Case Summary for December 1, 2011

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Case Summary for December 1, 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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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Thursday, Dec. 1, 2011

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SC91780
CACH LLC v. Jon J. Askew
St. Louis County
Challenge to evidentiary standards for debt collection cases

Listen to the oral argument:

Askew was represented during arguments by Dennis M. Devereux of St. Louis and James J. Daher of James J. Daher LLC in St. Louis, and CACH was represented by Karen L. Jones of Evans & Dixon LLC in St. Louis. Judge Scott Hayes, presiding judge of the 14th Judicial Circuit (Howard and Randolph counties), sat in this case by special designation in place of Judge George W. Draper III.

After Jon Askew defaulted on his Providian Bank credit card account, it was sold to CACH LLC, a debt collection agency. CACH sued Askew to collect the debt. At a trial before the court rather than a jury, CACH offered several documents as evidence as well as the testimony of its record keeper for verification of the documents. Included in the documents were checks written by Askew’s wife as payments on the debt. Askew did not contest that these payments were written by his wife from his bank account. The court ruled in favor of CACH on all of Askew’s claims. Askew appeals.

Askew argues that the trial court erred when it admitted into evidence certain documents. He contends these documents did not meet the business records exception to the rule prohibiting hearsay (inadmissible out-of-court statement), did not meet verification requirements and lacked the proper foundation for admittance into evidence. He asserts that the business records exception to hearsay requires the party offering the evidence to meet several requirements to verify the documents were created in the ordinary course of business and that CACH failed to meet those requirements. Askew argues that CACH did not have a right to sue because it failed to prove it properly had been assigned Askew’s account by Providian, the original creditor. Askew asserts the trial court should not have ruled in favor of CACH regarding the amount on the account as stated by CACH. He argues CACH failed to prove that Askew had entered into any agreements to pay the balance CACH declared as final. Finally, Askew contends that the trial court erred in ruling for CACH on its breach of contract claim because it failed to prove there was a contract, an agreement or a recoverable amount of damages.

CACH responds the trial court correctly admitted the documents. It argues they fell under an exception to the hearsay rule, there was a qualified witness to verify each document and Askew failed to claim improper foundation at trial, so he is deemed to have abandoned that issue. CACH contends that the court correctly ruled that it had a right to sue, proven by the bills of sale from Providian to CACH and testimony provided at trial. It further asserts that Askew failed to raise this claim in the court of appeals and, therefore, cannot raise it in this Court. CACH responds that the trial court correctly ruled on the amount of the account as stated by CACH. It argues it proved all the elements of an account stated. Finally, CACH contends that it provided evidence of all of the elements of a breach of contract to satisfy its claim.

The National Consumer Law Center argues, as a friend of the Court, that the business records exception to the hearsay rule should be applied to evidence only when all of the demands of the rule are satisfied. It contends that the documents CACH offered at trial did not meet all of these elements. It also asserts the trial court should not have found that prior payments on the debt by Askew’s wife constituted a promise by Askew to pay the remainder of the debt.

The National Association of Retail Collectors argues, as a friend of the Court, that there was a valid obligation owed under contract and that one party has performed fully while the other has not. It contends that business records are important and regarded as accurate sources of information, especially for banks. The association asserts that parties should not be required to offer testimony of the record preparer for admittance of such business records into evidence. It argues that there is no difference between the testimony of a new employee of the business who produced the record and someone outside the business.

DBA International argues, as a friend of the Court, that the trial court has broad discretion in its decision to admit evidence. It also contends that the business records were properly admitted by the trial court for reasons similar to the arguments made by the National Association of Retail Collectors.

