Case Summary for January 3, 2013

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Case Summary for January 3, 2013

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

9:30 a.m. Thursday, Jan. 3, 2013

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SC92811
In re: The Matter of The Honorable Barbara T. Peebles
St. Louis city
Judicial discipline

Listen to the oral argument:

The commission on retirement, removal and discipline was represented during arguments by James M. Smith of the commission's office in St. Louis, and Peebles was represented by Ronnie L. White of Holloran, White, Schwartz & Gaertner in St. Louis.

Barbara Peebles is an associate circuit judge in the 22nd Judicial Circuit (St. Louis city). After receiving a complaint from the circuit’s presiding judge, the Commission on Retirement, Removal and Discipline conducted an investigation into whether Peebles, as alleged in the complaint, had exhibited tardiness, lack of supervision of the clerks, sloppiness in handling the docket and failure to perform judicial responsibilities. Following an evidentiary hearing, the commission found Peebles guilty on five counts of misconduct. Specifically, it found Peebles strategically scheduled her docket (cases scheduled for the day) to begin one hour later than previous judges in that division and that her deputy clerk often called the docket in the mornings and handled basic matters without immediate supervision before the judge herself took the bench. It also found many attorneys who frequently appeared in Peebles’ division would adjust their schedules to account for the delayed dockets. The commission found Peebles left the country for two weeks and directed the deputy clerk to continue everything other than one particular docket, that other judges were handling. It also determined Peebles removed a motion to dismiss from a file, destroyed it without ruling properly and, while being investigated, told the circuit attorney that she was unaware of such activity. The commission asks this Court to remove Peebles from the bench.

The commission argues this Court should remove Peebles from her judicial position. It contends the findings of fact and conclusions of law it used to make its determination are supported by a preponderance of the evidence. The commission asserts Peebles engaged in a pattern of conduct that included taking the bench late and not attending scheduled court activities. It argues this caused the litigants, witnesses and attorneys appearing in her court to experience delay, inconvenience and discourtesy. The commission contends Peebles frequently had her clerk call the docket, continue the cases, and advise attorneys of dismissals and certain warrants. It asserts Peebles went on vacation without properly advising her clerks, making arrangements to continue the dockets or providing a substitute judge to handle the dockets. The commission argues Peebles improperly destroyed a motion without authorization in violation of section 575.110, RSMo, and then attempted to conceal the fact that she had destroyed a public record. It contends Peebles stated the motion to dismiss was actually an improper order in an attempt to establish a defense justifying purging the document without notice. The commission asserts Peebles was not forthright during its investigation and provided false testimony.

Peebles responds that this Court should not remove her from the bench. She argues her choice to begin dockets late was to allow her clerks to attend to uncontested matters in the mornings for the convenience of the parties and was not a violation of Rule 2 or article V, section 24 of the state constitution. Peebles contends if she was not on the bench, she was generally available in chambers to consult with counsel and others. She asserts that she did not allow her clerks to dispense advice to attorneys and that they only called the docket with respect to housekeeping matters that she had already ratified. Peebles argues that when she went on vacation, she left specific instructions with her clerks regarding which matters to handle and which to refer to other judges in the courthouse. She contends that when she was not present in the courthouse, another judge physically was present in the courtroom. Peebles asserts that she did not destroy the motion to dismiss in bad faith but rather that she was confused and frustrated by the document because it was unsigned, ambiguous and potentially misleading. She concedes that destroying the motion rather than striking it and entering an order to that effect was inappropriate and ill-advised, but she argues it was not a violation of Rule 2 or article V, section 24 of the state constitution. Peebles contends she called the document an “order” and not a “motion” because she was confused about its origins and intent. She asserts she thought the document was an unnecessary memorialization of a conversation. Peebles argues she cooperated fully with the commission’s investigation and accepted responsibility for destroying the document. She contends removing her from the bench is an extreme sanction, is unjust and is unnecessary to preserve the public’s confidence in the judiciary.

