Case Summary for October 28, 2009

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Case Summary for October 28, 2009

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, Oct. 28, 2009

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SC90133
Orla Holman Cemetery, Inc., and Susan Rector v. The Robert W. Plaster Trust, and Stephen R. Plaster, Trustee of the Robert W. Plaster Trust, and Village of Evergreen
Camden and Laclede counties
Right to access property, easement
Listen to the oral argument:

Evergreen was represented during argument by David Fielder of Lowther Johnson Attorneys at Law, LLC in Springfield, and the cemetery was represented by John Holstein of Springfield.

In 2002, the Robert Plaster Trust purchased farmland surrounding the Orla Holman Cemetery, near the village of Evergreen. The trust's purchased land included a grassy area where cemetery visitors parked and the property surrounding the road leading to the cemetery. After purchasing the land, the trust put a gate across the road leading to the cemetery. Some Evergreen citizens alleged they were locked in by the gate while trying to visit the cemetery. After a public hearing held by the Laclede County Commission in December 2003, the gate was ordered to be removed. The trust failed to remove the gate, and it was removed by the county. In January 2003, Evergreen purportedly annexed the trust's land. It is unclear whether the cemetery and the road leading to it were also annexed. According to the cemetery, the only signatures on the annexation ordinance were one of the trust's trustees, the chairman of the board of Evergreen and the village clerk. In 2004, a two-panel gate was constructed across the road so that if one side of the gate is open, the other side is locked closed. There was purportedly a sign on the gate that said "Closed" and that members of the cemetery may visit only during daylight hours. After the second gate was created, cemetery visitors claimed Evergreen improperly obstructed and denied access to the road and to the cemetery. They sought declaratory and injunctive relief establishing a public easement and damages for nuisance. In April 2005, the cemetery and the village both moved for summary judgment. In January 2007, the trial court sustained the cemetery's motion for summary judgment granting them an injunction and preventing the village from placing restrictive signs on the road or gating it. The village appeals.

Evergreen argues the trial court erred in entering summary judgment of the cemetery's petition because it was not entitled to judgment as a matter of law. Evergreen contends it has the authority to control and regulate roads within its boundaries pursuant to sections 80.090 and 304.120, RSMo. It argues the road lies entirely within its boundaries, it enacted an ordinance imposing reasonable restrictions on the public's use of the road and its actions were a reasonable exercise of its police powers. Evergreen argues the trial court erred in entering permanent injunctions against it because the injunctions are overbroad in prohibiting the village from limiting the public's use of the parking area or enacting any reasonable time restrictions on the public's use of the road and because it deprives Evergreen of its lawful exercise of police powers delegated to it by the legislature. It asserts that the cemetery did not present evidence regarding the scope or consistency of the alleged use of the parking area adjacent to the cemetery, but that there was evidence presented showing the use of the parking area was permissive and could be restricted.

The cemetery responds the undisputed facts establish Evergreen did not have the authority to permanently gate the road and post notices that the road was closed, and the restrictions on the use of the road were not a valid and reasonable exercise of police powers. It argues that Evergreen unlawfully and improperly prohibited the public's access to the road and the cemetery and unreasonably tried to exercise its police powers to prevent access and that the public and members of the cemetery association had a right of access to the road and the parking area. The cemetery contends Evergreen never raised the issue of the injunction being overbroad to the trial court, and it was entitled to a permanent injunction against Evergreen because injunctions are authorized against a municipal corporation to control its actual or threatened unlawful acts.

SC90000
State ex rel. Anthony Zinna v. Troy Steele, Warden
St. Francois County
Habeas corpus
Listen to the oral argument:

Zinna was represented during argument by John Cozean of Blanton, Rice, Nickell, Cozean & Collins, L.L.C. in Sikeston, and the state was represented by Caroline Coulter of the attorney general's office in Jefferson City

In March 2003, Anthony Zinna pleaded guilty to possession of a controlled substance in a correctional facility from an incident in October 2000. Pursuant to the plea agreement, the state recommended five years imprisonment and agreed to not file as a prior and persistent offender. The trial court announced in court his sentence as five years, but did not express whether the sentence was to run consecutively to or concurrently with his previous sentence. When the trial court entered its written sentence and judgment, it noted Zinna was to be confined for five years "to run consecutively" to his current sentence. Based on his previous sentences, Zinna should have been released from prison in August 2007; however, the five year consecutive sentence moved his release date to August 2012. Zinna seeks a writ of habeas corpus (to be released).

Zinna argues he is entitled to be released from incarceration because the trial court erred in its written order stating Zinna's five-year sentence was to run consecutively to his previous. He contends Rule 29.09 mandates that a sentence runs concurrently with a previous sentence if a court fails to state that it run consecutively and the trial court, when announcing Zinna's sentence in his presence, failed to state that his sentence was to be served consecutively with his prior sentences. Zinna asserts that he cannot seek relief pursuant to Rule 24.035 because such a claim is time-barred, but that cause and prejudice can be shown because his sentence was calculated more than two years after his current sentence was pronounced, and he is prejudiced because he would be free from his present incarceration if his March 2003 sentence had been run concurrently.

The state responds Zinna defaulted on his sentence by failing to appeal it or file a Rule 24.035 postconviction motion. It asserts Zinna had up to 180 days to file a postconviction motion to correct his sentence, but failed to do so. Alternatively, the state responds, this Court should find Zinna's claim is without merit because the trial court adopted the plea agreement of the parties and sentenced Zinna in accordance with its terms to a consecutive five year sentence. It argues the record reflects the trial court had a discussion with Zinna and Zinna understood his sentence was five years to run consecutively with his current sentence.