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Case Summary for December 3, 2014


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 a.m. Wednesday, December 3, 2014

In re the Marriage of: M.S. v. D.S.
St. Louis County
Authority of Missouri courts to dissolve same-sex marriage lawful in another state
Listen to the oral argument: SC94101.mp3SC94101.mp3
M.S. was represented during arguments by Drey A. Cooley of Capes, Sokol, Goodman & Sarachan PC in St. Louis; D.S. did not file a brief and so did not make an argument.

The Missouri legislature enacted section 451.022, RSMo, which provides that the state’s public policy is to recognize marriage only between a man and a woman and that a marriage between persons of the same sex will not be recognized for any purpose in Missouri even when it is valid where contracted. Missouri voters since approved article I, section 33 of the state constitution, which provides that, to be valid and recognized in Missouri, a marriage shall exist only between a man and a woman. In December 2012, M.S. and D.S. – two men who were and are Missouri residents – were married in Iowa under Iowa law, and their marriage is registered in Iowa. In August 2013, the parties separated due to irreconcilable differences. In January 2014, M.S. filed a petition for dissolution of marriage in the circuit court of St. Louis County, where he lived. The next month, the court dismissed the petition with prejudice (so that it cannot be refiled) after determining it lacked subject matter jurisdiction, constitutional authority and statutory authority to dissolve the parties’ marriage based on article I, section 33 and section 451.022. M.S. appeals.

M.S. argues the trial court erred in determining that it lacked subject matter jurisdiction to dissolve the parties’ marriage. He contends the trial court did have subject matter jurisdiction over the case because the petition stated a claim for dissolution of marriage, a civil law matter, and article V, section 14 of the state constitution gives the trial court jurisdiction over all civil matters. M.S. asserts that the trial court erred in determining it lacked constitutional and statutory authority to dissolve the parties’ marriage. He argues neither article I, section 33 of the state constitution nor section 451.022, RSMo, specifically removes the court’s authority to hear and rule on the dissolution petition, which he contends was filed by a lawfully married same-sex couple. He asserts that, to the extent the state constitution or statutes would preclude the trial court from dissolving his marriage, such provisions violate the due process and equal protection provisions of the federal constitution by denying him access to the courts to dissolve a lawful marriage, unlawfully infringing on his fundamental right to dissolution, and unlawfully discriminating against same-sex couples seeking to dissolve their marriages in Missouri.

D.S. did not file a brief in this case.

The American Academy of Matrimonial Lawyers argues, as a friend of the Court, that – like the right to marry and remarry – the right to divorce is a fundamental right protected by the due process and equal protection clauses of the 14th Amendment to the United States Constitution. The academy contends that denying same-sex married couples access to the courts for the purpose of seeking divorce is a denial of both due process and equal protection. The academy asserts that recent precedent in federal courts, the courts of other states and some Missouri courts supports a finding that article I, section 33 and section 451.022 are unconstitutional. The academy argues that there is no rational relationship between a public policy denying same-sex couples the right to marry and a prohibition barring such couples, married where such a marriage is legal, the ability to terminate that legal relationship in whatever state in which they reside. The academy contends that denying access to Missouri courts for the purpose of obtaining a divorce denies same-sex couples and their families access to important judicial relief, including the division of property and debt, the determination of child custody and child support, and the determination of spousal support.

The American Civil Liberties Union of Missouri Foundation, PROMO, KC LEGAL, the director of the Washington University Law School Child & Family Advocacy Clinic, the American Civil Liberties Union, and the Lambda Legal Defense and Education Fund argue, as friends of the court, that the circuit court erred in dismissing the petition, on its own motion, for lack of jurisdiction instead of analyzing, with the benefit of briefing by the parties, whether the petition stated a claim on which relief could be granted. The organizations contend that neither article I, section 33 nor section 451.022 prevents a circuit court from hearing an uncontested petition of dissolution involving the marriage of a same-sex couple. They assert the circuit court had the power to grant relief, even if it did not call that relief a “divorce.” The organizations argue that the due process right to obtain a divorce is distinct from the fundamental right to marry and, therefore, that Missouri’s marriage bans – even if otherwise constitutional – constitutionally cannot be applied to divorce proceedings. The organizations contend that, because the court dismissed the petition on its own motion, it did not give the parties the opportunity to challenge – and itself an opportunity to consider – the constitutional validity of the marriage bans.


