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Case Summary for October 2, 2013


Attached to the following docketed cases are electronic copies of briefs filed by the parties. These electronic briefs have been converted to PDF to accommodate various word processors. If you do not already have Acrobat reader, which is necessary to open the PDFs, you may obtain it free at the Adobe website. (A set of free tools that allow visually disabled users to read documents in Adobe PDF format is available from These briefs do not reflect any opinion of the Court about the appropriateness of the format of the briefs or the merits of the case, nor are they official court records. Copies of all briefs filed with the Court are available at the Supreme Court Building in the court en banc division.

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


9:30 a.m. Wednesday, October 2, 2013


State of Missouri v. Denford Jackson
St. Louis city
Challenge to incomplete trial court transcript, instructional issue

Listen to the oral argument: SC93108.mp3
Jackson was represented during arguments by Andrew E. Zleit of the public defender's office in St. Louis, and the state was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City.

Denford Jackson was convicted of first-degree robbery and armed criminal action for holding what was believed to be a gun on an employee of and taking money from the Laclede Coffee Shop in August 2009. At trial, the recording equipment failed and certain portions of the trial were not recorded, including the cross-examination of the employee and the testimony of the only other witness. Jackson proffered a jury instruction for second-degree robbery, but the trial court denied the suggested instruction. Jackson was found guilty and was sentenced to 30 years in prison for first-degree robbery and 10 years for armed criminal action. Jackson appeals.

Jackson argues the trial court erred in overruling his motion to vacate his convictions and sentences. He contends the court reporter failed to prepare a complete transcript, noting the transcript did not contain the entire cross-examination of the employee or the only other witness to the crime. Jackson asserts the incomplete transcript prevents this Court from reviewing his claims, which prejudices him. He argues the transcript omissions violated his rights to due process, access to the courts and meaningful appellate review, as well as his fifth and 14th amendment rights. Jackson contends the trial court erred in not providing or allowing submission of a jury instruction on a lesser charge of second-degree robbery. He asserts the failure to instruct on second-degree robbery violated his rights to due process, present a defense and a fair trial, as well as his fifth, sixth and 14th amendment rights.

The state responds the trial court did not err in overruling Jackson’s motion to vacate his convictions and sentences. It argues Jackson was not prejudiced by the errors and omissions in the transcript. The state contends nothing material was lost by the omissions, so they do not warrant a new trial. It asserts the trial court also did not err in refusing to provide or allow a jury instruction on the lesser charge of second-degree robbery. The state argues that the trial court is not required to instruct regarding a lesser-included charge simply upon request but that there must have been some basis on which Jackson would have been acquitted of first-degree robbery. It contends no such basis was present.


State of Missouri v. Nicholas Robert Hillman
Warren County
Challenge to search and seizure, denial of defense, incomplete transcript

Listen to the oral argument: SC93435.mp3
Hillman was represented during arguments by N. Scott Rosenblum of Rosenblum, Schwartz, Rogers & Glass PC in St. Louis, and the state was represented by Jennifer A. Rodewald of the attorney general's office in Jefferson City.

Nicholas Hillman was convicted of distributing a controlled substance to a minor and attempted second-degree statutory sodomy. The minor did not report the incident for nearly a month. When law enforcement went to question Hillman regarding the incident, they searched his home without a warrant and discovered marijuana. At trial, Hillman failed to endorse certain witnesses before the deadline and, as a sanction, was prevented from calling those witnesses. Hillman was convicted and ultimately was sentenced to five years in prison for the controlled substance charge and four years for the sex offense. Hillman was ordered to carry out his sentence in the state’s sex offender assessment unit pursuant to section 559.115, RSMo. Hillman appeals.

Hillman argues the trial court abused its discretion in refusing to allow him to present a specific defense and in suppressing evidence seized from his home. He contends he should have been permitted to present the defense that he did not commit the crimes and to call witnesses at trial to support this defense. Hillman asserts the marijuana seized from his home was obtained without consent to search the home, a warrant or exception to the warrant requirement, which violated his right to be free from unreasonable searches and seizures. As such, he argues the evidence of the marijuana should have been suppressed at trial. Hillman contends the transcript of the trial is incomplete and prevents sufficient appellate review of his case, which violates his right to due process. He asserts section 559.115 – making him ineligible for the sex offender treatment program once his appeal was filed – contradicts another provision requiring him to participate in the program. Hillman also argues that similar programs are available to other types of offenders, which creates an equal protection violation to sex offenders.

The state responds the trial court did not abuse its discretion in refusing to allow Jackson to present a specific defense and in suppressing the evidence seized from his home. It argues that Jackson failed to disclose his defense at the appropriate time, resulting in surprise to the state, and that he failed to explain the late disclosure and the content of the proposed testimony. The state contends Jackson failed to object to admission of the marijuana evidence and consented to the search of his home. It asserts Jackson did not suffer manifest injustice or prejudice from admission of the evidence. The state argues that Hillman was not denied sufficient review due to the omissions in the transcript and that he did not attempt to obtain the missing portions. It contends the record allows an adequate basis for review. The state asserts section 559.115 does not violate equal protection because it does not distinguish between sex offenders and other offenders or impinge on a fundamental right.


