Missouri Court of Appeals Eastern District Case Summaries: October 27, 2011 [Missouri Lawyers Media]

Civil Practice Default JudgmentSet AsidePersonal Jurisdiction Where a trial court lacked personal jurisdiction over an insurer- defendant when it entered a default judgment against the insurer, the judgment was void, so the court did not err in setting aside the default judgment and in denying the plaintiff's motion to revive. Judgment is affirmed.Maddox, et al. v. State Automobile Mutual Insurance Company (MLW No. 62899/Case No. ED96220 - 6 pages) (Missouri Court of Appeals, Eastern District, Romines, J.) Appealed from circuit court, Montgomery County, Sutherland, J. (Irwin M. Roitman for appellant) (James A. Harfst for respondent).

Criminal LawChange Of JudgeTimeliness Designation Of JudgeWhere a defendant in a murder case argued that the trial court erred in denying his motion for a change of judge, arguing that the judge was not "designated" until she set the case for trial, the designation of the judge occurred when she was assigned the case by the presiding judge, so the defendant's motion was properly denied as untimely.Judgment is affirmed. State v. Ford (MLW No. 62902/Case No. ED95804 - 7 pages) (Missouri Court of Appeals, Eastern District, Gaertner, J.) Appealed from circuit court, St. Louis County, Dolan, J. (Craig A. Johnston for appellant) (Chris Koster and Robert J. (Jeff) Bartholomew for respondent).

Criminal LawPost-Conviction ReliefPro Se Motion Failure To FileWhere a defendant appealed the denial of his motion for post- conviction relief, the pro se motion was untimely, so the motion should be vacated and remanded with directions to dismiss. Judgment vacated; remanded.Manuel v. State (MLW No. 62907/Case No. ED95912 - 4 pages) (Missouri Court of Appeals, Eastern District, Knaup Crane, J.) Appealed from circuit court, St. Louis County, Bresnahan, J. (Jessica M. Hathaway for appellant) (Chris Koster and John M. Reeves for respondent).

Criminal LawPost-Conviction ReliefTimeliness Where a defendant failed to file his Rule 24.035 motion for post-conviction relief within 180 days of his delivery to the Department of Corrections, the motion court did not have authority to consider the motion. Judgment vacated; remanded.Redmond v. State (MLW No. 62903/Case No. ED95473 - 5 pages) (Missouri Court of Appeals, Eastern District, Cohen, J.) Appealed from circuit court, St. Charles County, Rauch, J. (Robert W. Lundt for appellant) (Chris Koster and John W. Grantham for respondent).

Criminal LawPrior Bad ActsVoir DirePersistent Offender Even though a trial court improperly allowed a defendant's girlfriend to be asked about a false report she made that he raped her, the error was harmless in light of the overwhelming evidence in the case, and defendant's challenge to information disclosed at voir dire was not preserved or justified by extraordinary circumstances, but the state conceded error in the designation of the defendant as a persistent offender, so the judgment is corrected by deleting that information. Judgment is affirmed as modified.State v. Adams (MLW No. 62901/Case No. ED95976 - 6 pages) (Missouri Court of Appeals, Eastern District, Knaup Crane, J.) Appealed from circuit court, St. Louis City, Bush, J. (Chris Koster and Timothy A. Blackwell for respondent) (N. Scott Rosenblum and Erin R. Griebel for appellant).

Domestic RelationsPrenuptial AgreementMarital Property Liquidating Distributions (1)Where the bargaining positions of a husband and wife at the time they made a prenuptial agreement before entering their 30-year marriage were relatively equal in terms of age, sophistication, education, employment and experience, the trial court's determination that the prenuptial agreement was conscionable and fairly made was supported by the evidence, and the court properly determined and gave effect to what it found to be the intent of the parties in holding that the agreement did not contain specific language that excluded the income from wife's separate assets from marital property.(2)Where a wife in a dissolution owned a 3 percent interest in a corporation and received $5.2 million in liquidating distributions from the dissolved corporation, the amount was from the liquidation of the corporation's assets disbursed to the wife in exchange for and cancellation of her separate stock interest, so the distributions should properly be classified as the wife's separate property and the case must be remanded for the court to reconsider the wife's expert's testimony about tracing the funds and to redistribute marital property if necessary. Judgment is affirmed in part; reversed in part; remanded.Short v. Short (MLW No. 62893/Case No. ED95663 - 23 pages) (Missouri Court of Appeals, Eastern District, Sullivan, J.) Appealed from circuit court, St. Louis County, Essner, J. (Samuel J. Hais and Amarilis L. Dennis for appellant) (Jerome F. Raskas and Peter H. Love for respondent).

