presumption error in Missouri

1997State v. Fraction, 782 S.W.2d 764, 770 (Mo.App.1989).

1997State v. Fraction, 782 S.W.2d 764, 770 (Mo.App.1989).

2011"If there is sufficient evidence from which a jury could find that the plaintiff did not already know the danger, there is a presumption that a warning will be heeded." Tune, 883 S.W.2d at 14 . "[T]he term `presumption' is used to mean `makes a prima facie case,' i.e., creates a submissible case that the warning would have been heeded." Id.

2011"If there is sufficient evidence from which a jury could find that the plaintiff did not already know the danger, there is a presumption that a warning will be heeded." Tune, 883 S.W.2d at 14 . "[T]he term `presumption' is used to mean `makes a prima facie case,' i.e., creates a submissible case that the warning would have been heeded." Id.

2014“The mere assertion that conduct of trial counsel was ‘trial strategy1 is not sufficient to preclude a movant from obtaining post-conviction relief based on a claim of ineffective assistance of counsel.” Wilkes v. State, 82 S.W.3d 925, 930 (Mo. banc 2002).

2014“The mere assertion that conduct of trial counsel was ‘trial strategy’ is not sufficient to preclude a movant from obtaining post-conviction relief based on a claim of ineffective assistance of counsel.” 6 Wilkes v. State, 82 S.W.3d 925, 930 (Mo. banc 2002).

2002Under this court's ruling in Hightower v. Hightower, respondents argue that this presumption of error, that the trial court erred in granting a new trial for failure to state a basis for its ruling, is rebutted if the grounds in which the trial court based its ruling clearly appears from the record. 590 S.W.2d 99, 103 (Mo.App.

2002Under this court’s ruling in Hightower v. Hightower, respondents argue that this presumption of error, that the trial court erred in granting a new trial for failure to state a basis for its ruling, is rebutted if the grounds in which the trial court based its ruling clearly appears from the record. 590 S.W.2d 99, 103 (Mo.App.

1993Rule 84.05(b); Reynolds v. Briarwood Development Co., 662 S.W.2d 905, 906 (Mo.App.1983).

1993Rule 84.05(b); Reynolds v. Briarwood Development Co., 662 S.W.2d 905, 906 (Mo.App.1983).

1968Michler v. Krey Packing Co., 363 Mo. 707 , 253 S.W.2d 136, 139 (1 — 4).

1968Michler v. Krey Packing Co., 363 Mo. 707 , 253 S.W.2d 136, 139 (1 — 4).

2008Courts recognize the presumption that a warning would be heeded “only after finding that there was a legitimate jury question whether the plaintiff did not already know the danger.” Id.

2008Courts recognize the presumption that a warning would be heeded "only after finding that there was a legitimate jury question whether the plaintiff did not already know the danger." Id.

2024See Farm Bureau, 608 S.W.3d at 811; Bishop, 81 S.W.3d at 619 ; Norman, 681 S.W.2d at 10 .

2002More recently, the Supreme Court declined to take transfer of Bishop v. Carper, 81 S.W.3d 616, 620-21 (Mo.App.2002), a case in which this court discussed extensively the holdings in Ray and Hightower concerning the presumption of error where the grounds for granting a new trial sufficiently appear from the record. 3 .By stating its grounds for granting a new trial on the record in open court and referring to that record in its docket-entry order, it appears the trial court believed it was complying with Rule 78.03's requirement that the grounds for granting a new trial be specified “of record.

2024See Zimmer v. Belden, 387 S.W.3d 393, 394 (Mo. App. S.D. 2012) (Where respondents filed no brief on appeal, they failed to meet their burden to rebut the presumption in Rule 84.05(c) that the trial court erred in granting a new trial.). 10 Attorney’s Fees Prior to submission of the case, the Yusts filed a motion for attorney’s fees on appeal.

2024Pursuant to our statutory standard of review, we review the decision of the Commission, and the “findings of the commission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law.” RSMo § 288.210; see also Burns, 845 S.W.2d at 554-55 ; McCabe, 653 S.W.3d at 423.

2017After considering all the circumstances presented at trial, counsel “may fairly determine that the use of certain impeachment evidence may cause his or her client more harm than benefit.” King v. State, 505 S.W.3d 419, 424-25 (Mo. App. E.D. 2016).

2017Therefore, to overcome the presumption that defense counsel exercised a reasonable trial strategy in deciding not to impeach a witness, “a movant must demonstrate that the decision was not a matter of reasonable trial strategy and that the impeachment would have provided him with a defense or would have changed the outcome of trial.” Tucker v. State, 468 S.W.3d 468, 474 (Mo. App. E.D. 2015).

2002Blue Cross Health Servs., Inc. v. Sauer, 800 S.W.2d 72, 75 (Mo.App.1990).

1990“When an erroneous instruction is given and the trial results in favor of the party at whose instance it was given, the presumption is that the error was prejudicial.” Grindstaff v. Tygett, 655 S.W.2d 70, 74 [5] (Mo.App.1983) (citations omitted).

1988Binkley, 725 S.W.2d at 911, n. 2 .

1983“When an erroneous instruction is given and the trial results in favor of the party at whose instance it was given, the presumption is that the error was prejudicial.” Moloney v. Boatmen’s Bank, 288 Mo. 435 , 232 S.W. 133, 140 (1921); Brown v. St Louis-San Francisco Ry.

1983“When an erroneous instruction is given and the trial results in favor of the party at whose instance it was given, the presumption is that the error was prejudicial.” Moloney v. Boatmen’s Bank, 288 Mo. 435 , 232 S.W. 133, 140 (1921); Brown v. St Louis-San Francisco Ry.