Blue Springs R-IV School District, et al., Mark Cromwell and James Bradshaw, Ronald Hammons, Misty Rigdon, Jacque Gragg, Spencer D. Fields, and Phillip Holloway v. School District of Kansas City, Missouri, State of Missouri, Attorney General Chris Koster, and Missouri State Board of Education
Jackson County
Transfer plans for unaccredited school districts

Listen to the oral argument: SC92932.mp3
The school district of Kansas City, the state and the Missouri Board of Education were represented during arguments by J. Andrew Hirth of the attorney general's office in Jefferson City, and the Blue Springs school district and the taxpayers were represented by Duane A. Martin of Guin Martin Mundorf LLC in Columbia.

The Kansas City public school district lost its accreditation in January 2012. Under section 167.131, RSMo, an unaccredited school district must pay the tuition for any resident student who chooses to attend an accredited school in another district in the same or an adjoining county. The statute also states tuition should based on the per-student cost of maintaining the receiving school district’s grade level grouping. Seven taxpayers from the Blue Springs school district filed a petition to declare section 167.131 an unfunded mandate under article 10, sections 16 and 21 of the state constitution, known as the Hancock amendment. The Hancock amendment prohibits passing new mandates that are unfunded. The circuit court granted partial summary judgment to the taxpayers, finding that the statute did impose a new duty on the area school districts, that the state had not made an appropriation to compensate for the mandate and that a telephone survey of current students evidenced an increase in student population for neighboring school districts. The court then calculated and compared the costs the Blue Springs school district claimed it would incur with the amount of tuition it could charge the public school district for transfer students, using the telephone survey. The circuit court declared section 167.131 unconstitutional to the extent it found that costs would exceed tuition in Independence, Lee’s Summit and North Kansas City schools but constitutional to the extent if found that costs would not exceed tuition in Blue Springs and Raytown schools. The circuit court also awarded attorney fees to the taxpayers. The state appeals the circuit court’s award of partial summary judgment regarding the validity of section 167.131. The taxpayers' cross-appeal the circuit court’s findings that section 167.131 is constitutional as applied to Blue Springs.

State’s argument

The state argues the circuit court erred in entering judgment in favor of the taxpayers. It contends the taxpayers failed to state a claim because section 167.131 merely shifts financial responsibilities between political subdivisions and is not a mandate. The state asserts the taxpayers failed to prove the statute increases net costs to the school districts because the increases they predict are based on a flawed study. It argues the taxpayers did not base their predicted increases on the percentage of public school students who increase costs through poverty, disability or limited English proficiency. The state contends the tuition formula includes debt service (principal and interest paid on general obligation bonds) that more than exceeds the new capital expenditures, including mobile classrooms, furniture, fixtures and equipment. It asserts the school districts are not completely excused from complying with the statute because article 10, section 21 of the state constitution only excuses duties when they are not funded, not merely when funding may become inadequate. The state argues the taxpayers failed to prove the proportion of funding provided by the state in 1980, additional funding the state has appropriated since then, mandates and duties imposed since 1980, and how state funding has increased since 1980. It contends the attorney fees awarded to the taxpayers were unreasonable.

The taxpayers respond the circuit court correctly entered judgment in their favor. They argue the imposition of section 167.131 does constitute a mandate. The taxpayers contend they proved the state did not make appropriations and that there is not funding to cover costs associated with the mandate. They assert they proved the statute will impose increased costs on the school districts. The taxpayers argue the statute imposes new activities on the school districts and, therefore, the taxpayers were not required to prove decreases in state funding from 1980 until the present. They contend that the amount of attorney fees calculated is correct and that the case should be remanded to award those fees.

Taxpayer’s argument

The taxpayers argue the circuit court erred in finding for the state regarding the validity of section 167.131 under the Hancock amendment. They contend the circuit court improperly conducted a net cost analysis in considering the Hancock claim. The taxpayers assert section 167.131 imposes a new requirement to admit out-of-district students without state funding that cannot be fully recovered through tuition. They argue the decision in Gina Breitenfeld v. School District of Clayton, et al., State of Missouri and Chris Koster, 399 S.W.3d 816 (Mo. 2013), does not answer the questions raised here. The taxpayers contend they proved the statute imposes increased costs on the school districts.