Driver's LicenseDWIReinstatement Breath TestWhere a trial court excluded breath test results in a DWI case based on an order to transfer authority between state agencies, the order was never implemented and the court erroneously applied the law to exclude the test results, so the reinstatement of the driver's license is reversed. Judgment is reversed and remanded.Scheumbauer v. Director (MLW No. 62900/Case No. ED96036 - 5 pages) (Missouri Court of Appeals, Eastern District, Clayton III, J.) Appealed from circuit court, St. Louis County, Clifford, J. (Trevor S. Bossert for appellant) (John A. Bouhasin for respondent).

JuvenileStealingSufficiency Of EvidenceWhere a stealing victim testified that he saw the juvenile defendant standing in front of the victim's mother's car inspecting it after it had disappeared from in front of victim's house, and the defendant ran when confronted, the state presented sufficient evidence, even though much of the evidence was circumstantial, to prove that the defendant committed the offense of stealing.Judgment is affirmed. In the Interest of: T.B. (MLW No. 62904/Case No. ED96283 - 5 pages) (Missouri Court of Appeals, Eastern District, Romines, J.) Appealed from circuit court, St. Louis City, Edwards, J. (Patricia Harrison and Brocca Smith for appellant) (Margaret E. Gangle-Casinger and Glenn Hunt for respondent).

Municipal Civil Ordinance Red Light Violation Due Process Where a car owner challenged a municipal ordinance, which provided for the issuance of tickets to vehicle owners when an automated camera photographed a red light violation, the language of the ordinance showed that the city intended for the ordinance to be a civil ordinance, and the ordinance was properly enacted pursuant to the city's police power for regulating public safety, and did not violate state law, and liability for a violation was predicated on the car owner's status as owner regardless of whether she was driving the car, so the trial court properly denied her motion to dismiss. Judgment is affirmed. City of Creve Coeur v. Nottebrok (MLW No. 62894/Case No. ED96396 - 14 pages) (Missouri Court of Appeals, Eastern District, per curiam) Appealed from circuit court, St. Louis County, Ott, J. (W. Bevis Schock and Hugh Athelstan Eastwood for appellant) (Carl James Lumley and Dennis Lee Beckley for respondent).

ProbateChild CustodyAdoption Habeas ProceedingWhere an appellant appealed from the final order of the probate court's dismissal of her petition for the appointment of guardianship of a minor and vacating her writ of habeas corpus, a prior court order determined the legal custody of a minor, so the appellant could not appeal the probate court's decision in her habeas corpus proceeding.Judgment is affirmed in part; dismissed in part.In the Matter of the Estate of R.M. (MLW No. 62906/Case No. ED95675 - 4 pages) (Missouri Court of Appeals, Eastern District, per curiam) Appealed from circuit court, Jefferson County, Dickhaner, J. (Kristin K. Zurek and Cherlyn M. Crosby for appellant) (Catherine Keefe, Jayne Glaser and Benicia Baker-Livorsi for respondent).

Real Property Prescriptive Easement EvidenceExtinguished Where landowners testified that a roadway to landlocked property "was always there" and remained open despite changes to the surrounding property, there was competent and substantial evidence for a trial court to find that a prescriptive easement existed for ingress and egress by both pedestrians and vehicles, and the plaintiffs did not show that the easement was extinguished by a merger of the dominant and servient estates because there was never complete unity of title.Judgment is affirmed.Maune, et al. v. Beste, et al. (MLW No. 62898/Case No. ED96177 - 8 pages) (Missouri Court of Appeals, Eastern District, Ahrens, P.J.) Appealed from circuit court, Franklin County, Tobben, J. (Frank K. Carlson for appellant) (Jonathan L. Downard for respondent).

