State ex rel. BNSF Ry. Co. v. Neill[1]

Opinion handed down December 20, 2011
Link to Mo. Sup. Ct. Opinion

The Burlington Northern and Santa Fe Railway Company (the Railroad) petitioned the Supreme Court of Missouri for mandamus relief from a protective order entered by the trial court, which barred discovery of an employee’s psychiatric treatment records in that employee’s underlying personal injury action against the Railroad. The Supreme Court of Missouri granted the Railroad a permanent writ based on the fact that the trial court abused its discretion in holding that discovery of a psychiatrist’s records can be wholly excluded when the plaintiff only claims physical rather than psychological injury. The court held that the discovery sought was reasonably calculated to lead to admissible evidence on the subject of the causation of the plaintiff’s injuries.

Hargis v. JLB Corp.[1]

Opinion handed down December 20, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that a mortgage broker business did not engage in the unauthorized practice of law when it gathered information necessary to prepare[2] a note and mortgage or deed of trust, and then subsequently provided that information to third parties who prepared these legal documents. The court also found that the plaintiff’s claim of unjust enrichment was not necessarily predicated on the finding that a mortgage broker engaged in the unauthorized practice of law.

Cooper v. State[1]

Opinion handed down December 6, 2011
Link to Mo. Sup. Ct. Opinion

Cooper pleaded guilty to two criminal offenses. His plea agreement, which included a favorable sentencing recommendation, required that he waive his right to seek post-conviction relief. He subsequently filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 24.035 alleging ineffective assistance of counsel. The primary issue was whether Cooper's waiver was rendered involuntary because his defense counsel had a conflict of interest in advising Cooper to waive potential claims concerning her effectiveness. The Supreme Court of Missouri held that because Cooper knowingly, voluntarily, and intelligently waived his post-conviction rights, his motion filed pursuant to Rule 24.035 must be dismissed.

Ocello v. Koster[1]

Opinion handed down November 15, 2011
Link to Mo. Sup. Ct. Opinion

A group of adult oriented businesses and Missouri residents challenged recent additions to the Missouri statutes that restrict certain kinds of sexually oriented businesses. The Supreme Court of Missouri, taking the appeal directly from a judgment on the pleadings for defendants at the trial court level, upheld the regulations as reasonable, content-neutral time, place, and manner restrictions that were consistent with U.S. Supreme Court precedent.

A.E.B. v. T.B.[1]

Opinion handed down October 25, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that the trial court lacked authority to order the mother in an initial child custody action to relocate back to a tri-county area in Missouri. The court held that while Revised Statutes of Missouri § 452.377 provides for relocation order procedures, it is inapplicable since it only applies to the modification of an existing child custody and visitation order.

Shirley Phelps-Roper v. City of Manchester, Mo.[1]

Opinion issued October 5, 2011
Link to Eighth Circuit Opinion

In this case, a three-judge panel from the Eighth Circuit Court of Appeals struck down a Manchester, Missouri ordinance regulating funeral protests. While the Court determined the law was unconstitutional under Eighth Circuit precedent, it noted that the Sixth Circuit recently upheld a similar law. In a concurring opinion, Judge Diane E. Murphy suggested that recent U.S. Supreme Court decisions might recommend a different analytical approach.

Simpson v. Simpson[1]

Opinion handed down October 4, 2011
Link to Mo. Sup. Ct. Opinion

Mr. Simpson (Husband) appealed the dismissal of his motion to terminate maintenance arguing that the statutory presumption created by Revised Statutes of Missouri § 452.370, that maintenance terminates upon remarriage of the recipient, was not overcome by the written agreement between him and his wife (Wife), because it did not expressly waive the presumption. The Supreme Court of Missouri disagreed, holding that the express language is unnecessary so long as the writing between the parties extends the obligation, expressly or by implication.

Wehrenberg, Inc. v. Director of Revenue[1]

Opinion handed down October 4, 2011.
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that Revised Statutes of Missouri § 144.014, which imposed a one percent state sales tax on the sale of food items that can be purchased with food stamps, did not apply to Wehrenberg, Inc.’s concession sales in its movie theaters. The court reasoned that because the federal food stamp program defined food as “any food product for home consumption,” that Wehrenberg’s concession sales did not meet this definition.

