The Missouri Court of Appeals, Western District, will convene court at the School of Law on Thurs., April 3, 2014.
A three-judge panel consisting of Thomas Newton; Mark Pfeiffer, ’92; and Cynthia Martin will hear oral arguments at Hulston Hall in four cases beginning at 9:30 am.
Chief Judge James Welsh explained that the cases are appeals from previously held trials in area circuit courts. The judges will hear attorneys argue whether the trials had errors, which should cause them to be retried, or the trial court’s judgment reversed, he said. The judges will read written arguments before the court session and may interrupt the attorneys’ arguments with questions.
The three judges will recess sometime in between arguments to step down and discuss the court system and generally explain proceedings.
The School of Law has become a regular stop for the Western District when it convenes court away from its headquarters in Kansas City. The court has jurisdiction over appeals from trial courts in 45 counties which include all of northwest Missouri and most of central Missouri.
During the past twenty-two years, the Court has held sessions in Chillicothe, Clinton, Columbia, Fulton, Gallatin, Huntsville, Independence, Jefferson City, Keytesville, Kirksville, Lexington, Liberty, Linneus, Macon, Marshall, Maryville, Milan, Nevada, Platte City, Richmond, St. Joseph, Savannah, Trenton, Tuscumbia and Warrensburg.
“It is important for the Court to convene oral arguments outside of Kansas City,” Newton says. “This gives individuals an opportunity to observe a part of the judicial system they normally do not see. We hope those attending will gain a better understanding of the court’s function.”
Case Summaries & Briefs
WD76086 -Ray Charles Bate, and Deborah Sue Bates, Appellants vs. Greenwich Insurance Company, Respondent
In March of 2008, Charles and Deborah Bate (Appellants) were injured in a motor vehicle accident when the automobile Rocky Wells was driving crossed the center line of Route Y in Boone County and hit their vehicle. Appellants filed a petition against Cintas Corporation (Charles Bate’s employer) and Cambridge Integrated Insurance (the insurance administrator for Cintas). They later amended their petition to include Greenwich Insurance Company, seeking underinsured motorist benefits. The first amended petition identified service to Greenwich Insurance Company, a Delaware corporation, through Douglas M. Ommen, Missouri Department of Insurance, Truman Building, 301 West High St., Room 63, Jefferson City, MO 65101. The summons to Greenwich was issued on August 25, 2009. An original copy of the sheriff’s return was filed with the court on September 18, 2009. In March of 2010, the trial court conducted a hearing and entered a default judgment against Greenwich (Cintas and Cambridge had been dismissed earlier) for $2,000.000.00 in favor of Charles Bate and $1,000,000.00 in favor of Deborah Bate. Greenwich filed a motion to set aside the default judgment, arguing that the default judgment was void, among other things, because the trial court lacked personal jurisdiction over Greenwich in that service and proof of service were insufficient. After a hearing on the motion to set aside, the trial court entered a judgment setting aside the $3,000,000.00 default judgment entered against Greenwich, finding that there was no valid service of process, and therefore, no personal jurisdiction.
Appellant argues on appeal:
The trial court erred in setting aside the default judgment because the judgment was not void as the court had personal and subject matter jurisdiction and did not act in a manner inconsistent with due process of law in that: 1) the Bates proved proper service upon Greenwich, a foreign insurance company, pursuant to §375.906 RSMo, a method of service permitted by Rule 54.18; 2) the court had subject matter jurisdiction to enter the default judgment against Greenwich in the civil action seeking underinsured motorist benefits; and, 3) the court did not act in a manner inconsistent with due process of law when entering the default judgment as Greenwich had been properly served with notice of the action and failed to timely respond.
WD76284 – Ndeye Marieme Ndiaye, Respondent vs. Cheikh Ibra Seye, Appellant
Ndeye Ndiaye, Respondent, and Cheikh Seye, Appellant, were divorced in 2008. The parties had two children. At the time of the dissolution, the court order the parties to share joint legal and joint physical custody of the children. In 2009, Appellant filed a motion to modify, requesting to relocate the children’s residence to Indiana. The trial court entered a judgment modifying the child support amount, but found that the move to Indiana would not be in the best interests of the children. Appellant filed a motion to modify child custody in July of 2010. In August of 2010, Respondent filed a counter motion to modify child custody. Appellant’s motion to modify was denied. Respondent’s counter motion to modify was sustained. The parties were awarded joint legal and physical custody of the children and the child support amount was modified.
Appellant argues on appeal:
- The trial court erred in awarding custody pursuant to mother’s amended parenting plan because the court is required to include written findings detailing the specific relevant factors that made the particular arrangement in the best interest of the children and failed to include a written finding detailing the specific relevant factors resulting in the rejection of a proposed arrangement, in that custody was in dispute, that each party submitted their proposed custody arrangement, that the court found mother’s parent plan was in the best interest of the children, that the court did not include specific relevant factors for adopting mother’s parent plan, and the court made no written finding detailing the specific relevant factors resulting in the rejection of father’s proposed parent plan.