The state responds the circuit court correctly found the state had a valid Hancock amendment claim. It argues that Breitenfeld precludes (prevents ruling on) the taxpayers’ Hancock claim and controls the outcome of this case. The state contends the taxpayers’ claim in this case is the same as the claim in Breitenfeld. It asserts the court correctly conducted a net-cost analysis because the Hancock amendment does not require all newly mandated activities to be paid through new appropriations. The state argues the taxpayers failed to prove the school districts will incur increased costs beyond tuition amounts. It contends the calculations based on current debt service are not actual costs the school districts will incur by educating transfer students. The state asserts the taxpayers calculations assume there are no students currently receiving assistance in the districts due to poverty, disability or limited English proficiency.



Lillian M. Lewellen v. Chad Franklin and Chad Franklin National Auto Sales North, LLC
Clay County
Challenge to reduction of punitive damages

Listen to the oral argument: SC92871.mp3
Lewellen was represented during arguments by Douglass F. Noland of the Noland Law Firm LLC in Liberty, and Franklin and National Auto Sales were represented by Patric S. Linden of Case & Roberts PC in Kansas City.

Lillian Lewellen purchased a car from National Auto Sales, owned by Chad Franklin, according to an advertised deal. The deal was explained to her as a five-year program in which she would pay $49 each month, receive a check for the amount of any difference, then trade the car for a new car at the end of a year and continue to make $49 monthly payments. The auto company sent Lewellen a check to cover a portion of the difference in the monthly payments for the car but not for the entire year. After the bank repossessed the car and sent Lewellen’s account to collections, she filed suit against the auto company. Before trial, the trial court found Franklin had failed to appear for depositions and granted Lewellen’s motion for sanctions. The court struck the auto company’s pleadings, prevented the company and Franklin from introducing evidence at trial and ruled that any documents obtained from the auto company and Franklin could be admitted only against them. The jury awarded Lewellen $50,000 in actual damages for fraudulent misrepresentation and unlawful merchandising practice, as well as $2 million in punitive damages, which the trial court later reduced pursuant to section 510.265, RSMo. Section 510.265 states that punitive damages should not exceed $500,000 or five times the net judgment. Lewellen appeals the reduction of punitive damages. The auto company and Franklin cross-appeal the motion against them for sanctions as well as the overruling of their motions for new trial and to amend the judgment.

Lewellen’s argument

Lewellen argues the trial court erred in reducing her punitive damages award. She contends section 510.265 violates her right to a trial by jury because her right is not protected when the jury’s verdict is subject to statutory limitations. Lewellen asserts the statute violates separation of powers because it infringes on the judiciary’s role of deciding and pronouncing judgments by mandating the amount of damages rather than basing it on the evidence. She argues the statute violates her right to equal protection because she has a fundamental right to a trial by jury and there is no compelling state interest to restrict jury assessment of damages, nor rational relationship in limiting punitive damages for a legitimate end. Lewellen contends the statute violates her right to due process because it changes the substantive law governing common law fraudulent misrepresentation and creates a mathematical bright line rule, which eliminates due process review of the jury’s punitive damage award.

The auto company and Franklin respond that the trial court did not err in reducing Lewellen’s punitive damages award. They argue the statute does not violate her right to a trial by jury because the United States Constitution protects against excessive punitive damages and Lewellen’s right yields to this federal right. The auto company and Franklin contend the statutory limit on punitive damages does not restrict the jury because the statute applies following the jury’s role at trial and does not impact the jury’s process for determining punitive damages. They assert the statute does not violate separation of powers because it is an appropriate exercise of the legislature’s authority to modify or limit causes of action and establish penalties for wrongful conduct without affecting the judicial function. The auto company and Franklin argue the statute does not violate Lewellen’s equal protection right because it meets the requirements of due process and Lewellen failed to properly preserve this argument for appeal. They contend the statute does not violate Lewellen’s right to due process because the legislature has the authority to modify common law causes of action and remedies as well as set limits on punitive damages.

Franklin and National Auto Sales’ argument

The auto company and Franklin argue the trial court erred in granting Lewellen’s motion for sanctions against it as well as in overruling its motions for a new trial and to amend the judgment. They contend the trial court failed to specify the discovery sanction it was imposing on it for presentation of evidence and argument at trial and to provide adequate notice of sanctions. The auto company and Franklin assert their counsel was unable to adequately prepare for trial due to the lack of proper notice. They argue the punitive damages assessed against them violate their right to due process because the evidence at trial did not support more punitive damages than a single-digit ration of the actual damages. The auto company and Franklin contend the punitive damages award is excessive pursuant to case law.

Lewellen responds the trial court correctly imposed sanctions against the auto company and Franklin, as well as overruled their motions. She argues the auto company’s and Franklin’s participation at trial demonstrated preparation in accordance with the sanctions imposed. Lewellen contends the punitive damages should not have been reduced because they are not excessive under due process standards. She asserts the auto company’s and Franklin’s conduct was reprehensible and the low amount of actual damages, coupled with their conduct, supports an award above the single-digit ratio. Lewellen argues the punitive damages award is not excessive.


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