Case Summary for March 8, 2016

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Case Summary for March 8, 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

9:30 a.m. Tuesday, March 8, 2016
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SC95170
Ronald Malam v. State of Missouri, Department of Corrections
Texas County
Challenge to denial of worker’s compensation claim
Listen to the oral argument:

SC95170.mp3
Malam was represented during arguments by Randy Alberhasky of The Alberhasky Law Firm PC in Springfield; the department was represented by Catherine Goodnight of the attorney general’s office in Springfield.

Ronald Malam was injured in an August 2011 accident while working as a corrections officer at the department of corrections’ South Central Correctional Facility in Licking. Shortly after performing a physical take-down of an inmate who was threatening Malam physically, Malam began to experience shortness of breath and was spitting blood. He was transported by ambulance to a local hospital, where he was diagnosed as having severe pulmonary contusions, and then was flown to a Springfield hospital, where his multiple diagnoses included hypertensive crisis and where his treatment included a heart catheterization. He returned to work for full duty in October 2011. Malam subsequently sought worker’s compensation benefits for the treatment he received at the two hospitals. Two doctors performed independent medical examinations, one at Malam’s request and the other at his employer’s request. Malam’s expert opined that the August 2011 take-down was the “direct, proximate and prevailing factor precipitating” Malam’s hypertensive crisis and that the “prevailing factor precipitating the specific event” was the unexpected stresses associated with restraining the inmate. The employer’s expert opined that Malam’s diagnoses were not related to the August 2011 take-down but that he went into hypertensive crisis due to a prior medical condition, noting Malam was not being treated for hypertension at the time of her examination. Following a hearing, the administrative law judge in February 2014 denied Malam’s claim for benefits, finding he failed to prove he had a compensable injury under chapter 287, RSMo, necessitating his treatment at the hospitals. Malam appealed to the labor and industrial relations commission, which affirmed the denial of the worker’s compensation claim. The commission found that, although Malam proved he had an “accident” as defined in chapter 287, he failed to prove the accident was more than a “precipitating” factor in his medical condition. Malam appeals.

This appeal raises several questions for the Court relating to whether Malam proved he sustained a “compensable injury” under chapter 287 to qualify for benefits. One is whether Malam’s medical expert’s report – which used both the terms “prevailing factor” and “precipitating factor” – met the statutory requisite for proving the August 2011 accident was the “prevailing factor” in causing Malam’s diagnoses. Another involves the extent to which the commission relied on the medical experts’ opinions in denying Malam’s claim. An additional issue involves what the commission was required to determine before concluding Malam’s employer was not responsible for paying his medical bills for treatment following the August 2011 accident.

SC95170_Malam_brief_filed_in_SD.pdf

SC95170_state_brief_filed_in_SD.pdf

SC95205
Bartlett International Inc. and Bartlett Grain Co. LP v. Director of Revenue
Buchanan County
Applicability of use tax to certain parts of contract related to new grain conveyor system
Listen to the oral argument:

SC95205.mp3
The director was represented during arguments by Deputy Solicitor General Jeremiah Morgan of the attorney general’s office in Jefferson City; Bartlett was represented by Derek Teeter of Husch Blackwell LLP in Kansas City.

Bartlett Grain Company receives, handles and ships grain from its elevators, including one it owns and operates in St. Joseph. The department of revenue audited Bartlett for the tax periods of October 2008 through September 2011 and concluded Bartlett failed to accrue and remit use tax on the sales price of certain items it purchased for its St. Joseph facility. The item still in dispute involves contract charges to fabricate and install a grain conveyor system. Bartlett purchased the parts for the conveyor, then paid another company more than $590,000 to furnish the materials, fabricate and install the conveyor parts at Bartlett’s St. Joseph facilities. The contract to build the grain conveyor was broken into five parts – supporting structures, wet corn conveying, dry corn conveying, scalper and cross conveying, and distribution conveyors – with line-item price breakdowns, as appropriate, for materials, labor, subcontracting and rentals. Bartlett disputed the department’s findings. Ultimately, the administrative hearing commission concluded that the “labor” and “engineering” parts of the contract were nontaxable services, finding the tangible personal property was ancillary to the services and, therefore, not subject to use tax. The director of revenue appeals.

This appeal raises several issues for the Court relating to whether Bartlett is liable for use tax. One is whether the “labor” and “engineering” charges were “part of the sale” of tangible personal property under section 144.605, RSMo, and whether an exemption for “installing” property applies. Another is whether the “true object” test for examining combined sales of tangible personal property and services applies and is met.

SC95205_Director_of_Revenue_brief.pdf

SC95205_Bartlett_brief.pdf

SC95205_Director_of_Revenue_reply_brief.pdf

SC95382
In re: Paritosh Bhupesh Sheth
St. Louis County
Attorney discipline
Listen to the oral argument:

SC95382.mp3
The chief disciplinary counsel, Alan Pratzel of Jefferson City, represented his office during arguments; Sheth was represented by Michael Downey of the Downey Law Group LLC in St. Louis.

St. Louis County immigration attorney Paritsoh “Pari” Sheth entered into an agreement with another attorney to help take on a lawsuit for a new client. Under the agreement, if the lawsuit was successful and money was recovered, then Sheth would be reimbursed $20,000 and would share equally in the attorney fee. Sheth subsequently wrote four checks on his client trust account, each for $5,000, to advance legal expenses to the other attorney. At the time, his trust account did not hold any funds for the benefit of the new client. In February 2014, the bank notified Sheth that the second of the checks had caused the trust account to have insufficient funds. He then deposited $7,000 of his own money into the trust account to resolve the overdraft issue. The bank sent notice of the overdraft to the chief disciplinary counsel’s office, which began an investigation. The investigation revealed checks drawn on and other disbursements from Sheth’s trust account for personal or business expenses, deposits into the trust account of personal refunds, and instances in which Sheth kept earned fees in the trust account rather than moving them into his operating account. During a hearing before the regional disciplinary hearing panel, Sheth admitted the need for education regarding proper client trust account management, especially given the complex billing nature of his immigration practice. The disciplinary hearing panel concluded that Sheth violated several provisions of Rule 4-1.15 by depositing certain personal funds, including earned legal fees, into his trust account; commingling personal funds with client property in his trust account; paying personal and business expenses from his trust account; disbursing funds from his trust account before waiting for those funds to be collected by the bank in which the account is held; and failing to maintain and preserve complete records of his trust account. The panel also concluded that Sheth engaged in conduct prejudicial to the administration of justice in violation of Rule 4-8.4(d). It further determined that Sheth was unaware that some of his trust account transactions were improper. The panel recommended that Sheth be reprimanded, be required to work with a trust account mentor and be subject to audits for one year. The chief disciplinary counsel rejected the panel’s decision and asks this Court to suspend Sheth’s license with no leave to apply for reinstatement for at least one year, to stay the suspension and to place Sheth on probation for one year.

This case presents two related questions for the Court: whether Sheth violated the rules of professional responsibility and, if so, what discipline is appropriate.

SC95382_Chief_Disciplinary_Counsel_brief.pdf

SC95382_Sheth_brief.pdf