Case Summary for February 3, 2009

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Case Summary for February 3, 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.

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, February 3, 2009

_________________________________________________________________

SC89611
Parktown Imports, Inc. v. Audi of America, Inc.
St. Louis County
Location of new motor vehicle dealership
Listen to the oral argument:

Parktown was represented during argument by Edwin G. Harvey of Thompson Coburn LLP, of St. Louis, and Audi of America was represented by Randall L. Oyler from Chicago, Illinois.

In September 2006, Audi of America Inc., intended to open a motor vehicle dealership in St. Louis County within 10 miles of Parktown Imports, another Audi-franchised dealership. In March 2007, Parktown filed a complaint with the administrative hearing commission alleging its dealings with Audi of America involved conduct that was capricious, in bad faith, or unconscionable, and, as such, was an unlawful practice pursuant to section 407.825, RSMo, part of the Missouri motor vehicle franchise practices act. Audi of America contends that Parktown could only use section 407.817, RSMo, to bring a complaint and that Parktown did not meet the requirements of that section. Section 407.817 requires a "good cause" showing if a vehicle dealership wants to establish a new dealership within a statutorily-defined distance from existing dealers; in this case, within six miles. Audi of America would have been more than six miles away from Parktown. In April 2007, Audi of America moved to dismiss Parktown's complaint. The commission determined that section 407.825 was not applicable and dismissed Parktown's complaint for lack of jurisdiction. Parktown appeals.

Parktown argues the commission's decision was not authorized by law. It contends section 407.817 does not preempt a complaint brought pursuant to section 407.825. Parktown asserts section 407.817 was added in 2001 as an amendment to the act to expand the protections of Missouri vehicle franchises. It argues the act is clear and specifically allows Parktown's complaint; the commission, therefore, should have overruled Audi of America's motion to dismiss. Parktown further contends even if the act were ambiguous, the commission should have interpreted the act in line with its legislative purpose, which is to provide additional protections for motor vehicle franchisees.

Audi of America responds Parktown is located beyond the six mile "relevant market area" of the new dealer. Therefore, it argues, Parktown did not have standing to bring a challenge pursuant to section 407.817. Audi of America contends the commission properly held that it lacked jurisdiction to regulate the establishment of new dealerships pursuant to section 407.825. It asserts the legislature's intent is clear that section 407.825 was not to be used for challenging the establishment of new dealerships. Audi of America further responds that allowing challenge using section 407.825 would violate due process, constitute an unlawful restraint of trade, and allow an impermissible interference with interstate commerce in violation of the commerce clause of the United States Constitution.

SC89676
In re the Marriage of Teresa M. Callahan and Gary W. Callahan, Teresa M. Callahan v. Gary W. Callahan
St. Francois County
Dissolution of marriage
Listen to the oral argument:

Husand was represented during argument by Arthur G. Muegler, Jr. of St. Louis, and Wife was represented by Benicia Baker-Livorsi of St. Charles.

Wife filed a petition for dissolution of marriage in June 2007, seeking maintenance and a property division. She alleged financial, physical and sexual marital misconduct against Husband. Husband was served with a copy of the petition and the summons in August 2007. In October 2007, the trial court entered a default judgment awarding Wife 47.2 percent of Husband's retirement and buy-out award, the marital home, monthly maintenance, and attorney's fees. The next month, Husband moved to set aside the default judgment pursuant to Rule 74.05(d). The circuit court overruled Husband's motion in a court order. Husband appeals.

Husband argues he was entitled to an evidentiary hearing because his motion sufficiently alleged both "good cause" for being in default and a "meritorious defense" to Wife's allegations required by Rule 74.05. He asserts he properly pleaded that at the time of filing suit Wife misrepresented to him that her lawyer was representing both Wife and Husband in the dissolution case to settle the dispute and Husband did not need to take any further action, that on the day of the default hearing Wife misrepresented she was going to see a doctor when she was actually going to court to obtain the default judgment and that Wife received and destroyed all court-related mail addressed to Husband at the family home. Husband further argues Wife was not entitled to receive maintenance or attorney fees because she was not permanently disabled as she claimed, she could return to her job making at least $30,000 a year, and he did not engage in any marital misconduct.

Wife responds this Court lacks appellate jurisdiction over Husband's appeal because his brief fails to comply with Rules 84.04 and 74.01(a) in that his sole point is internally inconsistent. She argues his point raises multiple allegations of error and does not reference a final and appealable judgment as required by Rule 74.01. Wife asserts the trial court properly exercised its discretion denying Husband's motion to vacate a default judgment pursuant to Rules 74.05(d) and 74.06(b) in that he failed to allege sufficient facts to show excusable neglect or mistake and that Husband had a meritorious defense.

SC89752
State ex rel. Jeremiah W. (Jay) Nixon, Attorney General, The Missouri Department of Natural Resources, and the Missouri Dam and Reservoir Safety Council v. Paul and Marilil Olive
Greene County
Retroactive applicability of dam and reservoir safety laws
Listen to the oral argument:

The state was represented during argument by Donald A. Willoh, Jr. of the attorney general's office in Jefferson City, and the Olives were represented by Jenifer M. Placzek of Placzek & Francis of Springfield.

