) (Mandolin Jackson, Jefferson City, for respondent).

Civil Rights

MHRA

Burden Of Proof

Where an African American bus driver brought claims of discrimination against her employer under the Missouri Human Rights Act, the bus company is an interstate compact between Missouri and Illinois and is not subject to any burden unilaterally imposed on it by either state’s law, so the action was properly dismissed for failure to state a claim upon which relief can be granted because the increase in potential employer liability that accompanied the different burdens of proof under the MHRA and the Illinois act imposed an impermissible unilateral burden.

Judgment is affirmed.

Jordan v. Bi-State Development Agency (MLW No. 72032/Case No. ED106158 – 8 pages) (Missouri Court of Appeals, Eastern District, Hess, J.) Appealed from circuit court, St. Louis County, Wallach, J. (Thomas J. Sanfilippo, Jeremy D. Hollingshead and Katie M. Rhoten for appellant) (Jeremy D. Shook and David A. Castleman for respondent).

Contracts

Breach Of Contract

Authority

Standing

Where the state challenged the dismissal of its claims of breach of contract and unjust enrichment in a dispute arising over reimbursement from a petroleum spill, the state’s appeal was timely, and the attorney general had the authority to file an action on behalf of the Board of Trustees of the Missouri Petroleum Storage Tank Insurance Fund, which has standing to sue, so the trial court erred in dismissing the state’s claims for lack of standing.

Timeliness

Dissenting opinion by Wilson, J.: “The principal opinion concludes a circuit court’s authority to act under Rule 81.05 is more limited than its authority to act under Rule 75.01. I agree. But the principal opinion misapplies this well-established principle and holds the state’s appeal was timely. Accordingly, I must respectfully dissent….

“Under Massman, there is no action a circuit court can take to extend its time for acting pursuant to Rule 75.01 beyond 30 days, or to extend its time for acting on an authorized post-trial motion beyond the 90-day period set forth in Rule 81.05(a)(2)(A). Accordingly, the circuit court’s attempt to achieve one or the other (or both) with the October 11 order was for naught. Because the circuit court neither sustained the state’s motion on the ground(s) presented nor overruled that motion outright, that motion was overruled by operation of Rule 81.05(a)(2)(A) on the 90th day after it was filed. The state then had 10 days from that date to file its notice of appeal challenging the June 22, 2016, judgment. Because it failed to do so, this appeal should be dismissed as untimely filed.”

Judgment is reversed and remanded.

State ex. Rel. Attorney General Joshua D. Hawley v. Pilot Travel Centers (MLW No. 72038/Case No. SC96885 – 22 pages) (Supreme Court of Missouri, Russell, J.; Draper, Powell, Breckenridge and Stith, JJ., concur; Wilson, J., dissents in separate opinion filed; Fischer, C.J., concurs in opinion of Wilson, J.) Appealed from circuit court, Cole County, Beetem, J. (D. John Sauer and Joshua Devine, Jefferson City, for appellant) (Chad E. Blomberg, Robert Kent Sellers and Joshua B. Christensen, Kansas City, Missouri, for respondent).

Criminal Law

Carjacking

Waiver of Challenge to Conviction and Sentence

Assessment of Criminal History Points

Defendant pleaded guilty to carjacking and related offenses after admitting he stole a car at gunpoint with the owner’s dog in the backseat; defendant later crashed the vehicle, killing the dog. Defendant’s plea agreement included a waiver of challenge to his conviction and sentence. The district court imposed incarceration and restitution for the value of the victim’s dog.

Where district court had no evidence for the cost of the victim’s dog, it erred in imposing restitution. Defendant’s challenge to the assessment of criminal history points was precluded by his plea agreement waiver.

Colloton, J., concurring In part and dissenting In part: “Citing decisions concerning restitution for victims of sexual abuse, in which this court has approved the use of estimates, reliance on ‘basic knowledge of medical expenses,’ the court thought it appropriate to make a ‘conservative’ estimate of the victim’s losses.”

Judgment is affirmed in part and reversed In part.

