James Edward Welsh

Nick Savage sued Kansas City Power & Light after a storm-damaged tree limb pulled down a live service drop line on his property, claiming the utility was negligent in how its linemen handled the downed line and subsequent repairs. A jury found KCP&L zero percent at fault and Savage 100 percent at fault. The Missouri Court of Appeals affirmed the defense verdict. It held that the verdict-directing instruction was complete and independent, directing the jury to find for Savage if he proved his claim “whether or not” he was partly at fault, and that the verdict form separately required the jury to assess percentages totaling zero or 100 percent. Because the jury expressly assigned zero fault to KCP&L, any alleged error in the comparative-fault instruction could not have prejudiced Savage.

torts & liabilityprocedure

In State of Missouri v. Keith A. Coday, the defendant appealed his conviction for driving while intoxicated after a bench trial, specifically challenging the circuit court's finding that he qualified as a persistent DWI offender based on two prior Kansas convictions for driving under the influence. The court had sentenced him as a persistent offender to four years in prison (suspended with probation), relying on certified records from Wyandotte County, Kansas, showing guilty pleas in 1991 under Kan. Stat. Ann. § 8-1567. On appeal, Coday argued the evidence was insufficient to prove the Kansas offenses met Missouri's definition of intoxication-related traffic offenses under section 577.023, as the records did not establish that he had operated a vehicle during those incidents. The Missouri Court of Appeals agreed, holding that the State failed to prove beyond a reasonable doubt the necessary elements of the prior offenses, and reversed the persistent offender finding while remanding for resentencing on the class B misdemeanor DWI charge.

criminal lawprocedure

The case involved a wrongful death lawsuit brought by Orson Wolf against Midwest Nephrology Consultants after his half-brother, Carl Brooks, fell and fractured his hip while unattended following a sedated fistulagram procedure in 2008. Brooks developed pressure ulcers, malnutrition, infections, and other complications over the following months, leading to his death in 2009; Wolf claimed the initial fall resulted from the clinic's negligence. A jury awarded Wolf $459,429.02 in past economic damages but nothing for Brooks's pain and suffering, prompting Wolf to appeal the denial of a new trial and Midwest to cross-appeal the denial of judgment notwithstanding the verdict and an alternative new-trial motion. The Missouri Court of Appeals affirmed the circuit court's judgment, holding that the trial court did not abuse its discretion in denying a new trial on noneconomic damages and that Midwest had failed to preserve its claims for appellate review by not properly raising them in post-trial motions, while also dismissing its multifarious second point on appeal.

torts & liabilityhealthcareprocedure

The case arose after an employee filed discrimination and retaliation charges with the Missouri Commission on Human Rights against her former employer, Tivol Plaza, Inc. The Commission issued a right-to-sue notice more than 180 days later without first determining whether any claims were untimely, prompting Tivol to petition the circuit court for a writ of mandamus to compel such a determination. The circuit court issued summonses rather than a preliminary writ order and then dismissed the petition. On appeal, the Missouri Court of Appeals held that it lacked authority to review the dismissal because, when a lower court denies a writ petition without issuing a preliminary order, the proper remedy is to seek the writ directly from a higher court. The court therefore dismissed Tivol’s appeal.

civil rightslabor & employmentprocedure

The Fastnachts appealed a Cass County circuit court judgment that reformed the legal descriptions in four 2001 deeds of trust they executed to secure refinance loans on attached townhomes, as well as the descriptions in later deeds transferring three of the properties to Teng Ge and Yahtzen Gu after foreclosure. The descriptions, prepared from erroneous surveys, covered only the interior walls of each unit and omitted surrounding land needed for access, driveways, and appurtenances, even though the loan documents repeatedly identified the collateral by street address and the Fastnachts had agreed to correct documentation errors. The Missouri Court of Appeals affirmed, holding that reformation was proper to conform the deeds to the parties’ original intent that the properties be conveyed with necessary access and appurtenances.

