Case Summary for May 4, 2016

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Case Summary for May 4, 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.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Wednesday, May 4, 2016
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SC95358
Franklin Allen v. Wayne Bryers, Atain Specialty Insurance Company
Jackson County
Challenge to garnishment judgment against insurer following personal injury suit
Listen to the oral argument:

SC95358.mp3
Atain was represented during arguments by Nikki Cannezzaro of Franke, Schultz & Mullen PC in Kansas City; Allen was represented by Kirk R. Presley of Presley & Presley LLC in Kansas City.

During a June 2012 argument and ensuing physical altercation at a Kansas City apartment complex, a gun carried by Wayne Bryers discharged and shot Franklin Allen, who became paraplegic as a result of his injuries. In August 2012, an attorney for Allen sent the apartment complex’s owner a letter indicating Allen’s contention that the complex was liable for Allen’s injuries due to negligence by the complex and Bryers. In September 2012, Atain Specialty Insurance Company – which had issued a commercial general liability insurance policy to the complex – sent a letter notifying Bryers it would defend him in a lawsuit filed against him, directing him to notify the insurer immediately of any such lawsuit and reserving its rights to deny coverage. The next month, Atain filed an action in a federal district court seeking a judgment declaring the parties’ rights and obligations under the insurance policy, including a declaration that the policy did not cover Allen’s claim against Bryers. Allen and Bryers subsequently entered into an agreement under section 537.065, RSMo, which allows an alleged wrongdoer to limit collection of any judgment to specified assets. In the agreement, Bryers agreed to consent to entry of judgment against him.

In December 2012, Allen filed a declaratory judgment action in state court regarding the insurance policy. He also filed a personal injury lawsuit against Bryers, alleging that Bryers was in the course of performing required armed security for the apartment complex in the course and scope of his employment as the complex manager when Allen was shot, that Bryers was intoxicated at the time and that the gun’s discharge was not intentional. Bryers did not notify Atain of the personal injury lawsuit. Atain sent Bryers another letter indicating it had discovered the lawsuit and reiterating it would defend Bryers under the insurance policy. Bryers declined the insurer’s offer and, in January 2013, directed Atain’s attorney to withdraw from the case and then filed notice of his consent to entry of a judgment against him pursuant to his section 537.065 agreement with Allen. Atain then moved to intervene in the personal injury action; the circuit court overruled that motion and Atain’s later motion for reconsideration. Following an April 2013 bench trial (before a judge rather than a jury), Allen presented evidence supporting his allegations, Bryers did not object or present any evidence, and the court adopted Allen’s proposed findings of fact, entering a $16 million judgment against Bryers. Allen then sought garnishment against Atain, seeking payment under the insurance policy for his judgment against Bryers. In its answer, Atain asserted that it had voided and rescinded its insurance coverage of the apartment complex. It had done so because the complex’s owner had represented on the insurance application that the apartments did not employ security, armed or unarmed, but the allegations and findings in Allen’s lawsuit were that Bryers was acting in the course of employment as a security guard for the apartment complex when he shot Allen. Atain also sought to stay the garnishment proceedings until Allen’s declaratory judgment action had been resolved. The court in July 2014 entered summary judgment (judgment on the court filings, without a trial) in Allen’s favor, ordering Atain to pay the $16 million judgment. Atain appeals.

This case presents several questions for the Court relating to propriety of the circuit court’s summary judgment in favor of Allen. One is whether Atain should be allowed to litigate facts relating to coverage issues in its insurance policy or whether the negligence finding precludes application of the intentional conduct exclusions in the policy. Another is whether Allen proved that each of Atain’s affirmative defenses failed as a matter of law or otherwise establish material facts entitling him to judgment as a matter of law with respect to each defense. Additional issues related to the amount of judgment against Atain involve whether disputed questions of fact remain as to whether Atain breached its duty to defend Bryers against Allen’s lawsuit, whether such garnishment was limited to collecting the insurance policy’s $1 million claim limit, whether Allen in his court filings showed bad faith sufficient to justify exceeding the policy limits and whether bad faith must be determined by a jury. A further issue is whether Allen and Bryers stipulated to untrue facts in the underlying personal injury action and, if so, whether the court should have set aside the underlying judgment as a result. Another is whether Atain had interests in the underlying personal injury action sufficient to give it a right to intervene. An additional question involves whether the court’s judgment against Atain without the opportunity to litigate the parties’ obligations under the insurance policy deprives the company of its state and federal constitutional rights to due process.