U.S. v. Bagley (MLW No. 72279/Case No. 17-2382 – 5 pages) (U.S. Court of Appeals, Eighth Circuit, Loken, J.) Appealed from U.S. District Court, Western District of Missouri, Sachs, J. (Stephen C. Moss for appellant) (Jess E. Michaelsen for appellee)

 

Criminal Law

Disqualification Order

Prosecutor’s Office

Where a prosecutor challenged a circuit court order disqualifying her and her entire office from prosecuting a defendant in an unlawful use of a weapon case in which a police officer was both a witness and a victim who resorted to the use of deadly force to apprehend the defendant, the case was rendered moot when the disqualification order was vacated, but the case involved significant public interest and importance, and the writ was made permanent because the order contravened the Missouri Supreme Court’s decision in State v. Lemasters.

Writ made permanent.

State ex rel. Kimberly M. Gardner v. Boyer (MLW No. 72408/Case No. SC97026 – 13 pages) (Supreme Court of Missouri, Wilson, J.; all concur) Original proceeding in prohibition (Robert H. Dierker Jr. and H. Morley Swingle, St. Louis, for circuit attorney’s office) (Brian P. Millikan, Kirkwood, for officer) (Mary Dames Fox and Erika Fitch Wurst, St. Louis, for Davis).

 

Criminal Law

Disqualification Order

Prosecutor’s Office

Where a county prosecutor challenged a circuit court order disqualifying her and her entire office from representing the state in a post-conviction relief case in which a defendant was represented on appeal by a former assistant public defender who had joined the prosecutor’s office, the writ prohibiting the court from enforcing its order is made permanent because the order directly contravened the Missouri Supreme Court’s decision in State v. Lemasters and irreparable harm would be caused if relief is not granted.

Writ made permanent.

State ex rel. Jean Peters-Baker v. Round (MLW No. 72409/Case No. SC96931 – 13 pages) (Supreme Court of Missouri, Wilson, J.; all concur) Original proceeding in prohibition (Terrence M. Messonnier and Robert E. Sauls, Kansas City, Missouri, for the prosecutor) (Laura Grether Martin, Kansas City, Missouri, for defendant) (Stephen P. Sokoloff, Jefferson City, for the Missouri Association of Prosecuting Attorneys) (Gregory M. Goodwin, Jefferson City, for the attorney general).

 

Criminal Law

Docket Fee Requirement

Right Of Appeal

Three-Fourths Rule

Even though a defendant failed to pay his docket fee on time, the court has jurisdiction over his appeal because the docket fee cannot be a jurisdictional prerequisite for filing an appeal, and the judgment is affirmed because the court properly dismissed the defendant’s claim that the state must provide him with a release date under the “three-fourths rule” because the rule has not been applied since 1879 to offenders serving life sentences, and it has never been applied to offenders who incur violations while in prison.

Judgment is affirmed.

Goldsby v. Lombardi (MLW No. 71929/Case No. SC96639 – 15 pages) (Supreme Court of Missouri, Stith, J.; all concur) Appealed from circuit court, Cole County, Green, J. (Jeffrey T. McPherson, St. Louis, for appellant) (Gregory M. Goodwin and Stephen Hawke, Jefferson City, for respondent).

 

Criminal Law

Expert Testimony

New Standards

Relevance

Where the circuit attorney sought a writ of prohibition to prevent a trial court from enforcing an order excluding expert testimony in a child sex-abuse case, applying new standards for the admissibility of expert testimony in criminal cases, the preliminary order is made permanent because expert testimony regarding the process by which children disclose allegations of sexual abuse is relevant, so the court erred in finding that it would not assist the jury.

Preliminary order made permanent.

State ex rel. Kim M. Gardner v. Wright (MLW No. 72035/Case No. ED106935 – 18 pages) (Missouri Court of Appeals, Eastern District, Robert G. Dowd Jr., J.) Appealed from circuit court, St. Louis (Karelia S. Rajagopal and Joanna L. Byrne for appellant) (Nina C. Sykora for respondent).

 

Criminal Law

Habeas Relief

Authority

Where the attorney general filed a petition for a writ of certiorari to review the issuance of a writ of habeas corpus, the judgment is affirmed because the habeas court had the authority to review the defendant’s claim pertaining to earned compliance credits, so the court refuses to quash the record of the habeas court, and the defendant must be released from confinement.

Judgment is affirmed.