Ben Hur Steel Worx LLC v. Director of Revenue
St. Louis
Applicability of manufacturing tax exemption to certain steel building components
Listen to the oral argument: SC94209.mp3SC94209.mp3
Ben Hur was represented during arguments by Marc H. Ellinger of Blitz, Bardgett & Deutsch LC in Jefferson City; the director was represented by Deputy Solicitor General Jeremiah J. Morgan of the attorney general's office in Jefferson City.

Ben Hur Steel Worx LLC provides structural steel building components – including columns, beams, trusses and frames – to its customers, which it may deliver and install on the customer’s premises. If the components are for a taxable entity, Ben Hur pays taxes on the materials it purchases from steel mills or warehouses to provide the steel components. If the components are for tax-exempt entity, Ben Hur does not pay tax on the purchased materials. Ben Hur sought refunds for nearly $199,000 in taxes it paid on purchases of these materials for the periods of March 2008 through February 2011, claiming a tax exemption pursuant to section 144.054.2, RSMo. In January 2012, the director of revenue denied the refund claims, determining they did not qualify for the exemption. Ben Hur sought review from the administrative hearing commission, which in May 2014 also denied the refunds. Ben Hur seeks this Court’s review.

Ben Hur argues the administrative hearing commission erred in holding that the company’s output was not a “product” as used in the statute. The company contends the structural steel it manufactures is a “product” because it is an output with a market value. It asserts that the structural steel output is significantly different from the materials Ben Hur purchased, with different uses, and that those products have a market value, whether Ben Hur installs them or sells them separately as tangible personal property. It argues there is no requirement in the statute that there be a market in which fabricated steel pieces regularly are bought or sold at retail. The company contends there also is no legal requirement that the company prove it modified steel beams and then sold them at retail. It asserts that, although a retail sale is not required, the record establishes the company sells some of its structural steel output in retail sales. Ben Hur argues the commission erred in applying the rationale of this Court’s 1997 decision in Blevins Asphalt Construction Company v. Director of Revenue. The company contends that this opinion does not apply to Ben Hur’s case. It asserts that Blevins construed a different, less broad tax exemption than that sought by Ben Hur and that reliance on Blevins is not appropriate after this Court’s 2011 decision in E & B Granite Inc. v. Director of Revenue.

The director of revenue responds that the commission correctly concluded that Ben Hur is not entitled to the tax exemption. The director argues the construction of a building does not qualify for a tax exemption under section 144.054.2 because it is not the “manufacturing, processing, compounding, mining or producing” of a “product.” The director contends that the plain language of the statute makes no reference to construction or building, that applying the statute to such projects would render the language of two other statutory tax exemptions effectively meaningless, and that turning section 144.054 into a construction exemption would produce unreasonable and absurd results. The director asserts Ben Hur never has treated its construction projects as manufacturing, processing or producing a product. The director responds that section 144.054.2 merely expands exempt items but does not expand the type of manufacturing activities covered. The director argues that applying section 144.054.2 to activities other than manufacturing is contrary to the legislature’s express intent and that construction of a building is not the type of industrial activity ordinarily associated with manufacturing a product. The director further contends that this Court’s decision in E & B Granite does not apply.