SC95358_Atain_Specialty_Insurance_brief.pdf

SC95358_Allen_brief.pdf

SC95358_Atain_Specialty_Insurance_reply_brief.pdf

SC95464
Kristine Smotherman, Brian Smotherman v. Cass Regional Medical Center
Cass County
Allegation that juror misconduct entitles personal injury plaintiff to a new trial
Listen to the oral argument:

SC95464.mp3
Smotherman was represented during arguments by Mark E. Parrish of Boyd, Kenter, Thomas & Parrish LLC in Independence; the medical center was represented by Sean T. McGrevey of Adam & McDonald PA in Overland Park, Kansas.

Kristine Smotherman sued Cass Regional Medical Center in Harrisonville for injuries she sustained when she fell at the medical center’s premises in February 2009. The power had gone out at the hospital, and it was using backup generators, although Smotherman alleged not all the lights were working. She alleged that a nurse took her to a small bathroom with emergency lighting, that the emergency lights went out while she was getting up, and that she slipped on soap on the floor and fell, sustaining injuries including a cut that became infected. At the August 2014 trial, the hospital disputed whether there was soap on the bathroom floor, suggesting it might have been water instead. The jury was instructed it had to find soap caused Smotherman’s fall to award her damages. The trial court also instructed the jury not to conduct research or communicate with anyone about the case and to deliberate solely on the evidence presented at trial. The he jury returned a verdict assessing zero fault against both the medical center and Smotherman, and the trial court entered judgment accordingly. Subsequently one of the jurors admitted that, during the trial, he had conducted Internet research and found the weather forecast for Harrisonville for the day Smotherman fell was for significant snowfall, that he had shared this information with other jurors and that he suggested that the snow may have led there to be water on the bathroom floor. Eight jurors testified during the hearing regarding Smotherman’s motion for a new trial, which the trial court overruled. Smotherman appeals.

This case presents one primary issue for the Court related to whether the trial court should have granted a new trial. Related to this is whether other jurors heard about or were influenced by the juror’s Internet research about weather data – gathered extraneously to the trial – to explain an alternate cause for Smotherman’s fall. Also related are issues involving whether the juror’s actions amounted to juror misconduct causing Smotherman prejudice entitling her to a new trial and whether the medical center rebutted any presumption of prejudice.

SC95464_Smotherman_brief_filed_in_WD.pdf

SC95464_Cass_Regional_Medical_Center_brief.pdf

SC95464_Smotherman_reply_brief.pdf

SC95484
Natalie R. DePriest v. State of Missouri
St. Francois County
Challenge to denial of post-conviction relief following drug convictions
Listen to the oral argument:

SC95484.mp3
DePriest was represented during arguments by Gwenda R. Robinson of the public defender’s office in St. Louis; the state was represented by Shaun J. Mackelprang of the attorney general’s office in Jefferson City.

In 2011, siblings Natalie DePriest and David DePriest began sharing an apartment in Farmington. The brother was licensed to grow marijuana in Colorado, where he had lived previously. In August 2011, a law enforcement officer found marijuana growing in the bathroom and closet of the brother’s apartment bedroom as well as an assault rifle in his bedroom. In a common area of the apartment, the officer found two pounds of marijuana as well as a scale and paraphernalia. The officer seized all the items and arrested both siblings.