State ex rel. Joshua D. Hawley v. Chapman (MLW No. 72239/Case No. WD81589 – 13 pages) (Missouri Court of Appeals, Western District, Howard, J.) Original proceeding on petition for a writ of certiorari

 

Criminal Law

Mental Examination

Trial Court Order

Where a defendant in a first-degree murder case sought to prevent the trial court from ordering a mental examination, the preliminary order in prohibition staying the trial court’s order for the examination is made permanent as modified because the court did not have the authority to order the examination solely on the defendant’s anticipated use of the defense of diminished capacity.

Diminished capacity

Concurring opinion by Sullivan, J.: “I agree with the majority neither Section 552.015 nor Section 552.020 grants the trial court authority to order a mental examination to assess whether a criminal defendant had a diminished capacity at the time of the alleged offense, but I would hold the trial court does have the authority to order a mental examination for good cause shown under Rule 25.06(B) based on a defendant’s anticipated use of the negative defense of diminished capacity.”

Order vacated.

Caruthers v. Wexler-Horn (MLW No. 71847/Case No. ED106685 – 18 pages) (Missouri Court of Appeals, Eastern District, Dolan, J.) Writ of prohibition (Ramona A. Gau for relator) (Jerrod Duane Mahurin for respondent).

Domestic Relations

Termination of Parental Rights

Abuse and Neglect

Sufficiency of Evidence

Defendant’s parental rights to his children were terminated after the trial court found, based on video interviews of the children’s half-siblings, that defendant committed physical and emotional abuse of the children. On appeal, defendant challenged the admission of the interviews and the sufficiency of the evidence supporting termination of his parental rights.

Where defendant’s children’s half-siblings’ video interviews constituted hearsay evidence, trial court erred by admitting them into evidence because half-siblings, with no relation to defendant, had none of the trustworthiness dynamics that would permit hearsay statements of biological or legal child; defendant was prejudiced by admission because the interviews constituted sole evidence of alleged abuse.

Judgment is reversed and remanded.

In the Interest of D.S.H. and D.M.H.D.K.T. v. Greene County Juvenile Officer (MLW No. 72248/Case No. SD35445 – 11 pages) (Missouri Court of Appeals, Southern District, Lynch, J.) Appealed from Circuit Court, Greene County (Calvin R. Holden, J.)

Employer – Employee

Race Discrimination

MHRA Amendment

Contributing Factor

Where a white woman employed as a retail sales consultant claimed she was discriminated against by her African American supervisors, the trial court erred in applying the 2017 amendments to the Missouri Human Rights Act retroactively to her claims because they accrued prior to the effective date of the amendments, so the contributing factor standard should have been applied, and the judgment is reversed in part because the evidence created a genuine issue of material fact on the claims of racial discrimination and hostile work environment as to whether she suffered an adverse action, whether race was a contributing factor in the adverse action and whether she was damaged under the contributing-factor standard, but summary judgment for the employer is affirmed on the retaliation claim because the plaintiff failed to present evidence that the defendant committed an act of reprisal.

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

Bram v. AT&T Mobility Serv. LLC (MLW No. 72483/Case No. WD81538 – 17 pages) (Missouri Court of Appeals, Western District, Ardini, J.) Appealed from circuit court, Cass County, Collins, J. (Charles R. Dickman for appellant) (David L. Schenberg for respondent).

Juvenile

Due Process

Admission To Facts

Waiver

Where a juvenile argued that the juvenile court violated his due process rights when it accepted his admission of the charges alleged, the juvenile’s equivocal answers and mental health issues did not make his plea involuntary where the court ensured that he understood the relevant issues, and the hearing transcript showed that he was able to understand and participate in the proceedings, and the judgment is affirmed because the juvenile will not have to register as an adult sex offender after the age of 21, so he did not show that he was misled.

Judgment is affirmed.

In the Interest of A.C.C. (MLW No. 72166/Case No. ED106153 – 11 pages) (Missouri Court of Appeals, Eastern District, James M. Dowd, J.) Appealed from circuit court, St. Charles County, Dowd, J. (Craig A. Johnston for appellant) (Charlene E. Stockman for respondent).