St. Charles County v. Laclede Gas Co.[1]

Opinion handed down August 30, 2011
Link to Mo. Sup. Ct. Opinion

St. Charles County (county) recorded on five subdivision plats that some of its public roads are “utility easements” specifically allowing for the installation and upkeep of gas lines. When the county later planned to widen one such road, Pitman Hill Road, Laclede Gas Company (Laclede) refused to pay for the relocation of its gas lines. The county filed a declaratory judgment action, seeking that the Circuit Court of St. Charles County order Laclede to pay for the cost. The circuit court entered a summary judgment in favor of the county. Laclede appealed to the Supreme Court of Missouri, which reversed the circuit court’s judgment and remanded the case. The court held that: 1) the county’s failure to compensate Laclede would constitute an unconstitutional taking; 2) compelling the county to repay Laclede would not curtail the county’s police power over public roads; 3) the doctrine of merger is inapplicable; 4) Laclede’s easement is a compensable property interest regardless of whether it was formed before or simultaneously with the establishment of the public right-of-way; 5) and even though the subdivision plat language creating the public road preceded that which created the utility easements, there was no priority of interest. 

Buemi v. Kerckhoff[1]

Opinion handed down August 2, 2011
Link to Mo. Sup. Ct. Opinion

The Kerckhoffs[2] appealed a trial court order imposing sanctions of $122,425 in attorney fees for acting in bad faith in a mediated settlement meeting.[3] Since the order imposing sanctions was interlocutory in nature and not a “claim for relief,” the Supreme Court of Missouri dismissed the appeal for lack of final judgment.[4]

Manzara v. State[1]

Opinion handed down August 2, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that two taxpayers did not have standing to challenge the constitutionality of the Distressed Areas Land Assemblage Tax Credit Act because the issuance of tax credits was not a direct expenditure of funds generated through taxation. This holding makes it extremely difficult for taxpayers in Missouri to challenge the constitutionality of tax credits.

State ex rel. Griffin v. Denney[1]

Opinion handed down August 2, 2011
Link to Mo. Sup. Ct. Opinion

Reginald Griffin was convicted of first-degree murder. The conviction stemmed from the murder of an inmate at a correctional facility in which Griffin was also an inmate. In the course of his appeal and proceedings on his motion for post-conviction relief, he discovered that another inmate, who had been in the prison yard where the murder occurred, had been found with a weapon immediately after the murder. Because the prosecution did not disclose this information to him, and he could not assert the claim in his direct appeal or post-conviction relief proceeding due to procedural issues, he filed a petition for a writ of habeas corpus with the Supreme Court of Missouri. The Court granted the petition, finding that the failure to disclose the evidence prejudiced Griffin. The dissent disagreed after concluding that evidence of a weapon found on the other inmate was not favorable to Griffin.

State ex rel. Holzum v. Schneider[1]

Opinion handed down July 19, 2011
Link to Mo. Sup. Ct. Opinion

The case stemmed from a medical malpractice claim filed on the final day of the statutory limitation period for such suits. Following discovery the plaintiff dismissed several of the original defendants, initially unknown and identified as John and Jane Doe, and named multiple new defendants in an amended complaint. The new defendants argued that the claim against them should be dismissed, as it was barred by the running of the statute of limitations. The Supreme Court of Missouri, examining the applicable rules regarding the “relation back” of amendments, held the amendment did not fall within the statutory period and dismissed the claims against the new defendants,. In doing so, the Court clarified and strengthened the pleading standards necessary for “Doe” defendants to toll the statute of limitations. 

Kansas City Premier Apartments, Inc. v. Mo. Real Estate Comm’n[1]

Opinion handed down July 19, 2011
Link to Mo. Sup. Ct. Opinion

Kansas City Premier Apartments, Inc., a corporation offering advertising and other services through its website, challenged Revised Statutes of Missouri §§ 339.010.1 and 339.010.7, which require a real estate license to perform certain activities. It contended that not only was it exempt from the statutes but also that the statutes violated numerous provisions of the United States and Missouri Constitutions. The free speech challenge is the issue of primary interest. The majority determined the relevant subsections under § 339.010 were permissible regulations of commercial speech. Meanwhile, the dissent unleashed an attack on the entire occupational licensing statutory scheme, and ultimately concluded that under a very recent U.S. Supreme Court ruling, the statute was unconstitutional as a violation of the First Amendment.