SC94209_Ben_Hur_brief.pdfSC94209_Ben_Hur_brief.pdfSC94209_Director_of_Revenue_brief.pdfSC94209_Director_of_Revenue_brief.pdf SC94209_Ben_Hur_Steel_reply_brief.pdfSC94209_Ben_Hur_Steel_reply_brief.pdf

State of Missouri v. Andrew Luke Lemasters
Newton County
Challenge to decision not to disqualify assistant prosecutor, request to correct judgment
Listen to the oral argument: SC94295.mp3SC94295.mp3
Lemasters was represented during arguments by William J. Swift of the public defender's office in Columbia; the state was represented by Adam S. Rowley of the attorney general's office in Jefferson City.

The state charged Andrew Lemasters with two identical counts of first-degree statutory sodomy. An assistant public defender entered her appearance on Lemasters’ behalf in August 2012; two months later, a private attorney retained by the public defender entered his appearance on Lemasters’ behalf. In February 2013, the private attorney filed a motion to disqualify the Newton County prosecutor’s office from Lemasters’ case. The motion alleged that, after the assistant public defender participated directly in representing Lemasters, she left the public defender’s office and took a job with the Newton County prosecutor’s office. Following a hearing, the trial court overruled Lemasters’ motion to disqualify the prosecutor’s office, and the case proceeded to a jury trial. Before the case was submitted to the jury, the state dismissed one of the two counts. The jury found Lemasters guilty, and the court sentenced him to 31 years in prison. Lemasters appeals.

Lemasters argues the trial court abused its discretion in overruling his motion to disqualify the prosecutor’s office. He contends that, in so ruling, the court denied his federal and state constitutional rights to due process and a fair trial. He asserts the trial court failed to apply the “appearance of impropriety” standard properly. Lemasters argues that, before she became an assistant prosecutor in Newton County, the former assistant public defender gave him legal advice about his case, made and memorialized in memoranda disparaging comments about his family and case, directed staff to record an interview with Lemasters after she spoke with him, and received confidential medical history about him from his mother that was used prominently at trial by both the prosecution and defense. Lemasters asserts this Court should reverse his conviction and direct the trial court to appoint a special prosecutor. Lemasters argues the trial court erred in entering a judgment convicting him of two counts of first-degree statutory sodomy, violating his constitutional rights to due process and to a jury finding of guilt as to all counts. He contends that, although he initially was charged with two counts, the state dismissed one count before the jury began deliberating, so the jury only could find him guilty of one count. He asserts this can be corrected with entry of a nunc pro tunc order (correcting a clerical error).

The state responds that the trial court did not abuse its discretion in not disqualifying the county prosecutor’s office. The state argues Lemasters’ former public defender was screened properly from Lemasters’ prosecution. It contends that this Court removed the appearance of impropriety standard from the ethical rules governing attorneys and that nearly all states that have considered the issue have rejected a per se rule requiring the disqualification of an entire prosecutor’s office based on an appearance of impropriety. The state asserts that, instead, this Court should apply a rule allowing a prosecutor’s office to continue with a case when the conflicted attorney has been screened properly from the prosecution. The state responds that a mere appearance of impropriety is an insufficient basis for vacating a conviction and that there was no appearance of impropriety in Lemasters’ case because his former public defender was not involved in prosecuting him and did not disclose to the prosecutor any information related to Lemasters’ case. The state agrees that the trial court’s written judgment contains a clerical error – stating that the jury convicted Lemasters of count I when, in fact, the record clearly indicates the state dismissed count I and the jury convicted Lemasters of count II. The state argues this Court should correct the error nunc pro tunc so as to conform the judgment to reflect these facts.

The Missouri Association of Prosecuting Attorneys argues, as a friend of the Court, that a rule requiring the blanket disqualification of an entire prosecutor’s office that has hired a former public defender would result in numerous special prosecutor appointments and would have a chilling effect on prosecutors’ future hiring practices. The association contends the Newton County prosecutor’s office complied with existing ethical rules relating to government attorneys.