 

Insurance

Right To Notice

Right To Intervene

Where an insurer challenged the denials of its motion to intervene and motion for relief from judgment, the judgment is affirmed because the rights to notice and to intervene created by Section 537.065.2 do not apply to Section 537.065 contracts entered into before the amended statute took effect.

Judgment is affirmed.

Desai v. Seneca Specialty Insurance Company (MLW No. 71815/Case No. WD81220 – 16 pages) (Missouri Court of Appeals, Western District, Martin, J.) Appealed from circuit court, Jackson County, Kanatzar, J. (Jeffrey M. Bauer, Springfield, and Jessica M. Agnelly, Kansas City, Missouri, for respondents) (Jeremiah W. “Jay” Nixon, James F. Bennett and Michael J. Kuhn, St. Louis, for appellant).

 Landlord-Tenant

Rent And Possession

Implied Warranty Of Habitability

In Custodia Legis Procedure

Where a tenant, whose ceiling collapsed due to a water leak, was barred by the trial court due to her failure to pay rent into escrow from raising the affirmative defense and counterclaim of breach of the implied warranty of habitability in an action brought by her landlord for rent and possession, the court did not err in relying on the in custodial legis procedure from a 1973 appellate decision, but courts may exercise discretion to determine whether to apply the procedure on a case-by-case basis.

Disparity

Dissenting opinion by Breckenridge, J.: “The principal opinion finds the in custodia legis procedure ‘preserves the status quo’ and ‘is not a windfall to landlords.’ But requiring a tenant to deposit rent as it comes due prior to adjudication of a landlord’s claim for rent and possession is a financial prerequisite to a tenant’s access to the courts to present a claim or defense of a breach of the implied warranty of habitability. And the principal opinion cannot cite to any other action – based in either property or contract –requiring the disputed amount to be paid into the court as a precondition to asserting a defense or raising a claim. Moreover, such findings ignore the disparity between tenants and landlords that often exists in situations in which the implied warranty of habitability is being asserted and overlook the likelihood that requiring payment of rent as it becomes due acts as a deterrent to tenants wishing to assert the defense. Therefore, in practice, the in custodia legis procedure revives the constructive eviction doctrine the implied warranty of habitability was designed to replace. Accordingly, I am not persuaded that an in custodia legis requirement is a necessary procedural safeguard in rent and possession actions.”

Judgment is affirmed.

Kohner Properties, Inc. v. Johnson (MLW No. 71812/Case No. SC95944 – 16 pages) (Supreme Court of Missouri, per curiam; Fischer, C.J., Wilson and Russell, JJ., concur; Breckenridge, J., dissents in separate opinion filed; Stith, J., concurs in opinion of Breckenridge, J. Draper and Powell, JJ., not participating) Appealed from circuit court, St. Louis County, Draper, J. (Lee R. Camp and Jacki L. Langum and Cheryl Rafert and Daniel E. Claggett, St. Louis, for appellant) (Randall J. Reinker, William Edward Waits and Mary J. Ligocki of Reinker, St. Louis, for respondent).

Negligence

Co-Employee Liability

Affirmative Acts

Where an employee sued his supervisor claiming that his removal of a safety guard from a laminating machine and his order to clean the machine while running constituted negligence and resulted in his injury, the trial court properly found that the plaintiff made a submissible case and was not immune under workers’ compensation law because the supervisor, as represented by the defendant ad litem after his death, committed affirmative negligent acts that caused the injury.

Judgment is affirmed.

Brock v. Dunne (MLW No. 72107/Case No. ED105739 – 44 pages) (Missouri Court of Appeals, Eastern District, Dolan, J.) Appealed from circuit court, St. Louis County, McLaughlin, J. (Brian R. Shank for appellant) (Patrick K. Bader and Jacob C. Murov for respondent).

 

Negligence

Medical Negligence

Wrongful Death

Insurance Question

Where the plaintiffs in a wrongful-death, medical-negligence case argued that the trial court committed reversible error by denying them the right to ask their approved insurance question, the judgment is reversed and remanded because the proper foundation for the question was laid, and the plaintiff properly proposed to ask the question in between others, so the court did not have the discretion to refuse it.

Judgment is reversed and remanded.