St. Louis County v. Prestige Travel, Inc.[1]

Opinion handed down June 28, 2011
Link to Mo. Sup. Ct. Opinion

As part of a national trend of similar litigation, St. Louis County and St. Louis Convention and Visitors Commission (CVC) filed suit against Prestige Travel, Inc. (Prestige) and several other online travel companies that contract for discounted motel rooms and then resell the rooms online at a higher price. St. Louis County and CVC claimed that §§ 502.500-502.550 of the revised ordinances of St. Louis County and Revised Statutes of Missouri §§ 67.601-67.626 required these companies to pay certain hotel and tourism taxes, which they had not paid. House Bill No. 1442 (H.B. 1442) was then enacted, exempting such travel companies from the taxes at issue. The circuit court dismissed the case, and on appeal the Supreme Court of Missouri affirmed, holding that Prestige was not obligated under the taxing statutes before enactment of H.B. 1442, and that H.B. 1442 did not violate the Original Purpose, Clear Title, or Single Subject provisions of the Missouri Constitution.

Mo. Ass’n of Nurse Anesthetists, Inc. v. State Bd. of Registration for the Healing Arts[1]

Opinion handed down June 28, 2011
Link to Mo. Sup. Ct. Opinion

In 2007, the State Board of Registration for the Healing Arts (the Board) sent a letter to Dr. Kunkel prohibiting his delegation of certain responsibilities to nurses with whom he worked. Dr. Kunkel and other interested parties subsequently filed a petition in circuit court requesting relief from the policy. The trial court granted summary judgment for the Board, dismissing all claims by Dr. Kunkel and the other parties. On appeal, the Supreme Court of Missouri reversed and remanded. The court held that the letter sent to Dr. Kunkel constituted a “rule” and was invalid because the Board failed to follow proper rulemaking procedures as provided by statute. While the Board has the authority to properly promulgate rules on the general subject matter, the court remanded because it is a question of fact to determine if the Board independently possesses this authority. The court’s holding is proper and consistent with statute because the letter to Dr. Kunkel was not limited to the specific facts of his situation. The letter was instead a general statement that all APNs were unqualified to perform certain procedures. To make such general policy statements the Board must instead adhere to the statutorily prescribed rule making procedure.

State ex rel. Taylor v. Steele[1]

Opinion handed down May 31, 2011
Link to Mo. Sup. Ct. Opinion

Michael Anthony Taylor pled guilty in 1991 to kidnapping, rape, and first-degree-murder of a young girl. On two occasions he was sentenced to death by a judge. After multiple attempts in both state and federal court to have his sentence overturned, Taylor sought a writ of habeas corpus from the Supreme Court of Missouri. On appeal, Taylor argued that because of subsequent United States Supreme Court decisions, his death sentence was imposed unlawfully by a judge, rather than by a jury, and that his sentence violated his constitutional rights. The Supreme Court of Missouri disagreed, finding that Taylor was not entitled to jury sentencing because he had made a conscious and strategic decision to be sentenced by a judge believing it gave him the best chance of avoiding the death penalty.

State v. Brown[1]

Opinion handed down May 17, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri reversed and remanded the second-degree murder conviction of Anthony Brown. At trial Brown had asserted self-defense, and during closing arguments the trial court had permitted the State to use a .38 revolver as demonstrative evidence to rebut Brown’s claim of self-defense. The conviction was reversed because there was no testimony that the .38 was similar to the gun allegedly carried by the victim.

