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Home / Opinions / Courts / Court of Appeals, Eastern District / Missouri Court of Appeals, Eastern District Digest: Nov. 14, 2022

Missouri Court of Appeals, Eastern District Digest: Nov. 14, 2022



Anticipatory Breach of Settlement

Defendants appealed the trial court’s grant of summary judgment in favor of plaintiff on its breach of contract claim. Defendants argued that the trial court improperly granted summary judgment where plaintiff had anticipatorily breached the parties’ settlement by filing suit prior to defendants’ purported breach.

Where defendants were not aware of plaintiff’s suit until after they had breached the settlement by failing to make payment, and did not accept plaintiff’s repudiation by continuing to make partial payments, they could not raise the affirmative defense of anticipatory breach by repudiation.

Judgment is affirmed.

Professional Funding Company v. Bufogle (MLW No. 79074/Case No. ED110482 – 10 pages) (Missouri Court of Appeals, Eastern District, Stevens, J.) Appealed from circuit court, St. Louis County, Ribaudo, J. (David L. Baylard, for appellants) (David G. Bender, for respondent)



Promissory Note

Judicial Foreclosure of Collateral

Defendant appealed the grant of summary judgment for plaintiff and third-party defendants. Defendant executed two notes with plaintiff, secured by two collectible vehicles. Plaintiff sued to collect payment and sought judicial foreclosure on the vehicles. In response, defendant filed a counterclaim for abuse of process and a third-party petition alleging fraudulent misrepresentation. On appeal, defendant argued that there was a factual dispute over whether a balance was owed on the notes and that third-party defendants had failed to negate the element of reliance.

Where defendant’s evidence opposing plaintiff’s claim violated the parol evidence rule and the statute of frauds, the trial court correctly granted plaintiff summary judgment, but the court reversed summary judgment for one of the third-party defendants where defendant raised a genuine issue of material fact regarding whether defendant reasonably relied on that third-party defendant’s misrepresentations in not making payment on the notes.

Judgment is affirmed in part and reversed in part.

Pecos I, LLC v. Meyer (MLW No. 79075/Case No. ED110302 – 25 pages) (Missouri Court of Appeals, Eastern District, Hess, J.) Appealed from circuit court, St. Charles County, Cunningham, J. (John S. Sandberg, Timothy C. Sansone, and Zachary S. Merkle, for appellant) (John C. Grellne, for respondent)



Prompt Pay Act

Satisfaction of Judgment

Defendant appealed the trial court’s denial of its motion for an order showing satisfaction of the judgment obtained by plaintiff. Defendant argued that the money it tendered to plaintiff satisfied the plain, unambiguous meaning of the judgment, and thus the trial court impermissibly altered the terms of the judgment by changing the rate of interest due, as neither the judgment nor the Prompt Pay Act required compound interest.

Where the Prompt Pay Act did not provide for compound penalty interest, the trial court erred in applying such interest to the judgment to find that defendant had failed to satisfy the judgment with its payment.

Judgment is reversed and remanded.

Penzel Construction Company, Inc. v. Jackson R-2 School District (MLW No. 79073/Case No. ED110487 – 13 pages) (Missouri Court of Appeals, Eastern District, Hess, J.) Appealed from circuit court, Cape Girardeau County, Lewis, J. (Jeffrey A. Marriott, Ryan S. VanFleet, Matthew D. Wilson, and Brian J. Mayer for appellant) (Michael E. Wilson and Eugene F. Tucker II for respondent)


Criminal Law

Arson & Burglary

Post-Conviction Relief

Petitioner appealed the denial of his motion for post-conviction relief, filed after he pled guilty to property damage, arson, and burglary. Petitioner claimed that he received ineffective assistance of counsel when his attorney failed to advise him of a defense to his arson charge to obtain a lesser-included offense conviction and a defense to a burglary charge and failed to object to the prosecutor’s references to criminal offenses outside the record.

Where defendant was not prejudiced by the lack of advice regarding lesser-included offenses because he had not plausibly shown that he would have proceeded to trial with the correct advice, and where defendant had failed to prove that counsel did not inform him of his defenses to one of the burglary charges, the trial court correctly denied post-conviction relief.

Judgment is reversed.

Lusk v. State (MLW No. 79079/Case No. ED109987 – 13 pages) (Missouri Court of Appeals, Eastern District, Hess, J.) Appealed from circuit court, Cape Girardeau County, Lewis, J. (Maleaner R. Harvery, for appellant) (Karen L. Kramer, for respondent)


Criminal Law

Involuntary Manslaughter

Guilty Plea

Defendant appealed his guilty plea conviction for involuntary manslaughter and felony possession of a controlled substance, arguing that the trial court improperly accepted his guilty plea without a sufficient factual basis.

Where defendant admitted knowing that the decedent had overdosed and revived and further admitted to leaving the decedent alone with more drugs before he died, the evidence was sufficient to find that defendant consciously disregarded the risk of death to decedent.

Judgment is affirmed.

State v. Harris (MLW No. 79078/Case No. ED110074 – 15 pages) (Missouri Court of Appeals, Eastern District, Hess, J.) Appealed from circuit court, St Genevieve County, Horn, J. (Larry H. Ferrell and Matthew B. Ferrell, for appellant) (Justin E. Davis, for respondent)


Criminal Law

Juvenile Offender


Third-party intervenor appealed the setting aside of a default judgment for lack of service, while defendant cross-appealed the judgment against him on third-party intervenor’s unjust enrichment claim.

Where the setting aside of the default judgment constituted a final, appealable order and excluded third-party defendant from the case when it moved for reconsideration, its notice of appeal was untimely and had to be dismissed, but the judgment against defendant was reversed where there was no evidence that third-party’s conduct conferred any benefit on defendant.

Appeal is reversed, cross-appeal is dismissed.

Autumn Lakes Association v. Tran (MLW No. 79076/Case No. ED110228 – 13 pages) (Missouri Court of Appeals, Eastern District, Torbitzky, J.) Appealed from circuit court, St. Louis County, Hearne, J. (Gregory E. Anderson, Katharyn B. Davis, for appellant) (Emily E. Cantwell, Laura Toledo, for respondent)


Domestic Relations

Foster Care

Change of Placement

Mother appealed the trial court’s order placing her child, J.G.W., with his foster family in Washington, D.C. after they moved there, arguing that there was insufficient evidence that the change of placement was in J.G.W.’s best interests.

Where the court found sufficient evidence to support finding that modifying placement was in J.G.W.’s best interest, including the need for permanency and the diminishing likelihood that mother would regain custody, it affirmed the trial court’s exercise of discretion.

Judgment is affirmed.

In the Interest of: J.G.W. (MLW No. 79077/Case No. ED110147 – 9 pages) (Missouri Court of Appeals, Eastern District, Dowd, J.) Appealed from circuit court, St. Louis County, Dunne, J. (William P. Grant, for appellant) (Megan L. Dittmann-Ryan, for respondent)