The Commercial Law League of America argues, as a friend of the Court, that Missouri has a strong economic interest in allowing debts to be collected by legal means under the same evidentiary and procedural rules that apply to every litigant. It contends the evidentiary standards should not be heightened solely for actions in which a debt is purchased or assigned to a third party by requiring a chain-of-title witness for every document offered, which it asserts would require an impossible level of testimony. The league asserts that, although the creation, extension and management of credit has evolved dramatically in recent years, these changes do not signify a need for enhanced standards for enforcing such contracts and that these contracts should be enforced using the same standards as in place for all other contracts. The league argues that, under the business records exception, the burden of proof is the same for an original creditor as for an account assignee or any other litigant. The league contends that because statutes and regulations currently protect consumers, there is no need to change the business records exception in debt collection cases. It asserts that CACH’s evidence was admissible on grounds other than the business records exception and, therefore, the trial court did not abuse its discretion in admitting the records.

The Missouri Creditors Bar Inc. argues, as a friend of the Court, that the trial court correctly admitted the documents into evidence. It contends that Missouri law requires a party objecting to the admission of evidence to make a timely, specific objection and provides that objections not made at trial preserve nothing for review. The bar asserts that Askew objected to the documents only on the ground that CACH failed to lay a proper foundation for an exception to the hearsay rule. It argues that the documents are not hearsay because they constitute verbal acts. The bar contends that the rule Askew promotes would have an adverse affect on creditors attempting to recover valid debts. It asserts that the trial court correctly ruled that CACH had standing to sue because CACH proved, through testimony and the bills of sale conveying the account, that it bought the right to collect Askew’s credit card debt from a party with the ability to convey such a right. As such, the bar argues, CACH did not have the burden to prove each step in the chain of title with the testimony of the prior owners.

SC91802
State of Missouri ex rel. SLAH LLC v. City of Woodson Terrace, Missouri, a Municipal Corporation, et al.
St. Louis County
Conflict between state and local tax legislation

Listen to the oral argument:

Woodson Terrace was represented during arguments by Kevin M. O'Keefe of Curtis, Heinz, Garrett & O'Keefe PC in St. Louis, and SLAH was represented by David R. Bohm of Danna McKitrick PC in St. Louis. Judge Scott Hayes, presiding judge of the 14th Judicial Circuit (Howard and Randolph counties), sat in this case by special designation in place of Judge George W. Draper III.

Woodson Terrace enacted an ordinance charging an 85-cent tax per day per room to hotels and motels occupied by transient guests. SLAH LLC, which owns the St. Louis Airport Hilton in Woodson Terrace, lobbied to have a state law enacted that would allow a maximum of $13.50 to be collected each year by cities of certain populations. SLAH filed an action for declaratory judgment (action to determine if ordinance is constitutional) against Woodson Terrace and its city collector. Following judgment, the court reduced Woodson Terrace’s tax to $13.50 per year, declared the ordinance null and void under the new statute, and prohibited the city from collecting a tax greater than $13.50 each year or from collecting late fees. Woodson Terrace appeals.

Woodson Terrace argues that the trial court erred in entering judgment in favor of SLAH and in not applying the Woodson Terrace ordinance instead. It contends the judgment was inappropriate here because money damages would have been sufficient, SLAH failed to pay taxes under protest and the trial court did not have proper jurisdiction. The city asserts that section 94.270.6, RSMo, used to calculate the tax rate, is unconstitutional because it is a special law. The city argues it is the only municipality fitting the requirements of section 94.270.6 and that the law, therefore, unconstitutionally is directed solely at Woodson Terrace. The city further contends that the statute violates the uniformity requirement by creating subclasses.

SLAH responds that the trial court correctly entered declaratory judgment regarding the tax rate. It argues that it was entitled to a determination of rights, that it was not required to make a payment under protest and that the court had proper jurisdiction. It further contends that the statutory tax rate was applied correctly because the statute does not contain a special law nor violates the uniformity requirement and is constitutional. Finally, SLAH asserts that the court correctly found the Woodson Terrace ordinance was made void by section 94.270.6 because the statute is constitutional.

SC91821
State of Missouri v. David Delaine Liberty
Platte County
Challenge to child pornography conviction

Listen to the oral argument:

Liberty was represented during arguments by Frederick J. Ernst of the public defender's office in Kansas City, and the state was represented by Daniel N. McPherson of the attorney general's office in Jefferson City.