Schmitz v. Great Am. Assurance, Co.[1]

Opinion issued April 26, 2011
Link to Mo. Sup. Ct. Opinion

Christine Ewing died from injuries she sustained falling from a portable rock climbing wall at a minor league baseball game.[2] Her parents sued the baseball team’s owner, who had primary and excess insurance policies. After settling with the owner, and in the course of the proceedings against the insurers, four issues arose: (1) whether the excess liability policy required exhaustion of the primary policy before it would apply; (2) whether the rock climbing wall was an “amusement device” within the meaning of the policy’s amusement device exclusion; (3) whether the court was permitted to examine the reasonableness of the underlying judgment; and (4) whether the excess insurer’s refusal to defend was justifiable. The Supreme Court of Missouri held that the excess policy did not require exhaustion, the rock climbing wall was not an “amusement device,” the court was not permitted to examine the reasonableness of the underlying judgment, and the excess insurer’s refusal to defend was unjustifiable.

Fast v. Applebee’s Int’l, Inc.[1]

Opinion handed down April 21, 2011
Link to Eighth Circuit Opinion

On interlocutory appeal, the United States Court of Appeals for the Eighth Circuit affirmed the district court’s order denying Applebee’s motion for summary judgment, concluding that the Department of Labor’s (DOL) interpretation of the Fair Labor Standards Act (FLSA), as contained in the Wage and Hour Division’s Field Operations Handbook (Handbook), establishing conditions for when employers could use the alternative minimum wage for tipped employees, was reasonable, persuasive, and entitled to deference.[2]

Debaliviere Place Ass’n v. Veal[1]

Opinion handed down April 12, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that a dissolved neighborhood association could transfer its rights to collect assessments from property owners to a new neighborhood association with the same name because the transfer was an appropriate part of the winding up process of the dissolved association.

State v. Bowman[1]

Opinion handed down April 12, 2011
Link to Mo. Sup. Ct. Opinion

Gregory Bowman was convicted by a jury of first-degree murder.[2] At the sentencing phase, the jury found six aggravating factors, and the trial court imposed the death penalty accordingly.[3] Bowman appealed the conviction and death sentence to the Supreme Court of Missouri.[4] The Court upheld the conviction but reversed the death sentence.[5] The majority reversed on grounds that during sentencing, the jury considered invalid factors; namely, two previous Illinois murder convictions which were later reversed. Judge Wolff, concurring in part and dissenting in part, engaged in a proportionality review based on Section 565.035 of the Revised Statutes of Missouri; this review led to the same result and brought to light a number of issues that demonstrate the room for error existing in death penalty cases. Given the finality of the death penalty, efforts should be made to decrease room for error as much as humanly possible.

Webb v. State[1]

Opinion handed down March 29, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri in Webb v. State adopted a longstanding lower court rule granting evidentiary hearings to defendants claiming ineffective assistance of counsel after having pled guilty allegedly due to misinformation regarding parole eligibility. However, the recent decision by the U.S. Supreme Court in Padilla v. Kentucky may have far greater implications for defense counsels’ traditional duty to inform clients of plea consequences.

Utility Service Co., Inc. v. Dep’t of Labor and Indus. Relations[1]

Opinion handed down March 1, 2011
Link to Mo. Sup. Ct. Opinion

Missouri’s Prevailing Wage Act governs the payment of wages to workers engaged in public works’ projects. This remedial legislation ensures fair compensation and protects those individuals involved in construction – not maintenance – of public structures. This case concerns a contractor, Utility Service, Inc. (“Utility Service”), that was hired by Monroe City, Missouri to care for the city’s water storage tank and tower structure, add a safety structure, and thoroughly clean and inspect the unit. After entering into the contract, Utility Service contacted the Department of Labor and Industrial Relations (“Department”) to confirm that their contract with Monroe City did not require the payment of prevailing wages. However, the Department disagreed with the company’s assessment, arguing that the work performed on the water storage tank and tower constituted “construction” under the Prevailing Wage Act. The trial court granted the Utility Service a declaratory judgment against the Department that the work was merely “maintenance.” The Western District Court of Appeals affirmed, but the Supreme Court of Missouri granted transfer and reversed, finding that Utility Service’s contract with Monroe City involved “construction” work and therefore required the payment of prevailing wages.