Eoff v. McDonald (MLW No. 72338/Case No. ED106265 – 10 pages) (Missouri Court of Appeals, Eastern District, James M. Dowd, J.) Appealed from circuit court, St. Louis County, Kerr, J. (James N. Guirl II for appellant) (Randall A. Bauman and J. Thaddeus Eckenrode for respondent).

 

Negligence

Personal Injury

Medical Bill Evidence

Where a plaintiff brought a personal-injury action against a bus company after she was injured when a bus collided with her bicycle, the trial court did not err in denying the defendant’s new trial motion because the “amount charged” for medical bills could be admitted under either the former or amended version of the statute, and the judgment for the plaintiff is affirmed because the court also did not err in denying the motion for remittitur because the statutory cap does not apply to public employees arising out of the operation of motor vehicles within the course of their employment, and there was no instructional error.

Judgment is affirmed.

Brancati v. Bi-State Development Agency (MLW No. 72476/Case No. ED106359 – 26 pages) (Missouri Court of Appeals, Eastern District, Hoff, J.) Appealed from circuit court, St. Louis County, Ribaudo, J. (Bharat Varadachari for appellant) (Joan M. Lockwood for respondent).

 

Negligence

Wrongful Death

Defendant’s Testimony

Expert Testimony

Where the adult children of a woman who died after a hernia surgery challenged a judgment in favor of the defendant surgeon in their wrongful-death action, the judgment is affirmed because the trial court did not abuse its discretion in allowing the surgeon to testify about the cause of the bowel injury because his opinion at trial was not substantially different from that disclosed in discovery, and the court also did not abuse its discretion in allowing the testimony of the defendant’s experts because they testified about their own specialties and it was not cumulative.

Judgment is affirmed.

Shallow v. Follwell (MLW No. 72107/Case No. SC96901 – 12 pages) (Supreme Court of Missouri, Powell, J.; Fischer, C.J., Wilson, Russell, Breckenridge and Stith, JJ., concur; Draper, J., dissents) Appealed from circuit court, Lincoln County, Mennemeyer, J. (Amy Collignon Gunn, Anne Brockland and Elizabeth Washam, St. Louis, for appellants) (Mark A. Gonnerman and William J. Magrath, St. Louis, for defendants).

Probate

SVP

Civil Commitment

Effectiveness Of Counsel

Where an appellant who challenged his civil commitment as a sexually violent predator argued that he received ineffective assistance of counsel at his commitment trial, the appellant had a due process right to effective assistance, and his counsel exercised reasonable trial strategy, so there was no ineffective assistance claim, and the judgment is affirmed because the appellant also failed to show that the trial court erred in allowing testimony about a prior murder arrest or that he was subjected to manifest injustice when the court overruled his motion to disqualify a juror because the totality of the juror’s voir dire examination showed that he could be reasonable and impartial.

Standard of review

Concurring opinion by Draper III, J.; “I concur with the principal opinion’s holding James Braddy (hereinafter, ‘Braddy’) has a constitutional right to effective assistance of counsel in proceedings to commit him pursuant to the Sexually Violent Predator Act (hereinafter, ‘the Act’). I further concur with the principal opinion’s holding Braddy did not receive ineffective assistance of counsel. However, the principal opinion did not reach or resolve the issue concerning which standard should apply when a civilly committed sexually violent predator (hereinafter, ‘SVP’) raises ineffective assistance of counsel claims. Hence, I write separately because I believe this case of first impression, along with its companion case, In re the Matter of the Care and Treatment of Nicholas Grado, No. SC96830 (Mo. banc 2018), present this Court with the opportunity to declare the appropriate standard. After reviewing a wealth of persuasive legal authority from other jurisdictions implementing the same standard under the same circumstances, had the principal opinion addressed the matter, I believe it would be clear these claims should be reviewed under the standard set forth in Strickland v. Washington.”

Judgment is affirmed.

In the Matter of the Care and Treatment of James Braddy (MLW No. 72146/Case No. SC96851 – 28 pages) (Supreme Court of Missouri, Stith, J.; Fischer, C.J., Wilson, Russell and Powell, JJ., concur; Draper, J., concurs in separate opinion filed; Breckenridge, J., concurs in opinion of Draper, J.) Appealed from circuit court, Iron County, Head, J. (Chelsea R. Mitchell, Columbia, for appellant) (Katharine A. Dolin and Daniel McPherson, Jefferson City, for respondent).