SC92649
Wells Fargo Bank, N.A., as trustee for the benefit of The Certificate Holders, Park Place Securities, Inc., Asset-Backed Pass-Through Certificates Series 2005-WCW2 v. William D. Smith and Susan M. Smith and John Doe
Jefferson County
Challenge to summary judgment in unlawful detainer action

Listen to the oral argument:

The Smiths were represented during arguments by John and Alicia Campbell of Campbell Law LLC in St. Louis, and Wells Fargo was represented by Thomas C. Walsh of Bryan Cave LLP in St. Louis.

Susan and William Smith bought a house in April 2005 in Jefferson County. They took out a mortgage on the house and executed a promissory note and deed of trust containing a power of sale that authorizes a trustee to sell the property. After the Smiths failed to make mortgage payments, the trustee held a foreclosure sale at which Wells Fargo was the successful bidder. The Smiths refused to vacate the premises, and Wells Fargo brought an unlawful detainer action for ownership in the circuit court. The Smiths asserted affirmative defenses and six counterclaims, including one that section 534.210, RSMo, regarding unlawful detainer proceedings, is unconstitutional. Wells Fargo filed a motion to strike the affirmative defenses and counterclaims along with a motion for summary judgment. The motion for summary judgment included an argument that section 534.210 prohibits defenses, counterclaims and claims for wrongful disclosure in unlawful detainer proceedings regarding merit of title. The trial court granted Wells Fargo’s motion for summary judgment and ordered the Smiths to pay damages for remaining in the house throughout the unlawful detainer proceedings. The Smiths appeal.

The Smiths argue the trial court erred in granting Wells Fargo’s motion for summary judgment. They contend section 534.210 violates the due process clauses of the state and federal constitutions. The Smiths assert the open courts provision of the state and federal constitutions is a fundamental right also violated by the portion of section 534.210 allowing title to be proven by filing an unlawful detainer action. They argue they have been deprived of property and liberty interests without a meaningful hearing because the detainer hearing did not meet procedural due process requirements. The Smiths contend section 534.210 also violates the equal protection clauses of the state and federal constitutions by creating two special classes of citizens. They argue these classifications are not necessary to accomplish a compelling state interest and are not rationally related to a legitimate government interest, as the equal protection clauses require. The Smiths argue Wells Fargo’s counterclaim was void because section 534.210 directly contradicts both state law and precedent regarding counterclaims. They contend state procedural rules prevail over contradictory statutes, so Rules 55.32(a) and 55.08 control over contradictory provisions of section 534.210. The Smiths assert the trial court’s ruling incorrectly prevented them from contesting standing and the determination of the real party in interest because standing and real party arguments are threshold issues in state proceedings.

Wells Fargo responds the trial court correctly granted its motion for summary judgment. It argues the case should be dismissed because the Smiths failed to provide the attorney general with notice of their constitutional claims pursuant to section 527.110, RSMo, and Rule 87.04. Wells Fargo contends the foreclosure was not a state action subject to constitutional limitations because it was conducted privately according to the power-of-sale provision in the deed of trust. It asserts section 534.210 does not violate the state or the federal due process or equal protection clauses. Wells Fargo argues collateral and judicial estoppel bar the Smiths’ right to bring this action because the trial court issued a final judgment and the Smiths consented to the judgment. It contends the Smiths’ claim that section 534.210 violates state law by prohibiting counterclaims in unlawful detainer actions is without merit. Wells Fargo asserts there is no issue of standing or real party interest in this action.

SC92726
In re: Edward J. Griesedieck III
St. Louis County
Attorney discipline

Listen to the oral argument:

The office of chief disciplinary counsel was represented during arguments by Chief Disciplinary Counsel Alan Pratzel of Jefferson City, and Griesedieck was represented by Matthew T. Schelp of Jensen, Bartlett & Schelp LLC in St. Louis.

