Missouri Court of Appeals, Eastern District Digest: Jan. 26, 2023

Criminal Law

Postconviction Relief

Timeliness of Petition

Petitioner appealed the denial of his motion for post-conviction relief without an evidentiary hearing. Petitioner argued that the untimeliness of his motion should be excused due to COVID-19 protocols imposed at his correctional facility that allegedly interfered with petitioner’s ability to timely prepare and file his motion. Petitioner further alleged that he was abandoned by appointed counsel.

Where the trial court failed to issue any findings of fact or conclusions of law regarding the timeliness of petitioner’s motion, it erred in proceeding directly to the merit, requiring remand for the trial court to make the required findings.

Judgment is reversed and remanded.

Ross v. State (MLW No. 79337/Case No. ED110423 – 12 pages) (Missouri Court of Appeals, Eastern District, Torbitzky, J.) Appealed from circuit court, Cape Girardeau County, Lipke, J. (Lisa M. Stroupe, for appellant) (Julia E. Rives, for respondent)

https://www.courts.mo.gov/file.jsp?id=1917566

Domestic Relations

Divorce Consent Judgement

Division of Marital Assets

Defendant moved to set aside an order nunc pro tunc in which the trial court purported to correct the parties’ consent judgment by granting plaintiff the entirety of defendant’s pension, instead of half the pension as ordered by the consent judgment.

Although the trial court improperly entered the order as it substantially modified the judgment, rather than simply correcting a clerical error, defendant was not entitled to relief as his motion to set aside was not filed within a reasonable time.

Judgment is affirmed.

Kalish v. Kalish (MLW No. 79338/Case No. ED110301 – 6 pages) (Missouri Court of Appeals, Eastern District, Dowd, J.) Appealed from circuit court, St. Charles County, Burlison, J. (James J. Leightner, for appellant) (Kathryn B. Borzillo and Jane E. Tomich, for respondent)

https://www.courts.mo.gov/file.jsp?id=1917555

Real Property

Residential Subdivision

Developer Rights

Plaintiffs, a group of 21 homeowners in the Birch Creek Estate subdivision, appealed the entry of summary judgment for defendant, which declared that defendant held developer rights in Birch Creek and that plaintiffs lacked standing. Plaintiffs challenged various aspects of the trial court’s order, including its finding that plaintiffs lacked standing. Defendant also cross-appealed the denial of its motion for counsel fees.

Where plaintiffs were not parties to or third-party beneficiaries of the deeds giving rise to defendant’s rights, the trial court correctly concluded that they lacked standing to seek declaratory judgment as they had no legally cognizable interest.

Judgment is affirmed.

Ruff v. Bequette Construction (MLW No. 79339/Case No. ED110182 – 23 pages) (Missouri Court of Appeals, Eastern District, Broniec, J.) Appealed from circuit court, Franklin County, Brehe-Krueger, J. (Matthew A. Jacober and Lauren M. Wacker, for appellant) (Robert A. Zick, Sean D. Brinker, and Jonathan C. Browning, for respondent)

https://www.courts.mo.gov/file.jsp?id=1917544