David Liberty was charged with promoting and possessing child pornography. Police traced a comment on a website about children using sexual phrases to Liberty’s laptop computer. One of the comments on the site mentioned the model of laptop the user owned. On Liberty’s computer, investigators discovered nine photographs that they determined to be child pornography. Liberty waived his right to jury trial and was convicted of one charge of promoting child pornography and eight counts of possessing child pornography. He was sentenced to a total of 36 years in prison. Liberty appeals.

Liberty argues the trial court erred in convicting him of promoting child pornography because the material he posted did not depict sexual conduct. He contends that his due process and fair trial rights were violated because the state’s evidence was insufficient. Liberty asserts that his conviction violates double jeopardy because he was charged and sentenced separately for each photograph in the series. Finally, he argues that because the photographs did not depict acts of sexual stimulation or physical contact, they do not fall in the definition of child pornography.

The state responds that the trial court correctly convicted Liberty because the material it entered into evidence described the physical contact that caused him sexual stimulation and gratification. It argues that the wording of the material Liberty posted online only can be read as depicting sexual conduct. The state contends the court did not violate double jeopardy by convicting and sentencing Liberty on eight separate counts because the statute allows a person to be convicted for each item of child pornography in the person’s possession. Finally, the state asserts the photographs admitted into evidence constitute child pornography because the nature of the positions and the circumstances under which the photographs were taken are sufficient to prove they were designed to cause sexual stimulation and gratification.

SC91898
Robert L. Bateman, et al., James K. Owens, et al. v. Platte County, Missouri
Platte County
Challenge to declaration of private road

Listen to the oral argument:

The property owners were represented during arguments by James Bowers of White Goss Bowers March Schulte & Weisenfels in Kansas City, Bateman was represented by Jonathan Sternberg of Jonathan Sternberg, Attorney PC in Kansas City, and Platte County was represented by Robert H. Shaw of Platte City.

Bridle Parc Estates is a subdivision built in the 1980s with several plats sold to individual property owners. Prior to the estates’ existence, the land was owned by four separate property owners. Three of the owners had granted the fourth an easement over their property so that the fourth could access Mace Road from his property. When the estates were built, roads were included in each plan that followed the original easements granted over the property and that were dedicated to the new property owners. The property owners who succeeded the original four have individually maintained the roads, which lead only to the private residences of Bridle Parc Estates. James Owens, who owns property in Bridle Parc, began developing his property into residential and potential commercial properties. Robert Bateman, another property owner in Bridle Parc, asked Platte County to declare the road private, but instead it declared the road public. Bateman sued the county, asking the circuit court to declare Bridle Parc Lane a private road and to prevent commercial use of the road by Owens’ developments. Other Bridle Parc property owners later joined the action. The court found that the original land owner never granted his easement to the public and that the easements passed by deed were never continuous with any public road. It further found that the public had not used the road sufficiently to create a prescriptive easement. Bateman appeals.

Bateman argues the trial court correctly ruled that the statute of limitations did not bar this action. He contends the property owners failed to properly raise this issue at trial by not identifying what statute was violated. He asserts that the statute of limitations did not start running until there was a controversy ripe for determination, and there was no controversy until this action was filed. Bateman argues the trial court correctly declared Bridle Parc Lane a private road because it had not been dedicated to public use, the public had not obtained a prescriptive easement and the public never maintained the road.

The property owners respond that the trial court incorrectly declared Bridle Parc Lane to be a private road because, by statute, the road was dedicated to public use. They argue that any easements overlapping Bridle Parc Lane were not exclusive. They contend that Bateman’s predecessors intended the lane to be for public use, the public has used the road for more than 10 years and the public had accepted the road for public use. The property owners further argue a prescriptive easement was created by the public’s adverse use of the road for more than 10 years and the easement holders’ failure to stop such use. The property owners also contend that the statute of limitations prohibits this suit because it was filed 25 years after the recording of the lane for public use, which exceeds the 10-year limit for such lawsuits.

