The Law Office of Kurt H King

May 11, 2016

MISSOURI PRISON TIME SERVED CREDITED TO BOTH THE PAROLE VIOLATION AND THE NEW CRIME

Filed under: Litigation,Uncategorized — kurthking @ 8:29 pm
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The May 3, 2016, slip opinion in Yowell v. Missouri Department of Corrections (Mo. Ct. App. WD79200) holds that where the same act (1) violates probation and (2) constitutes the new crime charged against the defendant, time served on the parole violation must be credited against the sentence on the new charge as well.

The facts of this case twist and turn tortuously, but a sentence on page 8 of the opinion hits the spot:

“[T]he incident that led to the new charge is the exact behavior that led to the probation violation and revocation,

meaning that, without the consumption of alcohol, Mr. Yowell would remain free from custody.”

Because the parole violation resulted from the same act/behavior as did the the new charges/offense, the two are “related” for purposes of Missouri’s section 558.031.1, RSMo., which proscribes when credit for time served is due.

So, in this common scenario, time served on the parole violation must be credited against the sentence on the new charges.  Where a person’s imprisonment on separate offenses stems from the same act, credit for time served must be given against each of the related offenses.

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

General Matters, Personal Injury, Workers’ Compensation, Family Law

DO YOU HAVE TO PLEAD MARITAL MISCONDUCT IN MISSOURI?

Filed under: Divorce,Family Law — kurthking @ 8:04 pm
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Answer:  No.

The case of McMillin v. McMillin, 633 S.W.2d 223 (Mo. Ct. App. E.D. 1982), holds that such pleading is not necessary where request is made to divide the marital property.  The reason being that marital misconduct is one of several statutory factors that court’s consider in dividing such property.  Senseless to require the underlying factors to also be pled.  However, we have seen the court make the mistake of sustaining an objection to evidence of marital misconduct where it was not specifically plead, so this case may be handy if your judge’s stance on this issue is unclear.

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Workers Compensation, General Matters

February 24, 2016

Spoilation of Evidence Experience in Clay County, Missouri

Missouri history of sanctions for spoilation of evidence dates back to the 1882 case of Pomeroy v. Benton where the Court fashioned an adverse ruling against a defendant who concealed evidence of damages to his partner.  Many cases since address whether a court should grant an adverse inference or sanctions due to spoilation.

We argued this issue in a 2015 jury case in Clay County, Missouri, the Court ultimately denying request for an adverse inference based on what we believed to have been wrongful destruction of video of plaintiff’s fall captured by surveillance camera mounted on the exterior of the grocery store.  The store claimed to have mistakenly preserved video of the day after plaintiff’s fall, having taped over the day that plaintiff actually fell.  A risk manager for the chain store timely requested video of the fall–obtaining the “day after” video–but the store claimed it received no request for the correct video within the allotted 30 days after plaintiff’s fall.

The Circuit Court of Clay County, Missouri, apparently determined that the store did not intentionally destroy (by tape-over 30 days later) video of plaintiff’s fall, and/or that it did not do so with intent to defraud.

Note that months passed after the fall before the undersigned began representing plaintiff, and no letter issued shortly after plaintiff’s fall demanding the store preserve video and other evidence of the fall.  Such a preservation demand or other duty to preserve can be key.  We know not how the Court weighed our argument that: 1) the store immediately knew of the fall (its manager having assisted at the scene and reported the incident to superiors); 2) the video was in fact timely requested although that of the wrong date actually sent; and, 3) the store knew full well of a need to properly preserve video and other evidence of  customer injury known to it.  However, our impression is that the lack of an early demand for preservation of evidence was not decisive in this case to this judge.  Indeed, other courts indicate failure to have an adequate retention policy may constitute spoilation under certain circumstances.  But this store did have a preservation system in place, that being a 30 day tape over policy by  which previous video is simply taped over on the 31st day absent request to preserve made within 30 days.

P.S.–Weeks after this trial, a plaintiff’s attorney with a similar case against this defendant called for my thoughts.  He mentioned that the defendant store also lost/destroyed video of his client’s injury.  Wonder how often Hy-Vee fails to preserve and whether it is truly accidental?

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Personal Injury, Workers’ Compensation, Litigation, General Matters

February 9, 2016

Boarding & Pasture Liens On Horses and Other Animals in Missouri

Filed under: Litigation,Uncategorized — kurthking @ 9:53 pm
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Do liens attach to horses and animals when the pasture rent or boarding bill goes unpaid?  Yes, in Missouri.

Missouri’s section 430.150 lays it out–“Every person who shall keep, board, or train any horse, mule or other animal, shall, for the amount due therefor, have a lien on such animal, and on any vehicle, harness, or equipment coming into his possession therewith, and no owner or claimant shall have the right to take any such property out of the custody of the person having such lien, except with his consent or on the payment of such debt . . . .”

At least one Missouri case holds the “agister’s lien” granted by section 430.150 “squarely gives the lien” upon cattle pastured at $x per head per month.  Crouch v. Brookshire, 330 S.W.2d 592 (Mo. Ct. App. WD 1959).

See too Missouri’s 430.160, RSMo, for the procedure to enforce the lien, requiring the lien holder to sue in court to prove the amount owed and establish upon what property his lien attached in order to obtain a court order that the property be sold to satisfy the lien.

And note section 430.030, RSMo, granting a lien  to persons who furnish “labor or material on any horse, mule or other animal” upon written order therefor signed by the owner of the animal.  This law protects farriers, vets, and the like from non-payment for their goods and services, provided they have a signed order.