The state charged the sister with one count of felony production of a controlled substance, one count of felony possession of a controlled substance with the intent to distribute and one count of felony unlawful possession of a weapon. The state also filed charges against the brother. Both siblings hired the same Columbia attorney to represent them. The sister signed a waiver of conflict. The prosecutor made a plea offer to both siblings of 10 years in prison with the possibility of probation after 120 days. Counsel advised the siblings not to accept the offer and filed a motion to suppress the evidence collected in their apartment. In July 2012, the court overruled the motion, and the sister’s case was set for trial. The sister subsequently was charged with misdemeanor writing a bad check, and the state moved to revoke her bond. After various plea negotiations, both siblings appeared in court with counsel in August 2013. The proceeding involved five other defendants, and the plea hearing was conducted for the group. Both siblings said that they understood the rights they would have at trial, that no one had pressured them into pleading guilty and that they wished to plead guilty because they were guilty.

As for the sister, the state dropped the weapon and check charges, and the sister pleaded guilty to the two drug charges. In November 2013, the circuit court sentenced her to two concurrent terms of 15 years in prison, and she began serving her sentences the next month. She subsequently sought post-conviction relief, which the circuit court overruled without a hearing in September 2014. The sister appeals.

The sister’s case presents several questions for the Court related to whether she pleaded unrefuted facts and, if so, whether the circuit court should have granted her a hearing and relief. One involves whether she pleaded unrefuted facts showing that her counsel was ineffective for representing both her and her brother despite the conflict created because the siblings’ interests were not aligned and, if so, if this conflict violated her state and federal constitutional rights to effective assistance of counsel, due process and a fair trial. Another question is whether the group guilty plea hearing procedure exacerbated any damage caused by counsel’s representation of both siblings and, if so, whether it violated her due process rights and should have invalidated her guilty plea. An additional issue is whether the statute under which the sister was charged arbitrarily classifies marijuana as a schedule I controlled substance with no rational basis for such categorization, especially given scientific consensus regarding marijuana’s potential for abuse and medical uses and, if so, whether it is unconstitutional. A further question is whether counsel should have raised this challenge to the marijuana statute and should not have advised the sister to plead guilty.

SC95484_Natalie_DePriest_brief.pdf

SC95484_State_brief.pdf

SC95484_Natalie_DePriest_reply_brief.pdf

SC95483
David G. DePriest v. State of Missouri
St. Francois County
Challenge to denial of post-conviction relief following drug convictions
Listen to the oral argument:

SC95483.mp3
DePriest was represented during arguments by Lisa M. Stroup of the public defender’s office in St. Louis; the state was represented by Shaun J. Mackelprang of the attorney general’s office in Jefferson City.

The facts underlying this appeal are substantially the same as those described above for Case No. SC95484, Natalie DePriest v. State of Missouri.

After the DePriest siblings’ counsel advised them to reject a prosecutor’s plea offer, the brother ultimately – during the August 2013 group plea hearing that also involved his sister – pleaded guilty to one count of felony producing a controlled substance, one count of felony possessing a controlled substance with intent to distribute and one count of felony unlawfully possessing a weapon. In November 2013, the circuit court sentenced him to a total of 22 years in prison, including concurrent terms of 15 years in prison for the production charge and seven years in prison for the possession charge, plus a consecutive term of seven years in prison for the weapon charge. He began serving his sentences the next month. He subsequently sought post-conviction relief, which the circuit court overruled without an evidentiary hearing. The brother appeals.

The brother’s case presents multiple issues for the Court related to whether he pleaded facts, not conclusively refuted, sufficient for the circuit court to have granted him a hearing and relief. One question is whether the brother’s counsel agreeing to the group plea procedure placed pressure on the brother to plead guilty at the same time as his sister rather than proceeding to trial and, if so, whether this prejudiced the brother. Another is whether there was an actual conflict of interest from the same attorney representing both siblings and, if so, whether the brother is presumed to have been prejudiced. An additional issue involves whether counsel should have advised the brother that the state would withdraw its 10-year plea offer if the case proceeded to a preliminary hearing or if the defense filed a notice to have a hearing on a motion to suppress evidence and, if so, whether this caused the brother prejudice, especially given he ultimately pleaded guilty without an offer and was sentenced to 22 years in prison. Another question is whether the brother’s counsel’s failure to object to the court proceedings being closed to the public prejudiced the brother. An additional issue is whether the brother’s counsel had an actual conflict caused by counsel’s use of the charges pending against him to argue marijuana should be legalized in Missouri and, if so, whether the brother was prejudiced as a result. Another is whether the prosecutor was vindictive toward the brother’s counsel and, if so, whether the prosecutor asked for the harshest sentence possible to run consecutively and the brother was prejudiced as a result. A further issue is whether counsel was ineffective in not introducing at the sentencing hearing data the local circuit clerk’s office compiled showing that most defendants pleading guilty to a marijuana offense there were sentenced less harshly than the brother.

