Case Summary for May 11, 2011

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Case Summary for May 11, 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. Wednesday, May 11, 2011

____________________________________________________________________________________________________

SC91454
Mike Weber, Paul Marquis, and Cathy Armbruster v. St. Louis County, IESI MO Corporation, Veolia ES Solid Waste Midwest, LLC, and Allied Services, LLC
St. Louis County
Challenge to validity of county waste management program
Listen to the oral argument:

The residents were represented during arguments by E. Robert Schultz of Schultz & Associates LLP of Chesterfield; the county was represented by St. Louis County Counselor Patricia Redington of Clayton; and the haulers were represented by Brian E. McGovern of McCarthy, Leonard & Kaemmerer LC of Chesterfield.

In 2006, St. Louis County enacted an ordinance establishing a waste collection program for unincorporated areas of the county. In 2008, the county contracted with IESI MO Corp., Veiolia ES Solid Waste Midwest LLC and Allied Services LLC (collectively, “haulers”) for waste collection in eight established collection areas. By October 2008, the program was implemented fully. In December 2009, county residents Cathy Armbruster, Paul Marquis and Mike Weber filed an amended class action petition against the county and haulers seeking damages and a declaratory judgment that the county ordinances establishing the waste collection program were illegal and void. The next month, the trial court granted the county’s and haulers’ motion to dismiss. The residents appeal.

The residents argue the trial court erred in dismissing their petition. They contend that without a county election, the ordinances and agreements establishing waste collection areas violate the county charter. They assert the county did not provide certified mail notice two years prior to implementing the program and displacing preexisting haulers, thereby violating section 260.247, RSMo. The residents argue they have standing to challenge the ordinance because they were prepared to prove they were residents of an “illegal monopoly trash district” required to pay for services or face criminal prosecution and because their taxes and service fees were used to design, carry out and enforce the program. They contend the doctrine of laches (unreasonable delay in acting) does not apply in this case. The residents assert their claims were not moot because the trial court had the power and authority to declare the collection areas and ordinances void and to order the return of monies paid by the residents. They argue they could recover damages because the haulers had been enriched unjustly by service fees paid by county residents. They contend the county violated the state’s merchandising practices act by making false statements about the legality of the ordinances and by imposing a monopoly trash service. Finally, they assert the voluntary payment doctrine does not apply under the merchandising practices act or when the payor pays under duress, which occurred here because the residents were under threat of criminal prosecution.

The county responds that the trial court correctly dismissed the residents’ petition. It argues the county charter does not require an election for implementing a waste management program. It contends it did not violate section 260.247 because the statute does not apply to the county and is wholly irrelevant to this case. Alternatively, the county contends that even if section 260.247 does apply, the residents lack standing to challenge the county’s compliance with the statute and, further, the county’s compliance with the statute is moot because the program already has been implemented fully. The county asserts the laches doctrine bars the residents from seeking relief.

The haulers respond that the trial court correctly dismissed the residents’ petition. They argue the county charter does not require an election for implementing a waste management program. They argue the residents lack standing to challenge the program and the county’s compliance with section 260.247. They assert the residents’ claims are moot because the program already has been implemented fully. They respond that the doctrine of laches bars the residents from seeking relief. The haulers argue the trial court properly dismissed the residents’ claims for damages because dismissal of the claim for declaratory action required the dismissal of all derivative claims and because the damages claims failed as a matter of law.

SC91539
St. Charles County v. Laclede Gas Company
St. Charles County
Existence of utility easements in subdivision plats
Listen to the oral argument:

Laclede Gas was represented by Booker T. Shaw of Thompson Coburn LLP of St. Louis, and the county was represented during arguments by Greg H. Dohrman of the St. Charles County counselor's office in St. Charles.

Laclede Gas Company is a publicly regulated utility company that provides natural gas service to residents of St. Charles County and neighboring counties. In 1987, 1997 and 2000, Laclede installed certain gas lines in the county because it believed subdivision owners granted Laclede utility easements by the terms of the subdivision plats. In September 2008, the county filed a petition seeking a declaratory judgment that Laclede is required to move the gas lines at its own cost so that the county may widen a section of road. Subsequently, both parties moved for summary judgment. In support of its motion, the county filed the affidavit of a county highway projects manager. Laclede filed a motion to strike the affidavit, which the trial court denied. In November 2009, the trial court denied Laclede’s motion for summary judgment and granted summary judgment in favor of the county. Laclede appeals.

