Case Summary for May 10, 2011

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Case Summary for May 10, 2011

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit Case.net.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Tuesday, May 10, 2011

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SC91125
Kansas City Premier Apartments, Inc. v. Missouri Real Estate Commission
Platte County
Statutory and constitutional challenge regarding real estate licensing requirements
Listen to the oral argument:

The company was represented during arguments by David E. Roland, a solo practitioner in St. Louis, and commission was represented by Edwin R. Frownfelter of the attorney general's office in Kansas City.

Kansas City Premier Apartments Inc. contracted with property owners to receive compensation in return for referring prospective tenants. In June 2006, the Missouri Real Estate Commission notified the company that it determined the company unlawfully was engaging in real estate activities without a real estate license. In March 2007, the commission sent a second letter threatening legal action. In April 2007, the company filed a lawsuit seeking a declaratory judgment that its activities were lawful and exempt from the licensing requirements of chapter 399, RSMo, and that the commission’s interpretation of chapter 399 infringed on the company’s free speech rights, its due process rights and its right to equal protection under the law. In June 2009, the trial court issued an injunction prohibiting the company from contracting with property owners to receive compensation in return for referring prospective tenants and from any act requiring a real estate license pursuant to chapter 399. The company appeals.

The company argues that under section 399.010.6(5), it qualifies for exemption from licensing requirements because this section exempts companies hired to perform specified services on behalf of brokers and owners of rental properties. It contends the trial court erred in ruling that certain subsections of 399.010 do not violate the state and federal constitutions. The company asserts the subsections are overbroad and infringe on free speech rights, due process rights and the right to equal protection under the law.

The commission responds that the company is not exempt from licensing requirements because section 399.010.6(5) requires exempt parties first to be engaged in property management, which the company is not. The commission argues that certain subsections of 399.010 do not violate the state and federal constitutions because the subsections do not infringe on free speech rights, due process rights or the right to equal protection under the law.

The following two cases, SC91418 an SC91434, have been consolidated for purposes of argument.
SC91418
State ex rel. BC Missouri Emergency Physicians, LLP, Scott L. Landry, M.D., and David Poggemeier, M.D. v. The Honorable Nancy L. Schneider
St. Charles County
Statute of limitations in a wrongful death action
Listen to the oral argument:

The health care providers were represented during arguments by Terese A. Drew of Hinshaw & Culbertson L.L.P. in St. Louis, and Katz was represented by Mark T. McCloskey of McCloskey P.C. in St. Louis.

In October 2008, Eric Katz filed a wrongful death action against Barnes-Jewish Hospital, Washington University, John Doe and Jane Doe. In April 2009, Katz filed an amended petition naming Barnes-Jewish Hospital Inc., BC Missouri Emergency Physicians LLP, Dr. Scott L. Landry, Dr. David Poggemeier and Dr. Neal W. Holzum as defendants. In October 2009, the trial court denied the newly named health care providers’ motion to dismiss. Subsequently, this Court issued a preliminary writ prohibiting the case from moving forward. The health care providers (excluding Holzum, who petitions this Court separately) now request that the writ be made permanent.

The health care providers argue they are entitled to a permanent writ prohibiting the case against them from going forward. They contend that the statute of limitations has run under section 537.100, RSMo, and that Katz’s allegations against them do not relate back to the original filing in October 2008.

Katz responds that the health care providers are not entitled to a permanent writ. He argues that he filed his action within three years of the date of the decedent’s death pursuant to section 537.100 and that his second amended petition relates back to the original filing because it was a mere correction of the name of a party.

SC91434
State ex rel. Neal W. Holzum, M.D. v. The Honorable Nancy L. Schneider
St. Charles County
Statute of limitations in a wrongful death action
Listen to the oral argument:

Holzum was represented during arguments by Michael J. Smith of Lashly & Baer P.C. in St. Louis, and Katz was represented by Mark T. McCloskey of McCloskey P.C. in St. Louis.

The facts of this case are the same as SC91418, above. Dr. Neal W. Holzum, added in April 2009 as a defendant in this wrongful death action, asks this Court to make permanent its preliminary writ prohibiting the case from moving forward.

Holzum and Katz make susbstantially the same arguments as those in SC91418, above.

SC91370
In re: Byron G. Stewart
Jackson County
Attorney discipline
Listen to the oral argument:

The chief disciplinary counsel was represented during arguments by Sharon K. Weedin of the chief disciplinary counsel's office in Jefferson City.

In November 2008, Jackson County attorney Byron G. Stewart was arrested for driving while intoxicated in Platte County. Stewart previously had pleaded guilty to driving while intoxicated on three occasions. In October 2010, Stewart pleaded guilty to the new charge, and the trial court sentenced him to three years in prison but then suspended execution of the sentence. The chief disciplinary counsel now seeks to discipline Stewart’s law license.

The chief disciplinary counsel argues this Court should suspend Stewart’s law license, stay the suspension and place him on probation for three years. He contends this is an appropriate sanction because, while a suspension is the presumptive sanction under ABA standards, probation and stayed suspension is consistent with prior orders of this Court in alcohol-related driving offense cases.

Stewart did not respond.