SC95483_David_DePriest_brief.pdf

SC95483_State_brief.pdf

SC95483_DePriest_David_reply_brief.pdf

SC95512
In re: Brian C. Greer
Jackson County
Attorney discipline
Listen to the oral argument:

SC95512.mp3
Chief Disciplinary Counsel Alan D. Pratzel represented his office, of Jefferson City; Greer, an attorney in Lee’s Summit, represented himself.

The chief disciplinary counsel initiated disciplinary proceedings against Lee’s Summit attorney Brian Greer in February 2015. Greer’s law license previously has been disciplined – including a brief default disbarment after he failed to respond to inquiries from disciplinary authorities, a suspension for failure to pay bar dues and four admonitions – and he was required to participate in a diversionary program from March 2009 to March 2010 to help improve management of his law practice and to help ensure his compliance with the rules of professional responsibility.

The current allegations are that Greer violated multiple rules of professional responsibility – Rule 4-1.1 (competence), Rule 4-1.3 (diligence), Rule 4-1.4 (communication), Rule 4-1.7 (conflict of interest), Rule 4-8.4(c) (conduct involving dishonesty), Rule 4-8.4(d) (conduct prejudicial to the administration of justice) and Rule 4-3.4 (fairness to the opposing party). Specifically, the disciplinary counsel alleged certain violations involving Greer’s representation of an elderly widow of limited financial means who had been sued by a contractor. Counsel alleged that the contractor’s insurance adjuster paid Greer to enter his appearance in court on the widow’s behalf, without any prior communication with her, without any fee agreement with her and without communicating with her during the case. Greer did not present a defense at trial, nor did he tell the widow the court had entered a judgment against her, ask the court to modify its judgment or preserve the widow’s rights to appeal. Greer also was not covered by malpractice insurance at any time during this representation (or at any time since, as the disciplinary counsel alleges), and when the widow later sued Greer for legal malpractice, he countersued for more than $200,000 in actual damages and more than $500,000 in punitive damages. The trial court involuntarily dismissed the counterclaim with prejudice (so it could not be refiled). The disciplinary counsel also alleges that Greer gave the widow’s attorney in the malpractice action against him documents purporting to be letters he sent the widow during the prior suit by the contractor. Although opposing counsel requested discovery – including of Greer’s electronic records – he did not produce the electronic versions of those letters and later stated he had destroyed his prior computers (on which he said he had written the letters) after he purchased a new computer. The opposing counsel moved for sanctions against Greer, which the trial court granted. The chief disciplinary counsel further alleged that Greer failed to communicate adequately and ultimately abandoned a client who had asked him to represent her in a municipal traffic matter. She had not paid Greer, and she was able to find another attorney to handle the matter without consequence to her driver’s license.

At a June 2015 hearing before a regional disciplinary hearing panel regarding the information, Greer admitted all the allegations of misconduct except those regarding dishonesty, obstruction of evidence and falsification of evidence. The disciplinary hearing panel issued its decision in December 2015, sustaining the evidence on all matters presented at the hearing. Although the chief disciplinary counsel had requested a suspension of Greer’s law license, and Greer suggests his conduct warrants a reprimand or probation, the disciplinary hearing panel recommended that Greer be disbarred. The chief disciplinary counsel now asks this Court to remove Greer from the practice of law to protect the public.

This case presents two primary issues for the Court – whether Greer violated rules of professional responsibility and, if so, what discipline is appropriate.

SC95512_Chief_Disciplinary_Counsel_brief.pdf

SC95512_Greer_brief.pdf