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Case Summary for April 13, 2016


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 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


9:30 a.m. Wednesday, April 13, 2016

State of Missouri ex rel. Attorney General Chris Koster and The Missouri Petroleum Storage Tank Insurance Fund Board of Directors v. ConocoPhillips Company and Phillips 66 Company and Cory Wagoner
St. Louis city
Legal status of appeal; citizen’s right to intervene in case involving state fund
Listen to the oral argument: SC95444.mp3SC95444.mp3
Wagoner was represented during arguments by Thomas W. Millington of Millington, Glass & Love in Springfield; the attorney general and insurance fund were represented by State Solicitor James R. Layton of the attorney general’s office in Jefferson City; and ConocoPhillips was represented by Glenn Burhans Jr. of Stearns Weaver Miller Weissler Aldahoff & Sitterson PA in Tallahassee, Florida.

Special judge Colleen Dolan – a judge on the Missouri Court of Appeals, Eastern District – sat on this case by special designation in place of Judge Mary R. Russell.

Missouri’s petroleum storage tank insurance fund, governed by provisions of chapter 319, RSMo, reimburses voluntary participants for certain eligible costs incurred in remediating leaking underground storage tanks. ConocoPhillips Company and Phillips 66 Company (collectively, ConocoPhillips) states that, in mid-2012, the state – including representatives from the fund, the state’s department of natural resources and the attorney general’s office – sought to recover reimbursements made to ConocoPhillips. According to ConocoPhillips, the parties entered into settlement negotiations, but before they could reach an agreement, Cory Wagoner sued ConocoPhillips in November 2012 in Greene County. In his suit, Wagoner alleged ConocoPhillips wrongfully obtained payment from the fund and failed to disclose to the fund insurance payments it had received for leaks from its petroleum storage tanks and other pollution liabilities. The attorney general and ConocoPhillips both moved to dismiss Wagoner’s suit. Following a hearing, the court in March 2013 dismissed the fund and the state from the suit but overruled ConocoPhillips’ motion to dismiss. Wagoner then amended his petition, stating an additional claim under federal law. The case was moved from the state circuit court to a federal district court, which later determined that the fund, rather than Wagoner, was the proper party. The federal case ultimately was dismissed. In September 2013, Wagoner then filed a new suit in the Greene County circuit court, which later overruled the state’s motion to dismiss. Meanwhile, in April 2013, the attorney general, on behalf of the fund and its directors, sued ConocoPhillips in the circuit court in St. Louis, alleging ConocoPhillips wrongfully obtained payments from the fund. Wagoner moved to intervene in the St. Louis suit, arguing he was entitled to intervene as a matter of right. He also moved to dismiss the state’s lawsuit, alleging that the state and attorney general had no standing (legal ability) to file the suit and that the St. Louis suit could not proceed because of his prior and still pending action in Greene County. The St. Louis circuit court entered its order in November 2014 overruling Wagoner’s motion to intervene, finding the state was the real party in interest. Wagoner moved the court to amend or alter its order; the court never ruled on this request. The state and ConocoPhillips subsequently filed a joint motion to approve a settlement resolving claims the state, the attorney general, the fund and its trustees alleged against ConocoPhillips. The court in December 2014 approved the settlement and dismissed the suit with prejudice the next day. Wagoner then filed a motion to set aside the judgment approving the settlement and dismissing the case. The court ordered there would be no further proceedings in the case. Wagoner appeals.

This case presents several issues for the Court. There are several procedural issues concerning the appeal. One is whether Wagoner has appealed the St. Louis court’s December 2014 judgment approving the settlement and dismissing the case and, if so, whether he has standing to do so given that he was not a party in the underlying case, or whether he has appealed the court’s November 2014 order overruling his motion to intervene, and, if so, whether his appeal was timely. As to substantive issues in the case, one question is whether Wagoner was entitled to intervene in the St. Louis case as a matter of right. Related to this issue are questions of Wagoner’s interest in the subject matter of the case as well as whether the whether the attorney general, on behalf of the state, is able to represent the fund’s interests adequately or whether Wagoner, as a citizen and taxpayer, had interests the state could not represent adequately. Additional questions involve whether the St. Louis court could exercise jurisdiction over the subject matter of the case when a suit with the same subject matter was pending in the Greene County court or whether it retained jurisdiction to amend its intervention order, per Wagoner’s request, after it dismissed the case after entering judgment accepting the settlement agreement.