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri, 816.781.6000

General Matters and Litigation, Personal Injury, Workers’ Compensation, Estate Planning, Family Law

January 6, 2016

Pre-Bankruptcy Judgments Are Not Liens Upon Post-Bankruptcy Real Property in Missouri

Filed under: Bankruptcy,Litigation,Uncategorized — kurthking @ 5:01 pm
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Absent fraud, and provided the judgment creditor was properly listed and included in the debtor’s Chapter 7 bankruptcy that resulted in Order of discharge of debt, pre-bankruptcy judgments are not liens upon real property acquired after the bankruptcy.  Title companies should not attempt to require releases of pre-bankruptcy judgments in order to clear title to real property that debtor legitimately acquired after the bankruptcy discharge order.  Case law to that effect includes:  Meyer v. Ragar, 935 S.W.2d 97 (Mo. Ct. App. W.D. 1996); Pruellage v. The De Seaton Corp., 407 S.W.2d 36 (Mo. Ct. App. E.D. 1966); Local Loan Co. v. Hunt, 292 U.S. 234 (1934).

Law Office of Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Personal Injury, Missouri Workers’ Compensation, Civil Litigation, Family Law, and General Legal Matters

December 29, 2015

When Missouri Claim for Emotional Distress Should Be Stricken as Duplicative

Consider a case where plaintiff sues for trespass and includes a separate count for infliction of emotional distress, with both counts alleging the same trespass facts.

Know that an emotional distress claim cannot be maintained as a separate cause of action alongside the underlying tort claim for trespass (for instance) and recovery must be had under the traditional tort action.  K.B. v. R.T.R, 918 S.W.2d 795, 799 (Mo. 1996); Nazeri v. Missouri Valley College, 860 S.W.2d 303, 316 (Mo. 1993).

Law Office of Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Civil Litigation, Personal Injury, Workers’ Compensation, Family Law & General Matters

Proving Emotional Distress Where There Is No Physical Impact

To recover for emotional distress where there is no physical impact, the injured person must plead and prove the purported act directly caused emotional distress that is “medically diagnosable and medically significant.” Miller v. Wackenhut Services, 808 F.Supp. 697 (W.D.Mo. 1992), citing Hendrix v. Wainwright Industries, 755 S.W.2d 411, 412 (Mo. Ct. App. E.D. 1988); Bass v. Nooney, 646 S.W.2d 765, 773 (Mo. 1983).  Expert medical testimony is generally required.

Law Office of Kurt H. King

20 E. Franklin, Liberty, Clay County, Missouri 64068; 816.781.6000

Civil Litigation, Personal Injury, Missouri Workers’ Compensation, Family Law, & General Matters

December 22, 2015

Rare Missouri Case Allowing Re-litigation of Civil Contempt Claims

Parties file Civil Contempt cases due to an opposing parties’ refusal to comply with the Court’s judgment.  In defense to the contempt action, the violating party may claim that collateral estoppel or res judicata bars all claims that were or could have been asserted in previous litigation between the parties.  Many cases uphold that defenses, but the Western District of the Missouri Court of Appeals held otherwise in a case where the violating party lacked the financial ability to comply with an order that he pay maintenance at the time his former spouse first tried to hold him in contempt of court on that basis.

By the time of second contempt action, however, the man’s finances had improved and the trial court allowed the former wife to proceed with her contempt claim for failure to pay temporary mainteance.  The Court of Appeals upheld the trial court’s rejection of collateral estoppel/res judicata as a defense.

The case is Walton v. Walton, 789 S.W.2d 64, 67-68 (Mo. Ct. App. W.D. 1990).

Law Office of Kurt H. King

20 E. Franklin, Liberty, Missouri 64068; 816.781.6000

Civil Litigation including Personal Injury and Property Claims, Workers’ Compensation, Family Law & General Matters

Does Bankruptcy Court have Power to Hear Counterclaims in Adversary Proceedings?

If you file an Adversary proceeding in Bankruptcy Court, and defendant files counterclaims for infliction of emotional distress (actionable under state law), read the US Supreme Court’s 2011 opinion in Stern v. Marshall, 564 U.S. ___, 131 S. Ct. 2594.  There the high court reviews Article III powers of bankruptcy courts regarding such claims and rules that the bankruptcy court lacks power to enter final judgment on counterclaims of that species.  However, the remedy is not dismissal for lack of jurisdiction, but rather transfer to federal District Court (or the parties may consent to trial before the bankruptcy judge).

Law Office of Kurt H. King

20 E. Franklin, Liberty, Missouri 64068; 816.781.6000

Civil Practice including Litigation of Personal Injury and Property Claims, Workers’ Compensation, Family Law Matters

August 19, 2014

History of Wrongful Death Actions in Missouri

Do yourself a big favor and read Daniel Sheffner’s article in the July-August 2014 edition of the Journal of the Missouri Bar (Google search will find it for you), entitled “Wrongful Death’s Common Law Antecedents in Missouri.” Well written with important information.

Sheffner traces the fallacy that began the need for states to pass wrongful death laws. And, he points out that James v. Christy, 18 Mo. 162 (1853), a case decided two years before Missouri’s first wrongful death law, indicates that Missouri COMMON LAW afforded recovery of damages for wrongful death.

Since Missouri common law granted recovery for wrongful death prior to the state’s first wrongful death act passed in 1855, the present damage caps should not apply for that reason as well as the fact that such caps were recently struck down where the victim survived the injury. Why should recovery be limited when the victim dies but not when he lives?

Kurt H. King
816.781.6000
20 E. Franklin, Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Personal Injury, Workers’ Compensation
Chapter 7 Bankruptcy for debtors, Family Law, General Matters

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