- The trial court erred in awarding joint legal and joint physical custody of the minor children pursuant to the terms of mother’s parenting plan because a court shall not modify a prior custody decree unless it finds a change has occurred in the circumstances of the children or their custodian and that modification is necessary to serve the best interest of the children, in that the custody provisions of the prior decree were modified and no finding of change in circumstances was made as required pursuant to §452.410.1, RSMo.
- The trial court erred in modifying the support provisions of the judgment because support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable and the support shall be determined in conformity with criteria set forth in § 452.340 RSMo, in that the evidence failed to show a change of circumstances sufficient to modify the prior support order and the court’s award made no findings that the support amount conformed with the criteria set forth in § 452.340.8 and Rule 88.01.
- The trial court erred in entering judgment denying appellant’s motion to modify because the court’s conclusion that joint legal and joint physical custody is in the best interest of the children is unsupported by substantial evidence, is without support in the evidence, and reflects a misapplication of the law, in that all of the probative evidence adduced at trial, and reasonable inferences, demonstrates that substantial change in the circumstances of children and custodians occurred and that modification of custody is necessary to serve the best interests of the children.
- The trial court erred in entering judgment that joint legal and joint physical custody is in the best interest of the children because the court was required by §§ 452.375.13 and 452.375.2(6) to make specific findings of fact that awarding custody to respondent is in the best interest of the children and the arrangement best protects the children from future harm, in that substantial evidence was adduced at trial to support a history and pattern of abuse by Respondent against the minor children.
Briefs for WD76470 – Rocking H. Trucking, LLC and John Payne Harrison, IV, Respondent vs. H.B.I.C., LLC, Michelle Alderson, and David Fenton, D.V.M., Appellants
Rocking H. Trucking, LLC and John Payne Harrison IV (Respondents) filed suit against H.B.I.C, LLC, Michelle Alderson and David Fenton, DVM (Appellants) for replevin and damages or in the alternative, promissory estoppel and fraud, seeking the return of trucks that were transferred from Rocking H to H.B.I.C. and damages for lost income. The trial court entered judgment for Respondents on the replevin count, and awarded them $200,416.67 for lost income with statutory interest. In May of 2013, Respondent, Rocking H. filed its election to keep possession of the trucks and trailers.
Appellant argues on appeal:
- The trial court erred in entering judgment for replevin based on its finding sue sponte that transfer of title of the trucks and trailers was void due to the fact that the titles were not delivered at the time of delivery of the trucks and trailers because there was no substantial evidence to support it, was against the weight of the evidence and misapplied the law in that Plaintiff Harrison testified that Alderson could not get possession of the trucks before she had received the titles, authorized Callaway Bank to release the titles to Alderson and the plaintiffs had the burden of proving the void transfer and the plaintiffs did not plead or offer any evidence to support the claim.
- The trial court erred in entering a judgment for replevin because it was against the weight of the evidence and misapplied the law in that plaintiff Harrison’s testimony was not credible with respect to being the sole owner of the Rocking H Trucking in that no certificates of ownership were ever issued and nor was an operating agreement for the limited liability company ever prepared.
- The trial court erred in entering judgment for the plaintiffs against David Fenton and Michelle Alderson, as individuals, in Count I and also in entering judgment for plaintiffs in Count II where the court failed to rule who the judgment was against because there was no substantial evidence to support the award, was against the weight of the evidence, and misapplied the law in that the trucks in question were originally titled in Rocking H Trucking, LLC and transferred to and titled in H.B.I.C., LLC.
WD76304 – State of Missouri, Respondent vs. Henry L. Sutton, Appellant
Henry Sutton (Appellant) appeals from his conviction and sentence as a prior and persistent offender for the class D felony of driving while revoked. Appellant was fined $500. In January of 2011, Missouri State Highway Patrol Corporal, Eric Keim, was dispatched to a motor vehicle accident on Highway 65 on the southern edge of Sedalia. When the patrolman arrived, he saw a Jeep Liberty parked in the center lane; and about 20 feet in front of the Jeep was a small Isuzu flatbed truck. The Jeep had front-end damage. Appellant was the drive of the Isuzu. Appellant told the patrolman that he was working with a construction crew that was painting the turn arrows in the center lane, which was closed to traffic. He said the crew was moving northward as they painted and that he was backing up the Isuzu to stay with the crew. The Jeep pulled into the center lane behind him and he then backed into the Jeep. Appellant’s license was revoked at the time of the accident, under a ten-year denial (he is not eligible for reinstatement until 2018).
Appellant argues on appeal:
The trial court erred in overruling Henry’s motion for judgment of acquittal at the close of all the evidence, in finding Henry guilty of driving while revoked, §302.321, and in entering judgment and sentence for that offense, because this violated Henry’s right to due process of law, in that §302.231 prohibits a person from driving while his driving privileges are revoked if such person is operating a motor vehicle on “a highway;” Henry was a worker on a crew contracted by the Missouri Department of Transportation to paint turn arrows in the center lane of a portion of Highway 65, and he only drove the work truck backward a few yards in the clearly-marked closed work zone; and a closed work zone is not a “highway” because at the time it is closed, it is not a “public thoroughfare.”