 

Probate

SVP

Civil Commitment

Effectiveness Of Counsel

Where an appellant who challenged his civil commitment as a sexually violent predator argued that he was entitled to but deprived of the effective assistance of counsel, sexually violent predators have a fundamental liberty interest at stake, and the court holds that they have a due process right to effective assistance, and the judgment is affirmed because the appellant failed to show that his counsel was ineffective, and sufficient evidence supported the SVP determination.

Standard of review

Concurring opinion by Draper III, J.; “I concur with the principal opinion’s holding Nicholas Grado (hereinafter, “Grado”) has a constitutional right to effective assistance of counsel in proceedings to commit him pursuant to the Sexually Violent Predator Act (hereinafter, “the Act”). I further concur with the principal opinion’s holding Grado did not receive ineffective assistance of counsel. However, the principal opinion did not reach or resolve the issue concerning which standard should apply when a civilly committed sexually violent predator (hereinafter, “SVP”) raises ineffective assistance of counsel claims. Hence, I write separately because I believe this case of first impression, along with its companion case, In re the Matter of the Care and Treatment of James Braddy, No. SC96851 (Mo. banc 2018), present this Court with the opportunity to declare the appropriate standard. After reviewing a wealth of persuasive legal authority from other jurisdictions implementing the same standard under the same circumstances, had the principal opinion addressed the matter, I believe it would be clear these claims should be reviewed under the standard set forth in Strickland v. Washington.”

Judgment is affirmed.

In the Matter of the Care and Treatment of Nicholas Grado (MLW No. 72147/Case No. SC96830 – 28 pages) (Supreme Court of Missouri, Stith, J.; Fischer, C.J., Wilson, Russell and Powell, JJ., concur; Draper, J., concurs in separate opinion filed; Breckenridge, J., concurs in opinion of Draper, J.) Appealed from circuit court, Jackson County, Forsyth, J. (Chelsea R. Mitchell, Columbia, for appellant) (Katharine A. Dolin and Daniel McPherson, Jefferson City, for respondent).

 

Public Utilities

General Rate Increase

Energy-Efficiency Measures

Electric-Vehicle Charging

Where an electric company argued in a general rate case that the Public Service Commission erroneously refused to allow it to adjust the electrical consumption during the test year used in the rate case to reflect its new energy-efficiency measures, the denial of an annualization adjustment was supported by substantial and competent evidence and was not arbitrary or capricious, but the commission erred in holding that the company’s electric vehicle-charging stations did not fall within the statutory definition of “electric plant

Judgment is reversed and remanded in part.

In the Matter of: Kansas City Power and Light Company’s Request for Authority to Implement a General Rate Increase v. Public Service Commission (MLW No. 71962/Case No. WD80911 – 20 pages) (Missouri Court of Appeals, Western District, Ahuja, J.) Appealed from the Missouri Public Service Commission (James M. Fischer, Larry W. Dority, Jefferson City; Roger W. Steiner, Robert Hack, Joshua Harden, Karl Zobrist, Kansas City, Missouri; and Lisa Gilbreath, Portland, for appellant) (Jennifer Heintz, John Borgmeyer and David Wordsmall, Jefferson City, for respondents).

Public Utilities

Transmission Line Project

Denial Of Application

Necessity

Where a company that sought to build a multistate electric transmission line challenged the denial of its application, the Public Service Commission erroneously found that it could not grant the relevant certificate before the company obtained consent from the counties, and the case is remanded for a determination of whether the proposed project is necessary or convenient for the public service.

Judgment is reversed and remanded.

Grain Belt Express Clean Line, LLC v. Public Service Commission (MLW No. 71893/Case No. SC96993 – 11 pages) (Supreme Court of Missouri, per curiam) Appealed from the Public Service Commission (Jeremiah W. (Jay) Nixon, John J. Rehmann II, Philip A. Cantwell and Adam J. Simon, St. Louis, and James R. Layton, St. Louis, Peggy A. Whipple, Penny Speake and Douglas Healy, and Paul A. Agathan, Washington, for appellants) (Jennifer L. Heintz, Shelley Brueggemann, Curt Stokes and Kevin A. Thompson, Jefferson City, for respondent).