Tanisha Ross-Paige v. Saint Louis Metropolitan Police Department, Steven A. Gori, Michael A. Deeba Sr., Saint Louis Board of Police Commissioners, Richard H. Gray, Bettye Battle Turner, Thomas J. Irwin and Francis G. Slay
St. Louis city
Challenge to jury instruction, allegation of juror misconduct in employment discrimination and retaliation case
Listen to the oral argument: SC95214.mp3SC95214.mp3
The police department and city officials were represented during arguments by Benjamin Cox of the attorney general’s office in Kansas City; and Ross-Paige was represented by Edward D. Robertson Jr. of Bartimus, Frickleton, Robertson & Goza PC in Jefferson City.

Tanisha Ross-Paige began working for the St. Louis metropolitan police department in December 2001. About six years later, she was supervised for several months by Sergeant Steven Gori. Ross-Paige alleged Gori sexually harassed her during that time. She transferred to the department’s canine unit and, about a year later, Gori was transferred to the same unit. She alleges that the unwelcome advances continued and that Gori threatened to change her shift or transfer her out of the unit if she did not stop “being so hard.” She did not report Gori’s conduct until June 2011, when she filed an Equal Employment Opportunity Commission complaint alleging Gori had harassed her and retaliated against her because she would not accept his advances. Days later, she received a negative performance evaluation from a sergeant as well as an e-mail from Lieutenant Michael Deeba questioning her conduct. Later that month, Ross-Paige went on medical leave for a surgical procedure. In September 2011 – while she still was on leave – Deeba told his superiors that he had been notified by a third-party investigator that Ross-Paige’s allegations against Gori had been found to be without merit, although the EEOC apparently had recommended that Ross-Paige should not report to Gori. Deeba recommended to his superiors that she be transferred out of the canine unit. She returned to duty in the canine unit in October 2011 and ultimately sued the city’s police department and board of police commissioners for sexual discrimination and retaliation. In January 2012, she was injured on the job, requiring more surgery. Later that year, the department dismissed Ross-Paige because her medical restrictions prevented her from performing the essential functions of a police officer. In December 2012, she applied for disability retirement from the St. Louis police retirement system. The status of her application at the time of trial is unclear. The trial was bifurcated (split) into two trials. The first trial concerned the issue of liability. The jury found in favor of the board with respect to Ross-Paige’s discrimination claim but in her favor with respect to her retaliation claim. The jury also found the board was liable for punitive damages. During jury deliberations to determine the amount of damages, one of the jurors apparently used his phone to conduct an independent Internet search regarding punitive damages and apparently read aloud what he found, although he was unsure whether other jurors may have heard him. Ultimately, the jury awarded Ross-Paige $300,000 in actual damages and $7.2 million in punitive damages. The trial court amended the judgment to reflect the statutory cap on damages, entering its final judgment awarding Ross-Paige more than $3 million in total damages. The police department and board of police commissioners appeal.

This case presents several questions for the Court. One is whether the retaliation instruction asked the jury to consider an alternate theory of recovery based on whether the board “refused” Ross-Paige’s disability claim or whether the jury could find the board “refused or delayed” her disability claim to find the board liable. A related question is whether there was evidence that the board, rather than the police retirement system, in fact refused, delayed or otherwise denied her claim and whether such evidence was substantial enough to support the jury instruction. Other questions involve whether the juror’s independent Internet search regarding punitive damages can be considered to impeach (undermine) the jury’s verdict, whether it had a prejudicial effect on the jury’s calculation of punitive damages and whether the trial court should have granted a new trial on the issue of punitive damages.


Missouri Real Estate Appraisers Commission v. Mark A. Funk
Cole and Henry counties
Challenge to award and amount of attorney fees in agency action
Listen to the oral argument: SC95255.mp3SC95255.mp3
The appraisers commission was represented by Craig Jacobs of the attorney general’s office in Jefferson City; and Funk was represented by Michael X. Edgett of Cason, Edgett, Mahan & Lutjen LLC in Clinton.

