Case Summary for November 29, 2016

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Case Summary for November 29, 2016

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.

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 access.adobe.com.) 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 Case.net.

Note of 9:10 a.m., November 29: It is with great sadness that the Supreme Court of Missouri acknowledges the passing of its beloved colleague, Judge Richard B. Teitelman, who began his service on the state’s high court in March 2002 and served as its chief justice from July 2011 through June 2013. He was 69. In honor of Judge Teitelman, the Court has cancelled oral arguments scheduled for today.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Tuesday, November 29, 2016
____________________________________________________________________________________________________

SC95538 -- Note: This case has been rescheduled for argument March 7, 2017.
Cary Newsome v. Kansas City, Missouri School District
Jackson County
Challenge to judgment awarding damages for wrongful termination in violation of public policy

Cary Newsome’s employment with the Kansas City school district ended in June 2011. He subsequently filed a discrimination complaint with the federal equal employment opportunity commission and the state’s human rights commission. The district sent notice of Newsome’s discrimination charges to its insurer. Newsome ultimately sued the district for wrongful termination, alleging discriminatory termination, retaliatory termination in violation of the state’s human rights act and retaliatory termination in violation of public policy because he was a whistleblower. Prior to trial, both parties briefed the issue of whether the school district had sovereign immunity from suit or whether it had waived such immunity by virtue of its insurance coverage. At trial, Newsome testified he had been named purchasing manager in September 2009. He testified he was terminated after exchanges with the district’s chief finance officer regarding a consultant exceeding the work described in the consulting contract and regarding the purchase of certain vehicles Newsome testified did not follow district policy. As to Newsome’s claims for discriminatory termination and retaliatory termination in violation of the state’s human rights act, the jury found in the district’s favor. As to Newsome’s claim for retaliatory termination in violation of public policy, the jury found in Newsome’s favor and awarded him $500,000 in damages. The circuit court entered its judgment accordingly and overruled the district’s post-judgment motions for judgment notwithstanding the verdict, for a new trial or for remittitur (reduction of the jury’s damages award). The district appeals.

This appeal raises several questions for this Court. One involves whether Newsome presented substantial evidence – in support of his claim for wrongful termination in violation of public policy – that he refused to violate a law or mandate, or that he reported wrongdoing or legal violations to superiors or public authorities. Another question involves whether one of the jury instructions constitutes reversible error. A related issue involves whether Newsome was required to prove an actual violation of law or public policy or whether he was required to prove only that he reasonably believed certain transactions would violate law or public policy. Another issue involves whether the instruction failed to specify the factual and legal bases on which the jury could find the district liable. An additional question involves whether Newsome’s claim was barred by sovereign immunity or whether the district’s insurance policy waived or retained its sovereign immunity defense. Further questions involve whether state law limits the amount of damages a school district can be required to pay under the circumstances of this case, the effect of the district’s insurance policy on any statutory maximum and whether the circuit court should have reduced the damages award.

The Kansas City and St. Louis chapters of the National Employment Lawyers Association filed a brief as a friend of the Court. The chapters focus their arguments on whether Newsome presented substantial evidence in support of his wrongful discharge claim, including evidence he was a whistleblower, and the propriety of the jury instruction regarding Newsome’s claim for wrongful discharge in violation of public policy.

SC95538_Kansas_City_School_District_brief.pdf

SC95538_Newsome_brief.pdf

SC95538_Kansas_City_School_District_reply_brief.pdf

SC95538_KC_STL_Chapters_Natl_Employment_Lawyers_Assoc_amici_brief.pdf

SC95707 -- Note: This case has been rescheduled for argument February 9, 2017.
Robert Hurst v. Nissan North America Inc.
Jackson County
Challenge to damages and attorney fees awarded in class action lawsuit

Nissan North America Inc. manufactured, from 2003 through 2008, a vehicle called the Infiniti FX. Beginning in September 2005, Nissan began to receive warranty claims based on a “bubbling” issue in the dashboards of FX vehicles, after which it changed its dashboard supplier. The parties dispute whether the newer dashboards had the same propensity to bubble. Nissan also alleged it extended the warranty for the dashboard, reimbursed customers who had paid to repair or replace a dashboard, and offered free replacement dashboards to customers who experienced problems. In December 2009, Robert Hurst sued Nissan on behalf of himself and other members of an alleged statewide class. Litigation ensued regarding the scope of the class. The circuit court ultimately certified a class of Missourians who had purchased, in Missouri, an Infiniti FX34 or FX45, model years 2003 through 2008, through Nissan’s distribution system and who, at the time the suit was filed, owned the subject vehicle with the dashboard installed as original manufacturer’s equipment. The certified class included new-car purchasers as well as secondary purchasers, so long as they had purchased the subject vehicle from a Nissan- or Infiniti-branded dealer. At trial, Hurst sought damages for violations of the state’s merchandising practices act and attorney fees. Specifically, Hurst alleged Nissan made misrepresentations under the act when it advertised the FX as a “premium” or “luxury” vehicle (and similar statements emphasizing the vehicle’s quality). Nissan argued many of the class members either never experienced bubbling dashboards or had been given free replacement dashboards as a result and, therefore, had not suffered ascertainable loss. The jury returned its verdict holding Nissan liable under the merchandising practices act and requiring it to pay $2,000 to every class member. The circuit court determined the final class had 326 members and, in March 2015, entered its judgment in accordance with the verdict, requiring Nissan to pay $625,000 in damages. It also awarded $1.9 million in attorney fees. The circuit court overruled Nissan’s motions for judgment notwithstanding the verdict, for a new trial and to decertify the class. Nissan appeals.