property

In this case, Robert Hurst sued Nissan North America on behalf of a class of Missouri owners of 2003–2008 Infiniti FX vehicles under the Missouri Merchandising Practices Act, alleging that advertising and warranty statements about the vehicles created an actionable misrepresentation when dashboards later developed a bubbling defect. After the trial court certified the class and a jury awarded $2,000 in damages to each of 326 qualifying class members plus attorney fees, Nissan appealed the denial of its motions for judgment notwithstanding the verdict, new trial, and decertification. The Missouri Court of Appeals reversed the judgment and remanded for entry of JNOV in Nissan's favor. It held that the statements Hurst relied on were non-actionable puffery or opinion rather than specific, measurable assertions of fact that could be proven false, and therefore could not support an MMPA claim; as a result, the plaintiffs were no longer prevailing parties entitled to attorney fees.

business & regulatory

The case involved David Nicol's appeal from a circuit court judgment dissolving his marriage to Ellen Nicol, in which he raised eight points of alleged error. The Missouri Court of Appeals dismissed the appeal without reaching the merits. The court held that Nicol, appearing pro se, had failed to comply with the mandatory requirements of Rule 84.04 governing appellate briefs, despite being given an opportunity to correct the deficiencies. His statement of facts was inadequate and lacked necessary context and page references, his points relied on did not properly identify the challenged rulings or legal reasons for reversal, and his argument sections contained no meaningful legal analysis, citations to authority, or application of the correct standard of review. These violations left the court unable to conduct a competent review.

family lawprocedure

In this case, Ameren Missouri sued A.P. Read Homes for damaging one of its underground utility lines on property Read Homes owned and developed in Kirksville, alleging that Read Homes failed to notify utility operators before excavating or to dig carefully, in violation of the Underground Facility Safety and Damages Prevention Act. Following a bench trial, the circuit court entered judgment against Read Homes for $1,897.59 in repair costs on the relevant count. The Missouri Court of Appeals affirmed, holding that the evidence—including photographs of excavation equipment near the exposed line and Read Homes’ own testimony about its trenching work—supported a finding of liability under the Act’s rebuttable presumption of negligence, and that the trial court did not abuse its discretion in denying Read Homes’ post-trial request to introduce additional evidence it could have presented earlier.

business & regulatorytorts & liabilitypropertyprocedure

The City of Kansas City sued Kevin Garnett to collect $392.60 in unpaid 2010 city earnings taxes, plus penalties and interest under its ordinances, after determining he was a resident based on his use of a local address for taxes and federal requirements. At trial, the circuit court found Garnett liable for the principal tax amount but declined to award penalties or interest, concluding his nonpayment was not wanton or unreasonable. On appeal, the Missouri Court of Appeals affirmed the denial of penalties, holding that Section 68-395(8) of the city code expressly permits waiver when nonpayment results from reasonable cause. It reversed the denial of interest, however, because Section 68-394 mandates interest on unpaid taxes with no provision for discretionary waiver. The court remanded the case for entry of judgment including interest only.

taxes

H. David Roy sued MBW Construction and its president after purchasing a newly built home, claiming breach of implied warranty of habitability, fraudulent concealment, unlawful merchandising practices, and related damages based on alleged construction defects in the roof and garage. The case followed an earlier Clay County lawsuit in which Roy had litigated overlapping claims arising from the same 2008-2009 home purchase contract and obtained partial relief, but was denied post-trial relief and an appeal on additional roof and garage issues. The Missouri Court of Appeals affirmed summary judgment for MBW, holding that res judicata barred the new claims because they arose from the same transaction and could have been raised with reasonable diligence in the prior action. The court noted that Roy had already sought identical relief through post-trial motions in the Clay County case, which were denied, making the Platte County claims an impermissible attempt to relitigate the same facts.