Clinton resident Mark Funk applied to the Missouri Real Estate Appraisers Commission (MREAC) in January 2007 to become a state-certified general real estate appraiser. As part of his application, he submitted two commercial appraisal reports. The MREAC met with Funk to discuss one of the reports, questioning his analysis of the leases and his methodology for determining the capitalization rate. The MREAC ultimately denied Funk’s application, noting inadequate support and analysis for Funk’s sales comparison and income approaches, inadequate analyses of sales comparison data and current lease, and an incorrect capitalization rate. Funk appealed to the administrative hearing commission (commission). He was not represented by counsel during the commission proceedings. Following discovery and a hearing, the commission in November 2008 issued its decision certifying Funk as a state-certified general real estate appraiser. The MREAC sought review in the Cole County circuit court, and Funk hired counsel to represent him. After briefing and argument, the circuit court reversed the commission’s decision. Funk appealed, and his counsel continued to represent him in the court of appeals, which in January 2010 reversed the circuit court’s judgment. In reinstating the commission’s award of Funk’s general real estate appraiser certification, the appeals court noted its reliance on the commission’s credibility findings. In February 2010, Funk asked the commission to award him attorney fees and expenses. The commission dismissed his motion, finding it lacked jurisdiction, but the Henry County circuit court reversed that decision, remanding (sending back) the case to the commission. Following a hearing, the commission ultimately issued its decision awarding Funk approximately $17,000 in attorney fees (based on a specialized rate of $200/hour) and nearly $2,400 in costs. The MREAC sought review in the Cole County circuit court, which reversed the commission’s decision, finding that the MREAC was substantially justified in denying Funk’s certification application (such that he was not entitled to attorney fees) and that Funk failed to show he is entitled to an award of fees in excess of the statutory rate of $75/hour. Funk appeals.

This case presents several issues for the Court. One involves whether Funk timely filed his application for attorney fees under section 536.087, RSMo, which requires the “prevailing party” in a contested case to file such an application within 30 days of “final disposition,” as well as whether it was proper for him to file his application in the commission or the appeals court. A related question concerns whether the timing of when Funk should have filed his application was affected by the fact that he did not hire counsel until after the MREAC appealed the commission’s decision to award Funk certification, and then he did not “prevail” again until the appeals court reversed the circuit court’s judgment. An additional related question involves the effect of the Henry County circuit court’s decision on the MREAC’s ability from argue on appeal now that Funk did not file his application timely or in the proper tribunal. Another issue involves the standard by which it should be determined whether the MREAC was “substantially justified” in denying Funk’s certification and then seeking review of the commission’s grant of certification, as well as the evidence that should be considered in determining whether the MREAC had substantial justification. A further issue involves whether Funk established special factors under section 536.085 for exceeding the $75/hour statutory limit for attorney fees.


Steven D. Green v. State of Missouri
Greene County
Challenge to denial of post-conviction relief from convictions for rape and incest
Listen to the oral argument: SC95363.mp3SC95363.mp3
Green was represented by Samuel E. Buffaloe of the public defender’s office in Columbia; and the state was represented by Dora A. Fichter of the attorney general’s office in Jefferson City.

In March 2008, Steven Green’s wife awoke around 4:30 a.m. and found Green in the bedroom of his 12-year-old daughter from a prior relationship. Both were unclothed, and Green was lying on top of the girl, having sexual intercourse. The wife took the girl to the hospital, and the girl subsequently was interviewed at a child advocacy center. The state charged Green with first-degree statutory rape and incest. His case was tried before a jury in December 2009. The jury found Green guilty as charged, and the court sentenced Green, as a prior and persistent offender, to concurrent prison terms of life for the rape and seven years for the incest. The court of appeals affirmed his convictions and sentences, and Green timely sought post-conviction relief. After the circuit court appointed a public defender, counsel filed an amended motion for post-conviction relief to which counsel attached additional pro se claims by Green, including that his trial counsel was ineffective for failing to request a speedy trial and for failing to investigate and interview witnesses in a timely fashion. Following an evidentiary hearing, the court in September 2014 issued its judgment denying Green relief. Its findings of fact and conclusions of law addressed each of the claims in the amended motion but not the claims in the attached pro se motion. Green appeals.

This case presents several questions for the Court. One is whether the circuit court failed to adjudicate Green’s two pro se claims or whether, by not filing a motion to amend the circuit court’s findings of fact and conclusions of law pursuant to Rule 78.07, Green waived those claims. Three additional issues involve whether Green’s counsel was ineffective for failing to call certain individuals as witnesses – a doctor to testify that he did not observe bruises on the girl’s neck when he examined her in the emergency room, a nurse practitioner to testify she did not observe any recent injuries to the girl’s genitalia when she examined her at the child advocacy center and a woman to corroborate her boyfriend’s trial testimony that the boyfriend and Green were together at Waffle House at the time of the crime. Related questions involve whether counsel’s failure to call these witnesses violated his state or federal constitutional rights to due process and effective assistance of counsel and whether Green was prejudiced as a result. A further question involves whether Green’s counsel should have sought sanctions for the state’s alleged nondisclosure of a recording of Green’s preliminary hearing the extent to which the nondisclosure may have affected the circuit court’s decision and whether Green was prejudiced.


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