Laclede argues the trial court erred in granting summary judgment in favor of the county. It contends that the subdivision plats granted Laclede easements and that any attempt by the county to force Laclede to move the lines without just compensation constitutes an illegal taking of Laclede’s property. Laclede asserts the trial court erred in admitting the affidavit of the highway projects manager because the plats were clear and unambiguous; therefore, extrinsic evidence (in addition to the plats themselves) was not admissible. Alternatively, Laclede argues that if the affidavit was admitted to interpret the plats because the plats were ambiguous, summary judgment was precluded as a matter of law.

The county responds that the trial court correctly entered summary judgment in its favor. It argues the subdivision plats did not grant Laclede easements but instead dedicated certain streets and roads for public use. Alternatively, it contends that any easements were void as against public policy and are superseded by the county’s police powers over its roads. Further, it asserts that the county’s acceptance of the alleged easements in the past is not at issue. The county responds that that the affidavit of the highway project manager was admissible to resolve facial ambiguities in the plats and, alternatively, the same result is reached even if the plats are clear and unambiguous. The county argues that Laclede did not preserve for appeal its argument that summary judgment was precluded as a matter of law. Finally, the county contends a supplemental affidavit filed by Laclede should not be considered.

The Missouri Energy Development Association argues, as a friend of the Court, that the trial court erred in granting summary judgment in favor of the county. It contends that the subdivision plats granted Laclede easements and that any attempt by the county to force Laclede to move the lines without just compensation constitutes an illegal taking of Laclede’s property. It asserts the trial court misapplied municipal franchise law to circumstances occurring in an unincorporated area of the county. The association argues the trial court’s judgment arbitrarily assigned more priority to the interests of the county than to those of Laclede.

The Missouri Municipal League argues, as a friend of the Court, that the trial court correctly granted summary judgment in favor of the county. It contends the land at issue is vested in (owned by) the county and not any private user, such as Laclede. It asserts public policy dictates that the county’s interest supersedes any other use or claim interest.

SC91571
Clarence Burgess v. State of Missouri
St. Louis County
Voluntariness of waiving right to post-conviction relief
Listen to the oral argument:

Burgess was represented during arguments by Timothy J. Forneris of the public defender's office in St. Louis, and the state was represented by Jayne T. Woods of the attorney general's office in Jefferson City.

In April 2008, Clarence Burgess pleaded guilty to one count of discharging a firearm at a building. At his plea hearing, Burgess waived his post-conviction rights. The trial court sentenced Burgess to 15 years in prison, suspended execution of the sentence and placed Burgess on probation for five years. In December 2008, after Burgess pleaded guilty to an unspecified charge, the court revoked Burgess’ probation and executed (required him to serve) the 15-year sentence. Burgess subsequently filed an amended motion for post-conviction relief and a motion requesting a change of judge. The circuit court denied both motions. Burgess appeals.

Burgess argues the circuit court clearly erred in dismissing his post-conviction relief motion. He contends he alleged facts showing he was denied his constitutional rights because his trial counsel’s interest in avoiding a finding of ineffective assistance of counsel, in protecting her reputation and in avoiding civil liability for malpractice were directly in conflict with Burgess’ interest in challenging his conviction and avoiding a lengthy term of imprisonment. Further, he contends his trial counsel pressured him into pleading guilty and did not meet with Burgess sufficiently for him to make a decision. He asserts this rendered his plea unknowing, unintelligent and involuntary. Burgess further argues the circuit court erred in denying his request for a change of judge because the judge who denied Burgess’ motions was the same judge who accepted his waiver of his post-conviction rights.