SC94295_Lemasters_brief_for_web.pdfSC94295_Lemasters_brief_for_web.pdf SC94295_State_brief.pdfSC94295_State_brief.pdfSC94295_Lemasters_reply_brief.pdf


Shonda Ambers-Phillips and Richard Phillips II v. SSM DePaul Health Center
St. Louis County
Constitutional validity of “statute of repose” in medical negligence case
Listen to the oral argument: SC94322.mp3SC94322.mp3
The Phillipses were represented during arguments by Jeremy A. Gogel of The Gogel Law Firm in St. Louis; the health center was represented by Timothy C. Sansone of Sandberg Phoenix & Von Gontard in St. Louis.

Shonda Ambers-Phillips underwent surgeries at SSM DePaul Health Center following a September 1999 automobile accident. Due to abdominal pain, she underwent an exploratory laparotomy in June 2013 at a different hospital. During that surgery, she alleges that four foreign objects were found in her abdomen and that these objects had been left in her abdomen accidentally following a prior surgical procedure. In November 2013, she and her husband sued SSM DePaul for medical malpractice and related claims. In February 2014, the health center filed a motion to dismiss the suit. In May 2014, the circuit court dismissed the Phillipses’ petition, with prejudice (so that it cannot be refiled), holding it was barred by the 10-year statute of repose (a statute providing a date upon which a legal cause of action is extinguished, regardless of whether the action has accrued) in section 516.105, RSMo. The Phillipses appeal.

The Phillipses argue that the circuit court erred in dismissing their petition and that they should be allowed to proceed with their case. They contend section 516.105 violates a number of state constitutional provisions. They assert the statute violates the open courts provision and right to a remedy by denying citizens their right to bring a medical negligence action if the injury is not established until after the period of repose passes. They argue the statute violates due process on its face or as applied to Ambers-Phillips by barring an individual from bringing a case within any time period after the individual’s right to bring such a case has vested, leaving the individual no time to seek redress for damages. The Phillipses contend the statute violates equal protection. They assert that the statute arbitrarily and irrationally discriminates against certain victims of medical malpractice and that the state has no interest in barring malpractice claims before they vest. They argue section 516.105 violates the provision against creating special laws limiting civil actions. They contend that, even if it is not unconstitutional, the 10-year repose period in section 516.105 should be tolled (delaying or suspending the running of the time period).

The health center responds that the circuit court did not err in dismissing the case. It argues that the circuit court properly found the Phillipses lack a real and substantial constitutional claim and that this Court should affirm the judgment in light of the Phillipses’ failure to appeal the circuit court’s judgment in whole. The health center contends that this Court, explicitly or implicitly, already has decided the constitutional question they raise. The health center asserts that, in its 1991 decision in Blaske v. Smith & Entzeroth Inc. – a case involving another 10-year statute of repose – this Court rejected the same kinds of constitutional arguments the Phillipses raise. The health center responds that section 516.105 does not violate the state constitution. It argues the statute does not violate the open courts provision or right to a remedy because it merely eliminates a cause of action after 10 years rather than creating a condition an individual must meet before accessing the courts. The health center contends section 516.105 does not violate due process, either on its face or as applied to the Phillipses, because a statute of repose extinguishes a cause of action before it comes into existence, preventing it from accruing, and because a litigant does not have a vested property right in a cause of action before it accrues. The health center asserts that section 516.105 does not violate equal protection because the Phillipses have not proven it is not rationally related to a legitimate state interest. The health center responds that section 516.105 is not special legislation. It argues that a statute of repose applies to any action for damages for malpractice, error or mistake and that the state legislature had a rational basis for establishing a 10-year repose period. The health center contends statutes of repose are not subject to tolling because they constitute a judgment that a defendant should be free from liability after the legislatively determined period of time, beyond which liability no longer exists and will not be tolled for any reason.

SC94322_Phillipses_brief.pdfSC94322_Phillipses_brief.pdf SC94322_SSM_Health_Care_brief.pdfSC94322_SSM_Health_Care_brief.pdfSC94322_Phillipses_reply_brief.pdfSC94322_Phillipses_reply_brief.pdf

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