Rainbow Lake Dam was built in 1974 in Greene County. In 1979, the State of Missouri enacted the Missouri dam and reservoir safety laws. In September 1995, Paul and Marilil Olive bought the property that included Rainbow Lake Dam. In August 2000 and June 2001, the Olives requested an exemption for the dam pursuant to section 236.435, RSMo. The State of Missouri sought injunctive relief and civil penalties in November 2001 alleging that the dam was subject to the safety law, that it did not comply with the laws in that it was not "registered" pursuant to section 236.440, RSMo, and that the dam's emergency spillway was not sufficient in capacity or design. The petition requested the circuit court to order the Olives to comply with the safety laws, to make necessary and authorized improvements to the dam, and to pay a civil penalty of up to $1,000 a day per violation. The Olives moved for summary judgment, arguing the safety laws were being applied retroactively and retrospectively. They asserted the dam met the requirements for the exemptions to the safety law found in section 236.435, RSMo. In November 2007, the circuit court overruled the state's objections and motion to strike exhibits, sustained the Olives' motion for summary judgment, and overruled or dismissed both parties' remaining claims as moot. The state appeals.

The state argues the trial court erred in granting the Olives' motion for summary judgment because sections 236.435 and 236.440 were not applied retroactively or retrospectively, but only as a basis for pursuing claims of violations that occurred after enactment. It contends section 236.435 does not exempt soil and water conservation dams from all statutory requirements to register dams and to ensure their safe construction and operation. The state argues the requirements to register dams and to ensure their safe construction and operation are not found in the provisions of this section. The state further argues the trial court erred in overruling its objections to exhibits and motion to strike, because the exhibits could not be the basis for granting a motion for summary judgment in that the evidentiary materials supporting the Olives' motion lacked foundation and would not have been admitted at trial.

The Olives respond the trial court properly granted their motion for summary judgment because the state is attempting to apply the requirements in section 236.435 retroactively and retrospectively, and such an application is unconstitutional because the dam was constructed prior to the safety laws being enacted. They assert the trial court did not err in granting their motion for summary judgment because section 236.435 exempts soil and water conservation dams from statutory requirements to register dams and to ensure their safe construction and operation, and the Olives' dam falls within the exemption. The Olives argue the trial court properly overruled the state's objections to exhibits and motion to strike because the exhibits are a proper basis for granting the motion for summary judgment and the evidentiary materials supporting the Olives' motion did not lack foundation and would have been admitted at trial.

SC89654
In re: James T. Madison
Jackson County
Attorney Discipline
Listen to the oral argument:

The chief disciplinary counsel's office was represented during argument by Chief Disciplinary Counsel Allen Pratzel of Jefferson City, and James T. Madison of Kansas City represented himself.

James Madison practiced law in Kansas City since 1997. In October 2005, several circuit judges and court staff from Jackson County alerted the office of chief disciplinary counsel of Madison's alleged hostility towards two judges while representing his clients in March and August 2005, including confronting judges about their decisions, writing letters to judges about their decisions, and talking to media about questioning a judge's work ethic. A regional disciplinary committee investigated the allegations and filed a two-count information in June 2007, charging Madison with making a statement he knew to be false, or with reckless disregard as to its truth or falsity, concerning the qualifications of a judge, and engaging in conduct intended to disrupt a tribunal and prejudicial to the administration of justice. The disciplinary hearing panel concluded Madison was guilty of violating Rules 4-8.2 (lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard to its truth or falsity concerning the qualifications or integrity of a judge), 4-3.5(d) (lawyer shall not engage in conduct intended to disrupt a tribunal), and 4-8.4(d) (professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice), and recommended that Madison's license be suspended with no leave to apply for reinstatement for 12 months. The disciplinary counsel seeks to discipline Madison's license.

The disciplinary counsel argues this Court should discipline Madison because his conduct toward judges violated Rules 4-8.2, 4-3.5(d), and 4-8.4(d), in that he made statements impugning the judges' integrity with reckless disregard for their truth or falsity and his conduct intentionally disrupted a judge's courtroom. It contends this Court should suspend Madison's license with no leave to apply for reinstatement for 12 months because he knowingly communicated with judges and in the course of the disciplinary proceeding in such a way as to interfere with the due administration of justice in that he repeatedly and recklessly made false, demeaning and harassing statements to and about judges and the disciplinary process.

Madison responds any act not specifically charged in the information should be stricken from the disciplinary counsel's brief before this Court because a finding of misconduct cannot be made upon any specific act of misconduct not charged in the information. He contends the disciplinary counsel fails to prove by a preponderance of the evidence that he made any statements that were false or made with reckless disregard for truth or falsity. Madison argues the disciplinary counsel fails to prove by a preponderance of the evidence that his alleged behavior in the courtroom amounts to conduct intended to disrupt a tribunal. He further responds he never made a demeaning statement about the disciplinary process or reckless statements about anyone. Madison further responds that he did not intend to disrupt a courtroom, but attempted to stand firm against abuse of judges and that he should not be disciplined.