The state responds that the circuit court did not clearly err is dismissing Burgess’ post-conviction relief motion. It argues Burgess knowingly and voluntarily waived his right to seek post-conviction relief because, before his plea hearing, he executed a written waiver of that right in exchange for a suspended execution of sentence and five years probation. The state contends the circuit court did not abuse its discretion in denying Burgess’ motion for a change of judge because his motion was insufficient and failed to allege any extrajudicial source causing the circuit court to be biased or prejudiced against Burgess.

SC91440
In re: Lawrence Joseph Fleming
St. Louis city
Attorney discipline
Listen to the oral argument:

The chief disciplinary counsel was represented during arguments by Cheryl D.S. Walker of the chief disciplinary counsel's office in Jefferson City, and Fleming was represented by Mary Kathleen Justin, a solo practitioner in Kirkwood.

In November 2005, a criminal parolee hired St. Louis attorney Joseph Fleming to represent him in connection with a motion to recall the mandate (the court order that made final his conviction and sentence). In November 2006, Fleming informed the parolee that the motion was successful. Fleming never filed the motion.

In July 2008, Fleming informed another client that the client’s case against a bank had been settled and that the client soon would receive payment. Sometime later, after the client did not receive the settlement or any document evidencing a settlement, the client’s girlfriend filed a complaint against Fleming with the chief disciplinary counsel. In April 2009, Fleming asked the client sign a document confirming that the client’s girlfriend filed the complaint and withdrawing the complaint against Fleming. Later that day, the client telephoned the chief disciplinary counsel and said that Fleming coerced him into signing the letter. In May 2009, Fleming filed the client’s initial complaint against the bank. During the representation, Fleming loaned the client a total of $1,000.

In August 2010, the chief disciplinary counsel and Fleming entered into a joint stipulation. In October 2010, a disciplinary hearing panel adopted the stipulation and recommended that Fleming be placed on an indefinite suspension with leave to apply for reinstatement after six months, that the suspension be stayed for six months and, in lieu of enforcement, that Fleming be placed on probation for one year. This Court rejected the recommendation. The chief disciplinary counsel asks this Court to discipline Fleming’s law license.

The chief disciplinary counsel argues this Court should suspend Fleming’s license indefinitely, with no leave apply for reinstatement for six months, with the suspension stayed and, in lieu of enforcement, place Fleming on probation for one year. He contends Fleming violated Rules 4-1.1 and 4-1.3 by failing to represent his clients competently and diligently. He asserts Fleming violated Rule 4-1.4 by failing to communicate adequately with his client that the motion to recall the mandate had little or no chance of success. He argues Fleming violated Rule 4-1.8(d) by providing his client with financial assistance in connection with litigation. He contends Fleming violated Rules 4-8.4(c) and (d) by engaging in conduct involving dishonesty, fraud, deceit and misrepresentation and by engaging in conduct that is prejudicial to the administration of justice.

Fleming agrees with the chief disciplinary counsel that he violated the rules of professional conduct and asks that the disciplinary hearing panel’s recommendation be the outermost sanction ordered by this Court.

SC91152
In re: John J. Pawloski
St. Louis city
Attorney discipline
Listen to the oral argument:

The chief disciplinary counsel was represented during arguments by Sam S. Phillips of the chief disciplinary counsel's office in Jefferson City, and Pawloski was represented by Robert A. Ciuffa, a solo practitioner from St. Louis.

In late 2009, the chief disciplinary counsel received notice that St. Louis attorney John J. Pawloski’s client trust account was overdrawn. An investigation revealed Pawloski had commingled his own funds with client funds, used the funds for his own personal finances and failed to keep adequate financial records. In April 2010, the chief disciplinary counsel and Pawloski entered into a joint stipulation recommending that Pawloski be suspended for one year and placed on probation for two years. A disciplinary hearing panel also recommended the stipulated discipline, but this Court rejected it. The chief disciplinary counsel asks this Court to discipline Pawloski’s law license.

The chief disciplinary counsel argues this Court should suspend Pawloski’s law license and place him on probation. He contends probation is reasonable under ABA standards and previous decisions by this Court. The chief disciplinary counsel asserts Pawloski violated Rule 4-1.15 by commingling client and personal funds and by failing to maintain adequate financial records.

Pawloski agrees with the chief disciplinary counsel’s recommendation and assures the Court his misconduct never will be repeated.