St. Louis attorney Edward Griesedieck on April 13, 2012, pleaded guilty to violating 18 USC section 1033(b)(1) regarding misappropriation of funds by an agent. Specifically, he was alleged to have followed the instructions of a board member from one of Griesedieck’s client companies who requested in July and December 2009 that Griesedieck send $5,000 and $3,000 respectively to the Missouri Democratic Party and bill the company as if the funds were costs. The company paid the first bill accordingly but investigated the second and uncovered the true nature of the funds. This Court suspended Griesedieck’s license to practice law pending the outcome of the federal case. Following entry of Griesedieck’s guilty plea, the chief disciplinary counsel filed a motion for final order of discipline, asking this Court to suspend Griesedieck’s license with no leave to reapply for three years.

The chief disciplinary counsel argues this Court should suspend Griesedieck’s license without leave to reapply for three years, because Griesedieck willfully misappropriated client money. He contends Griesedieck pleaded guilty to a federal misdemeanor, which included elements of willful misappropriation of funds by an agent. He argues suspension is proper to protect the public and preserve the integrity of the legal profession.

Griesedieck responds this Court should consider less harsh manners of discipline, taking into account several mitigating factors including his cooperation with the authorities. Griesedieck contends the unique facts of this case support a lesser sanction. He asserts that, should this Court should suspend his license, it should allow him leave to reapply in six months.

SC93032
State ex rel. Tom Todd v. The Honorable William H. Winchester III
Dunklin County
Election challenge

By order dated Dec. 24, 2012, both the return to the preliminary writ and the briefing schedule has been stayed, and this case has been removed from the oral argument docket.

SC92615
David A. McNeal v. State of Missouri
St. Louis city
Post-conviction relief

Listen to the oral argument:

McNeal 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.

David McNeal was convicted of second-degree burglary and stealing for entering an unlocked apartment without permission and taking a drill from the premises. The crime occurred while he was visiting a resident of a neighboring apartment in May 2008. McNeal concedes he took the drill but alleges he did not enter the apartment with the intent to steal anything. At trial, the state submitted an instruction for second-degree burglary. The jury asked the judge if intent to commit the crime of burglary must be formed before opening a door. The judge directed the jury to follow the submitted instructions. The jury found McNeal guilty of second-degree burglary and stealing, and he was sentenced to 10 years and six months in prison, respectively. The conviction was upheld on direct appeal, and McNeal filed a motion for post-conviction relief, claiming trial counsel was ineffective for failing to submit a jury instruction for first-degree trespass. The circuit court found that trial counsel’s decision not to instruct was based on trial strategy. It also found that the trial court would not have given an instruction for first-degree trespass even had the instruction been submitted, because when a person enters a place and commits a crime, there is no question as to their purpose for entering the place and, therefore, trespass is improper. McNeal appeals.

McNeal argues the circuit court erred in overruling his motion for post-conviction relief. He contends the circuit court should have held an evidentiary hearing because he was pleading facts consistent with the record and not conclusions of law. McNeal asserts he is entitled to post-conviction relief because his trial counsel acted unreasonably in not seeking to instruct the jury regarding a lesser charge of first-degree trespass. He argues that counsel’s failure to offer such an instruction prejudiced the jury against him and that, if the jury had the instruction, it would not have convicted him of second-degree burglary. McNeal contends the jurors expressed doubt that they believed McNeal had the intent to commit a crime before he entered the apartment. He asserts the circuit court denied his rights to effective assistance of counsel, due process, to present a defense and fair trial by overruling his motion. McNeal argues the case should be remanded (sent back to circuit court) and either set for a new trial or an evidentiary hearing.

The state responds the circuit court did not err in overruling McNeal’s motion for post-conviction relief. It argues McNeal failed to provide facts proving he was entitled to an evidentiary hearing. The state contends McNeal’s purpose in entering the apartment was clear once he realized the occupant had moved out, so there was no basis for submitting a first-degree trespass instruction. It asserts McNeal failed to prove trial counsel acted unreasonably in not offering a first-degree trespass instruction. The state argues there is insufficient evidence to prove the jury was prejudiced or that it would have returned a different verdict had it been presented with both instructions. It contends the jury is assumed to follow the law when considering if a different verdict would have been returned. The state asserts the circuit court did not violate McNeal’s rights by overruling the motion.