Headings and Summaries prepared by The Missouri Bar

Administrative

Unpublished Regulation No Good
Statute requires regulations to set forth procedure.  Procedural regulation allowed dismissal for failure to “appear,” defined as providing a phone number.  Amendment published after agency action does not support that action.  “The neglect to comply with these [promulgation] procedures deprives a regulation of validity.”  Labor and Industrial Relations Commission had no power to affirm an Appeals Tribunal’s dismissal of claimant for failure to appear based on amendment.
Diane Jackson-Mughal vs. Division of Employment Security 
(Overview Summary)
Missouri Court of Appeals, Western District – WD73818

Appellate

Statutes Provide Direct Appeal
Associate division denied motion to set aside default judgment.  On appeal from associate division to circuit court, circuit court dismissed.  Appeal of circuit court’s judgment cannot include review of associate division’s judgment.  Associate division’s judgment is subject to appeal at Court of Appeals.
Ground Freight Expeditors, LLC vs. Judy C. Binder and Gerard F. Binder
(Overview Summary)
Missouri Court of Appeals, Western District – WD73678

Dismissal Presumed Without Prejudice
Rule states that judgment of dismissal is without prejudice unless otherwise provided.  Judgment did not state otherwise, so it is without prejudice.  Such judgment is not subject to appeal and is dismissed.
MARY ANN JENNINGS, Plaintiff-Appellant vs. THE BOARD OF CURATORS OF MISSOURI STATE UNIVERSITY, Defendant-Respondent
Missouri Court of Appeals, Southern District – SD31218

Criminal

Low IQ Not Mental Disease or Defect
Mental disease or defect may support an instruction on diminished capacity, which negates the element of culpable mental state, but only if requested.  Mental disease or defect may also support an instruction on affirmative defense of no responsibility, based on inability to understand wrongfulness of conduct.  Evidence is not interchangeable between the two.  Evidence that appellant did not understand wrongful nature of actions does not negate first‑degree assault’s mental state.  To negate mental state, evidence must show that mental condition prevented defendant from knowing consequences of his conduct.  Evidence of low IQ does not support an instruction on mental disease or defect.  Circuit court correctly refused instruction with mandatory terms left blank.
STATE OF MISSOURI, Plaintiff-Respondent vs. MICHAEL S. KNIGHT, Defendant-Appellant
Missouri Court of Appeals, Southern District – SD31155

Remand to Determine Whether Statement Was Voluntary 
Court of Appeals will not review objection raised first on appeal.  Answering machine recording of crime while it happened constituted res gestae exception to hearsay rule.  On objection to use of statement for impeachment, on grounds that statement was involuntary, circuit court must determine whether statement was voluntary.  Remanded for that determination.
State of Missouri, Respondent, v. Kenneth Smoot, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED95499

Evidence Was Insufficient
State did not show time between when defendant walked by house, someone broke into house, and defendant was found two blocks away.  Charging instrument specified breaking into house, so Court of Appeals cannot enter judgment on cutting through yard.  Reversed and remanded for discharge.
State of Missouri, Respondent, v. John Smith, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED96004

Employment Security

Cutting Off Pay Was Firing
Employer’s “unilateral decision to withhold Claimant’s . . . paycheck just two days before it was to be paid” constituted employer’s decision to end employment relationship, which was unaltered by meeting on payday.
Robert Wood, Appellant, vs. Kuhlmann Supply Company, Inc., and Division of Employment Security, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED96694

No Late Application for Review
Labor and Industrial Relations Commission’s authority to decide application is conditioned on timely filing of application for review, so Commission acted in excess of authority on late application, and Court of Appeals remands to reinstate decision of Appeals Tribunal.
Pamela J. Foster and William D. Foster vs. Division of Employment Security
(Overview Summary)
Missouri Court of Appeals, Western District – WD73826 and WD73827

Insurance

Owned-Vehicle Exclusions Examined
“Because there are no statutory requirements for [underinsured motorist] coverage in Missouri, the existence of such coverage is determined by the contract between the insured and the insurer.”  As used in owned-vehicle exclusion, “person” and “insured person” are not ambiguous, and owner is not limited to one who holds certificate of title.  Residence in household depends on whether “living arrangement is permanent or temporary and whether the household functions as a family unit” and credibility matters on that issue preclude summary judgment.
Nathaniel James Manner, Appellant, v. Nicholas Brian Shiermeier, Con-Tech Foundations, LLC, Helmet City, Inc., and Jafrum International, Inc., Defendants, American Family Mutual Insurance Company, and American Standard Insurance Company, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED96143

Juvenile

Competence not Required for Status Proceeding
Juvenile status offense is civil proceeding so, even if the matter could be charged as delinquency or criminal offense, competency of accused is irrelevant  and standard of proof is clear and convincing evidence.  Juvenile in custody has the right to Miranda warnings.  Statutes allow  for information gathering before taking juvenile to court.
In the interest of: A.G.R. Juvenile Officer vs. A.G.R.
(Overview Summary)
Missouri Court of Appeals, Western District – WD73007

Personal Injury

Intervention Is a Right in Wrongful Death
Statute provides action for wrongful death and defines who has right to bring it first.  Any such person may join as a matter of right under rule on intervention.
Kevin Martin, D.O., Natural Guardian and Conservator for Blake Martin, Respondent, v. August A. Busch IV, Respondent, v. Larry Eby and Christine Trampler, Appellants.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED96814

Post-Conviction

Self-Defense Against Law Enforcement
Self-defense allows use of force when reasonably believed necessary against unlawful use of force.  Unlawful use of force does not include flushing escaped convicts from hide-out so, on charge of assaulting law enforcement officers in the first degree, circuit court correctly refused self-defense instruction, and appellate counsel was not ineffective for deciding not to appeal that ruling.  Record did not support submission of assaulting law enforcement officers in the second degree as a lesser included offense because it did not show intent other than causing serious physical harm.  
Donnie L. Fisher vs. State of Missouri

(Overview Summary)
Missouri Court of Appeals, Western District – WD73269