Platte County argues the trial court incorrectly ruled that Bridle Parc Lane was a public road because the road statutorily was dedicated to public use, the property owners agreed to the dedication, the public used the road and public money does not have to maintain property for it to be dedicated to public use. The county contends that Bateman’s predecessors intended for the road to be for public use. It also asserts that a prescriptive easement was created by the public’s use of the road, to which Bateman had not taken preventive action. The county further contends that the statute of limitations should have barred Bateman’s claim.

SC91209
State of Missouri v. Michael Andrew Tisius
Boone and Randolph counties
Direct appeal of death sentence

Listen to the oral argument:

Tisius was represented during arguments by Jeannie Willibey of the public defender's office in Kansas City, and the state was represented by Richard A. Starnes of the attorney general's office in Jefferson City.

In June 2000, Michael Tisius was incarcerated in the Randolph County jail in a cell with Roy Vance, who was facing a life sentence. Vance apparently convinced his girlfriend and Tisius to help him escape from jail. After Tisius was released from the jail, he took a gun the girlfriend had taken from her parents’ house and went to the jail, where Tisius shot and killed two deputies on duty at the time but failed to free Vance. He was arrested, admitted to the shootings and was charged with two counts of first-degree murder. Tisius was convicted and sentenced to death. This Court affirmed the conviction and sentence. State v. Tisius, 92 S.W.3d 751 (Mo. banc 2002). Tisius subsequently sought post-conviction relief. Ultimately, this Court affirmed Tisius’ conviction but ordered a new sentencing phase trial. Tisius v. State, 183 S.W.3d 207 (Mo. banc 2006). At the new sentencing phase of the trial, the state admitted evidence over defense counsel’s objection that Tisius possessed a shank (homemade knife) in jail while awaiting retrial. He again was sentenced to death. Tisius appeals.

Tisius argues the trial court abused its discretion in overruling his objection to admission of the shank evidence because it violated his rights to due process, a fair trial, to be free from cruel and unusual punishment and it prejudiced the jury toward him. He contends that the trial court incorrectly overruled his objections to certain cross-examination by the state because the prosecutor’s questions prejudiced the jury toward Tisius and led the jury to believe his psychological diagnoses were unreliable. Tisius asserts the court should have intervened in the state’s closing argument when the prosecutor stated that Tisius forfeited his right to ask for mercy, that the victims’ families wanted the death penalty, and that the death penalty would protect guards and other inmates from harm because these statements were prejudicial. He further argues the court improperly instructed the jury as to sentencing because the instructions given did not mention mitigating or aggravating circumstances, which prevented the jury from considering evidence important to sentencing and defense against the death penalty. Tisius contends the instructions did not contain the proper burden of proof for the death penalty, effectively placing on him a burden to prove he was eligible for a life sentence. He asserts that the state failed to provide the jury with facts relating to or charging him with aggravated first-degree murder, which is the only offense that qualifies for the death penalty in Missouri. Finally, Tisius argues the trial court erred by accepting the jury’s verdict recommending death and not reducing it to life without the possibility of probation or parole.

The State responds that the trial court correctly admitted the complaint including mention of the shank because it was admissible as a public record and constituted an admission by Tisius. The state contends that its cross-examination was proper because it sought to elicit legally and logically relevant evidence and that Tisius did not suffer prejudice as a result. It asserts its closing argument did not cause Tisius injustice or contain any impermissible statements. The state responds that the jury instructions contained all of the information necessary to determine sentencing, even if the words “mitigating” and “aggravating” circumstances were not mentioned specifically. The state contends Missouri law does not support Tisius’ claim that the state has to prove mitigating circumstances. It further asserts that aggravating circumstances are not required to charge a defendant with the offense of aggravated first-degree murder and that there was no error in Tisius’s conviction. Finally, the state responds that Tisius’ sentence must be upheld because he was not prejudiced, the evidence supports aggravating circumstances and the sentence is not disproportionate to the crime.