propertyproceduretorts & liabilitybusiness & regulatory

Lester M. Dean sued Richard W. Noble and related parties for fraud, constructive trust, and conspiracy, alleging that Noble had agreed in 1996 to temporarily hold 60% of Dean’s partnership interests in Royal Main Partners, LP, until a lawsuit with Dean’s creditor was resolved, but then refused to return them under a 1999 Transfer Agreement, disbursed partnership funds without consent, and caused Dean to lose his remaining interests in a 2008 IRS sale. The circuit court dismissed the petition, and the Missouri Court of Appeals affirmed. The court held that the claims were barred by the statute of limitations because Dean’s own allegations showed he was aware of the facts underlying his fraud claim no later than February 2007, when Noble refused to honor the Transfer Agreement and demanded payment, and possibly earlier upon receiving K-1 tax forms and IRS deficiency notices. Because the underlying fraud claim was untimely, the dependent claims for constructive trust and conspiracy were also properly dismissed.

business & regulatorypropertyproceduretorts & liability

The case concerned Michael Gene Gunn's appeal from the dismissal of his Rule 29.15 motion for post-conviction relief, which the circuit court had rejected as untimely because it was filed 266 days after the mandate issued in his direct appeal of convictions for second-degree murder, first-degree robbery, and armed criminal action. Gunn argued that the late filing should be excused under the "third-party interference" exception, claiming his direct-appeal counsel had promised to notify him when the mandate issued but failed to do so, leaving him unaware of the 90-day filing deadline. The Missouri Court of Appeals affirmed the dismissal, holding that appellate counsel has no duty to inform a defendant of the mandate's issuance or of post-conviction filing rights. The court reasoned that Gunn's mere reliance on counsel, without taking any independent steps to meet or calculate the deadline, did not qualify as active third-party interference under Missouri Supreme Court precedent in Price v. State, and therefore the motion remained untimely.

criminal lawprocedure

In State of Missouri v. James Calvin Smith, the defendant was convicted by a jury of one count of first-degree burglary, three counts of second-degree burglary, and two counts of felony stealing arising from multiple business break-ins in Sedalia, based on DNA and shoeprint evidence. On appeal, Smith argued that the trial court erred by refusing his requests to instruct the jury on the lesser-included offenses of first-degree trespass for four of the burglary counts and misdemeanor stealing for the two felony stealing counts. The Missouri Court of Appeals reversed the convictions on those six counts and remanded for further proceedings, holding that section 556.046 requires a lesser-included instruction when supported by the evidence and requested, that the trial court's refusal constituted reversible error creating a presumption of prejudice, and that the State had conceded error on the stealing counts. The ruling left Smith's other convictions, including for second-degree property damage and resisting arrest, unaffected.

criminal lawprocedure

The Missouri Court of Appeals case concerned the State Board of Nursing's revocation of registered nurse Jeannie Owens's license after she pled guilty in 2011 to a class B misdemeanor of driving while intoxicated involving drug intoxication. The Board acted under section 335.066.16, asserting the offense involved moral turpitude or was reasonably related to nursing qualifications and duties, and also noted Owens's failure to report the plea on her license renewals; the circuit court reversed the revocation, and the Board appealed. The appeals court reviewed the agency's decision directly and affirmed the circuit court's judgment reversing the revocation order. It held that the guilty plea did not meet the statutory criteria for discipline under the cited provisions, that the Board had not based its action on the reporting failure, and that the Board could not use the specified procedure to bypass the administrative hearing commission in classifying the offense.

healthcarecriminal lawprocedure

Karen L. Fay appealed a circuit court judgment rejecting her petition to disapprove Lloyd Grafton's revocation and modification of The Grafton Family Trust, an irrevocable trust created in 2003 by Lloyd and his late wife Dorothy that held shares in two family farming corporations. Fay claimed Lloyd improperly acted without all beneficiaries' consent, breached trustee duties of loyalty and disclosure, ignored the ascertainable-standard requirement for distributions under section 456.8-814, and should lose benefits under the trust's no-contest clause. The Missouri Court of Appeals affirmed the judgment, concluding that the trust expressly authorized the settlor-trustee to distribute principal to himself in his discretion, that the no-contest clause did not apply to actions by a settlor, and that the trust was never effectively revoked or modified and remained in its original form.