In re Foreclosures of Liens for Delinquent Land Taxes by Action in rem Collector of Revenue[1]

Opinion issued March 1, 2011
Link to Missouri Supreme Court Opinion

On appeal from a decision by the St. Louis City Circuit Court, the Supreme Court of Missouri upheld the confirmation judgment affirming a tax sale of the petitioner’s land. The court held that sending notice by mail to the address listed for the property did not violate petitioners’ due process rights even though the property was vacant and mail was not being delivered to that location. Additionally, because the petitioner failed to present any evidence that the sheriff knew or should have known that notice of tax sale was ineffective, the sheriff was not required to take any additional steps to notify the owner.

Johnson v. State[1]

Opinion issued March 1, 2011
Link to Mo. Sup. Ct. Opinion

Ineffective assistance of counsel claims are a fairly common part of criminal appeals and are present in nearly all capital appeals. In the instant case, the Supreme Court of Missouri held that all five of petitioner’s claims were without merit, either because counsel was not deficient, or if he was, that petitioner was not prejudiced by the deficiency, thus once again reaffirming the large burden that a movant carries in an ineffective assistance of counsel claim.

United States v. Boyce[1]

Opinion handed down February 28, 2011
Link to Eighth Circuit Opinion

The Court of Appeals for the Eighth Circuit reversed the district court’s decision not to sentence a defendant under the Armed Career Criminal Act and held that a conviction for possession of a weapon in a correctional facility qualifies as a violent felony. The Third Circuit has reached the opposite conclusion, but the Eighth Circuit followed the reasoning of the Fifth and Tenth Circuits.

Children’s Wish Foundation Int’l, Inc. v. Mayer Hoffman McCann, P.C.[1]

Opinion handed down February 8, 2011.
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri examined whether the comparative fault doctrine applies to professional negligence cases involving economic loss. As a general rule, in negligence actions, Missouri courts apply comparative fault instead of contributory negligence. However, the Uniform Comparative Fault Act says that comparative fault does not apply to cases of negligent misrepresentation involving economic loss. The Supreme Court of Missouri has never ruled squarely on this issue. The court said that all negligence actions are based on fault and the nature of the injury does not inherently warrant the application of comparative fault in some cases and contributory fault in others. Therefore, the Supreme Court of Missouri, disagreeing with the Uniform Comparative Fault Act, held that comparative fault applies in professional negligence cases involving economic loss and that the trial court erred in submitting an instruction to the jury regarding contributory negligence.

Kivland v. Columbia Orthopedic Group[1]

Opinion issued January 25, 2011
Link to Mo. Sup. Ct. Opinion

In Kivland, the Supreme Court of Missouri reiterated that, in a wrongful death lawsuit, the guiding standard for expert witness testimony is Mo. Rev. Stat. section 490.065 in which the plaintiff must show that an expert witness is both qualified and capable of clarifying the issues for the trier of fact. In a wrongful death lawsuit, the plaintiff must demonstrate that the defendant was both the direct and proximate cause of the decedent’s death. In this case, the issue was whether the plaintiff had satisfactorily demonstrated the proximate cause element. The court ruled that the element was satisfied when the plaintiff’s expert witness testified in a deposition that the deceased was driven to suicide after an alleged botched surgery resulted in severe, debilitating pain. The court added that the decedent’s mental state was immaterial to the admissibility of the expert witness. The summary judgment was partially reversed and remanded.

Moore v. Ford Motor Co.[1]

Opinion handed down January 25, 2011
Link to Mo. Sup. Ct. Opinion

In Moore, the Supreme Court of Missouri reversed and remanded the trial court’s directed verdict against the owners of an automobile on their claims that the manufacturer failed to adequately warn them of the risks associated with the front seats of the vehicle in the event of a rear-end collision. The court affirmed judgments of the trial court regarding the submission of expert testimony and the inadmissibility of some testimony of the automobile owner.

Howard v. City of Kansas City[1]

Opinion handed down January 25, 2011
Link to Mo. Sup. Ct. Opinion

The Supreme Court of Missouri held that a Kansas City municipal court judge is considered an “employee” under the Missouri Human Rights Act (MHRA). Additionally, as a matter of first impression, the court held that municipalities are liable for punitive damages under the MHRA just like any other employer.