This appeal presents several questions for the Court involving whether Hurst made a submissible case under the state’s merchandising practices act. One question is whether Hurst made a submissible case that Nissan’s advertising statements that the FX was a “luxury” or “premium” vehicle (and similar statements) constituted actionable factual statements or misrepresentations or were “puffery” that would preclude Hurst’s claim. Another question involves whether Hurst established a submissible case of ascertainable loss. Related issues involve whether Hurst introduced competent evidence supporting his theory that the bubbling dashboards gave the vehicle a “stigma” and whether class members experienced dashboard bubbling or were denied a free replacement dashboard if they did. Additional questions involve whether the circuit court should have granted Nissan a new trial. A related issue includes whether one of Hurst’s witnesses was an expert and whether he should have been permitted to testify at trial about whether class members had suffered damages. Other issues involve whether the circuit court should have excluded testimony by witnesses who were not members of the class or by individual owners about alleged future reductions in the value of their vehicles. Additional issues involve whether the verdict-directing instruction failed to identify any specific misrepresentation that Nissan allegedly made, failed to require the jury to identify a misrepresentation and failed to require the jury to identify a resulting ascertainable loss for all class members across every model year. Further questions involve whether the circuit court erred in certifying the class or should have decertified the class. Related issues involve whether class members predominantly shared common issues of fact and law, whether certain asserted misrepresentations or injuries applied only to certain class members, and whether owners who received replacement dashboards or secondary purchasers should have been included in the class. A final question involves whether the circuit court should have awarded attorney fees.

The attorney general filed a brief as a friend of the Court. He focuses his arguments on questions of first impression in this Court of whether “misrepresentation” or “deception” under the state’s merchandising practices act should be defined to exclude puffery and opinions, whether puffery is or should be a defense to a claim under the act, and whether the act requires a consumer to rely on alleged misrepresentations or to be reasonable in such reliance.

SC95707_Nissan_North_America_brief.pdf

SC95707_consumers_brief.pdf

SC95707_Nissan_North_America_reply_brief.pdf

SC95707_Attorney_General_amicus_brief.pdf

SC95771 -- Note: This case has been rescheduled for argument February 9, 2017.
Keith Jackson v. Dennis J. Barton III
St. Louis County
Challenge to dismissal of lawsuit against debt collector

Keith Jackson received certain dental treatments from LifeSmile Dental Care between June 2011 and April 2012. In September 2013, attorney Dennis Barton III sued Jackson on behalf of LifeSmile, seeking to recover approximately $460 in unpaid dental bills plus interest, attorney fees and court costs. Jackson responded that he did not sign the form contract on which the debt collection suit relied and that he did not owe the purported balance to LifeSmile. The case was set for trial in 2014. Jackson appeared by counsel at trial to defend against the suit. Barton did not appear, and the case was dismissed for failure to prosecute. Barton subsequently sent Jackson a written demand for payment of approximately $550 and then asked the circuit court to reinstate his debt collection suit. In January 2015, Jackson sued Barton, alleging violations of the federal fair debt collection practices act and the state merchandising practices act. In August 2015, the circuit court entered its judgment granting Barton’s motion to dismiss the suit with prejudice (precluding Jackson from refiling his suit). Jackson appeals.

This case presents several questions for this Court. One involves whether Jackson’s claim under the federal act was barred by the one-year statute of limitations or whether Barton committed multiple discrete collection actions within the year before Jackson filed his petition. Related issues include when a “violation occurs” under the federal act; when a debt collector has the “last opportunity to comply” with the federal act; and what effect, if any, there was on the statute of limitations when Barton did not appear for trial on his original debt collection suit, subsequently mailed Jackson the letter demanding payment or then sought to reinstate the underlying debt collection suit. Another question involves whether the circuit court should have dismissed Jackson’s petition with prejudice. Related issues involve whether Barton’s motion to dismiss was treated as a motion for summary judgment (judgment on the court filings, without a trial) and whether Jackson pleaded sufficient facts in his first amended petition to justify tolling (pausing) the statute of limitations until his damages fully were capable of being ascertained. An additional question involves whether Jackson stated a claim under the state act. Related issues involve whether a debt collector’s activities are “in connection with” the sale of the original service that created the debt obligation and whether debt collectors are excluded from the state act.