family lawpropertyprocedure

The Missouri Court of Appeals case concerned whether Thomas Edward Dillow was entitled to abatement of approximately $93,000 in child support arrearages that had accrued under a 1996 paternity and support order, which he claimed he did not know about until his 2001 arrest, and for which he had served prison time for nonsupport. The circuit court granted Dillow's motion to abate the arrearages, but the appeals court reversed that judgment and remanded for entry of a new order denying abatement. The court held that incarceration for nonsupport does not relieve a parent of the underlying obligation to support the child, that the original order remained valid because Dillow never sought to set it aside despite proper service, and that no statutory requirements for abatement under section 452.340 were met, as the arrearages stemmed from Dillow's own failure to pay rather than any qualifying circumstances.

family law

Frederick Winingear sought permanent partial disability benefits from Missouri's Second Injury Fund, claiming that his 2011 work-related neck injury combined with preexisting disabilities from earlier workplace incidents (including a 2010 shoulder and chest injury) to produce a greater overall disability. The Labor and Industrial Relations Commission denied the claim, finding that Winingear had qualifying preexisting disabilities and a 4% primary injury but that the evidence failed to show the required synergy between them. The Missouri Court of Appeals affirmed, holding that the Commission acted within its discretion in deeming Winingear's testimony and Dr. Cohen's opinion unconvincing on the synergy issue, which was dispositive, and that other questions such as timeliness were therefore moot.

labor & employment

James Pittman sued his former employer, Cook Paper Recycling Corporation, alleging that he faced harassment and was terminated because he is homosexual, creating a hostile work environment based on sexual preference in violation of the Missouri Human Rights Act. The circuit court dismissed the claim for failure to state a cause of action, and the Missouri Court of Appeals affirmed. The court held that the MHRA prohibits discrimination on the basis of sex but does not cover sexual orientation, which is not a protected class under the statute. It rejected arguments to interpret the claims as sex discrimination or sexual stereotyping, concluding that recognizing such claims would require creating a new cause of action beyond the existing law.

labor & employmentcivil rights

Devin Woods, a middle-school wrestler, sued coach Carl Ware for negligence after he was injured during a combined middle- and high-school wrestling practice when he was matched against a larger, more experienced high-school wrestler; Ware was the sole adult supervisor present. The circuit court granted summary judgment to Ware, and the Missouri Court of Appeals affirmed. The court held that Ware’s decisions about how to organize and supervise the practice were discretionary acts protected by official immunity. It reasoned that neither the school district’s general policies on student supervision nor MSHSAA Bylaw 301, which addresses team eligibility for practices, imposed a specific, ministerial duty on the coach regarding the manner of conducting the drill or the matching of participants, and therefore did not remove the protection of official immunity.

torts & liabilityprocedure

Alyssa Bustamante, who was 15 at the time, pleaded guilty in adult court to second-degree murder and armed criminal action for strangling and stabbing a 9-year-old girl to death in 2009, after the juvenile court certified her for adult prosecution. She later filed a Rule 24.035 motion seeking to set aside her plea and sentence, claiming her plea counsel was ineffective for failing to challenge the juvenile certification and that Missouri’s first-degree murder statute was unconstitutional as applied to juveniles under Miller v. Alabama. The circuit court denied the motion after an evidentiary hearing, and the Missouri Court of Appeals affirmed. The appeals court held that Bustamante abandoned her ineffective-assistance claim by presenting no supporting evidence at the hearing and that her guilty plea waived any such claim absent a showing it affected the plea’s voluntariness. It further concluded that her constitutional challenge was foreclosed by prior Missouri Supreme Court precedent.

criminal lawprocedure