Unemployment Compensation Denial Of BenefitsMisconductEarly Departure Where a cook, who was fired for leaving work early, was denied unemployment compensation benefits on the basis of misconduct, the denial is reversed because the record showed that the cook obtained the permission of her supervisor before leaving, so there was no showing that the departure was an act of willful disregard for the employer's rules.Judgment is reversed and remanded.Brinker v. N & R of Jonesburg, Inc. (MLW No. 62905/Case No. ED96186 - 5 pages) (Missouri Court of Appeals, Eastern District, Richter, J.) Appealed from the Labor and Industrial Relations Commission (Michael R. Hanson for appellant) (Michael Eugene Cook Pritchett for respondent).

Unemployment Compensation Denial Of BenefitsMisconductIncident Report PolicyWhere a nursing home caregiver, who was fired after she failed to make an incident report after a resident fell, was disqualified from receiving unemployment compensation benefits based on misconduct, the denial is reversed because the record did not resolve the essential issues of whether a report was required and whether the caregiver knew that it was required, so there could be no finding that the caregiver willfully violated the employer's policy.Judgment is reversed and remanded.Bolden v. Cura, Inc. (MLW No. 62897/Case No. ED96276 - 7 pages) (Missouri Court of Appeals, Eastern District, Richter, J.) Appealed from the Labor and Industrial Relations Commission (Martin L. Perron and Maria V. Perron for appellant) (Shelly A. Kintzel for respondent).

Unemployment Compensation Denial Of BenefitsMisconductSleepingWhere an employee, who was fired for sleeping on the job, was disqualified from receiving unemployment compensation benefits based on misconduct, the appellate court is bound by the commission's determination that the employer's witness was more credible than the employee, and the commission did not err in finding that sleeping on the job constitutes misconduct. Judgment is affirmed. Nickless v. Saint Gobain Containers, Inc. (MLW No. 62908/Case No. ED96149 - 4 pages) (Missouri Court of Appeals, Eastern District, Romines, J.) Appealed from the Labor and Industrial Relations Commission (Meagan E. Breeze for appellant) (Bart A. Matanic and Michael Eugene Cook Pritchett and Dennis Donnelly, Jeffery Martin Mallamad and Carolyn Clay Hall for respondents).

Unemployment Compensation Notice Of AppealTimelinessWhere a claimant of unemployment compensation benefits failed to file his notice of appeal within 20 days of the date that the commission's decision became final, the notice was untimely and the appeal must be dismissed. Appeal is dismissed. Wickis v. FBCMO, LLC (MLW No. 62909/Case No. ED97139 - 2 pages) (Missouri Court of Appeals, Eastern District, Odenwald, J.) Appealed from the Labor and Industrial Relations Commission (Tom Wickis, pro se) (Michael Cook Pritchett, Division of Employment Security and FBCMO, LLC, pro se).

Workers' Compensation Personal Comfort Doctrine'Arose Out Of'Work Comp AmendmentWhere a hospital billing representative was injured when she slipped off her sandal and fell to the floor while making coffee in the kitchen of her office, the injury did not occur because she fell due to a condition of her employment, and the court finds that the commission's reliance on the personal comfort doctrine was inappropriate because it does not comply with the strict construction mandated by the 2005 amendments to the law, so the court would reversed and remand the award of benefits, but the case is transferred to the Missouri Supreme Court due to its general interest and importance.

'Cramped interpretation' Opinion concurring in result by Mooney, J.: "I concur in the decision to transfer, but not in the majority's opinion."I agree that the record here is thin, but I would affirm the Commission. The majority opines that the only risk to the worker here was performing normal kitchen-related activities, but neglects to mention that the worker was apparently emptying the grinds from a large commercial coffeemaker...Applying strict construction, the worker was thus not equally exposed to the risk of injury...."More importantly, I cannot agree with the majority's cramped interpretation of the 2005 amendments to our workers' compensation statutes. First, the fact that the amendments raised the bar on compensability does nothing to answer how high the bar has been raised. Moreover, the failure to mention the personal-comfort doctrine in the abrogating statute of the 2005 amendments is as meaningful as the failure of the legislature to endorse the personal- comfort doctrine."Transferred. Johme v. St. John's Mercy Healthcare (MLW No. 62896/Case No. ED96497 - 10 pages) (Missouri Court of Appeals, Eastern District, Romines, J.) Appealed from the Labor and Industrial Relations Commission (Maurice D. Early for appellant) (Ellen E. Morgan for respondent).