SC95771_Jackson_brief.pdf

SC95771_Barton_brief.pdf

SC95771_Jackson_reply_brief.pdf

SC95719 -- Note: This case has been rescheduled for argument January 11, 2017.
State of Missouri v. Phillip Douglass and Jennifer M. Gaulter
Jackson County
Invalidation of search warrant and suppression of items seized in search

A woman met with Phillip Douglass and Jennifer Gaulter in a Kansas City hotel room before calling her boyfriend to pick her up and take her home. The next morning, while the woman was at work, she received a text message from Gaulter advising that the woman had left her bag in the room and that Gaulter would leave the bag at the hotel’s front desk. When the woman returned home from work, she found that her apartment had been broken into and that certain items – including designer purses, a laptop and jewelry – had been stolen. She called the hotel and asked an employee to look in her bag for keys; the employee told her there were no keys in the bag. The woman then texted Gaulter about the theft and missing keys; Gaulter did not respond. When the woman went to the hotel, an employee told her the bag already had been retrieved. Based on information the woman provided, a Kansas City police detective applied for a warrant to search the home shared by Douglass and Gaulter. The warrant had a preprinted section listing five types of items that could be seized, with a box next to each type to denote if there was probable cause to search for and seize that type of item. All five boxes – including the one for “deceased human fetus or corpse, or part thereof” – were checked. In the search, law enforcement officers seized a laptop, certain purses and women’s accessories. The state subsequently charged Douglass and Gaulter with second-degree burglary and stealing property valued between $500 and $25,000. Douglass and Gaulter moved to suppress the evidence seized in the search, challenging the warrant based in part on the check next to the box for “deceased human fetus or corpse.” The detective testified about why he had checked all five boxes, even though he had no reason to believe the home would contain a dead body or part of one. The circuit court sustained the motions to suppress, finding the warrant was invalid because the detective intentionally checked the box stating probable cause existed to search for a “deceased human fetus or corpse, or part thereof” when he knew that statement to be false. The circuit court excluded all evidence seized pursuant to the warrant as a result. The state appeals.

This appeal presents several questions for this Court. One involves whether the circuit court should have severed the warrant into its parts and stricken only the “corpse clause” that was not supported by probable cause. A related issue involves whether the state and federal constitutions permit such “redaction” of an invalid element of a search warrant, especially if that element was included in bad faith, and whether bad faith exists here. Another question involves whether the detective’s conduct in checking the box pertaining to dead bodies was misconduct warranting application of the exclusionary rule to suppress the evidence seized under the warrant. A further question involves whether other reasons exist to affirm the circuit court’s decision, including whether Kansas City officers executed the warrant in Blue Springs, outside their jurisdiction.

SC95719_State_brief.pdf

SC95719_Douglass_and_Gaulter_brief.pdf

SC95719_State_reply_brief.pdf

SC95877 -- Note: This case has been rescheduled for argument January 11, 2017.
State of Missouri v. Jeffrey L. Bruner
Jasper County
Challenge to refusal to submit self-defense instruction to jury

The state charged Jeffrey Bruner with first-degree murder and armed criminal action for the November 2013 shooting death of a man who was dating Bruner’s estranged wife. Bruner confronted the couple after they left a Joplin movie theater following a date. The wife reportedly told Bruner she did not need his permission to date, and the man she was with noted that the wife had moved out of the marital home. Bruner shot the man during an ensuing altercation, and the man died of multiple gunshot wounds. At trial, Bruner presented evidence that he was suffering from an acute stress disorder at the time of the shooting, that he had taken the gun because he was smaller than the other man and that he had shot the other man in self-defense. Bruner proposed the jury be given a self-defense instruction; the circuit court refused the proffered instruction. During closing arguments, the state argued Bruner acted out of anger rather than fear. The jury found Bruner guilty as charged and recommended sentences of life in prison without parole for murder and five years in prison for armed criminal action. The circuit court overruled Bruner’s motion for a new trial, entered judgment in accordance with the verdict and sentenced Bruner to serve the prison terms concurrently. Bruner appeals.

This appeal presents one question for this Court – whether the circuit court violated Bruner’s constitutional rights in not instructing the jury regarding self-defense. Related issues involve whether Bruner presented sufficient evidence for the jury to have found that Bruner was not the initial aggressor and had a reasonable belief that deadly force was necessary to protect himself.

SC95877_Bruner_brief.pdf

SC95877_State_brief.pdf

SC95877_Bruner_reply_brief.pdf