Case Summary for September 29, 2016

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Case Summary for September 29, 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. Thursday, September 29, 2016
____________________________________________________________________________________________________

SC95514
State ex rel. Norfolk Southern Railway Company v. The Honorable Colleen Dolan
St. Louis County
Exercise of jurisdiction over out-of-state corporation
Listen to the oral argument:

SC95514.mp3
Norfolk Southern was represented during arguments by Kurt E. Reitz of Thompson Coburn LLP in Belleview, Illinois; Russell Parker was represented by Edward D. Robertson Jr. of Bartimus, Frickleton and Robertson PC in Jefferson City.

Indiana resident Russell Parker sued Norfolk Southern Railway Company under the federal employer’s liability act in a Missouri state circuit court, seeking damages for cumulative trauma injuries he alleges he sustained during the course of his employment with Norfolk Southern. Although it operates railroad lines in Missouri, the railway company is incorporated in and has its principal place of business in Virginia. Norfolk Southern moved to dismiss Parker’s lawsuit for lack of jurisdiction. The circuit court overruled Norfolk Southern’s motion in December 2015. The railway company now seeks this Court’s writ prohibiting the circuit court from enforcing its order.

This case presents one primary question for the Court – whether the circuit court may exercise personal jurisdiction (legal authority) over Norfolk Southern. Related to this are issues of whether the allegations in Parker’s petition arise from or relate to Norfolk Southern activities in Missouri sufficient to give rise to specific jurisdiction and whether the circuit court has general jurisdiction over Norfolk Southern through its operations in Missouri even though it is not incorporated in Missouri and does not have a principal place of business in Missouri. Further questions involve whether Norfolk Southern consented to jurisdiction and whether, under the due process clause, an out-of-state corporation’s compliance with mandatory business registration requirements can lead to a finding that the corporation has consented to jurisdiction.

Two organizations filed briefs as friends of the Court. The Missouri Association of Trial Attorneys focuses its arguments on various ways in which the circuit court may exercise jurisdiction in this case, which it argues has consented to jurisdiction in Missouri. In contrast, Westar Energy Inc. focuses its arguments on reasons the circuit court may not exercise jurisdiction in this case, which it argues is limited by due process principles.

SC95514_Norfolk_Southern_brief.pdf

SC95514_Parker_brief.pdf

SC95514_Norfolk_Southern_reply_brief.pdf

SC95514_MATA_amicus_brief.pdf

SC95514_Westar_Energy_amicus_brief.pdf

SC95606
State ex rel. Jason H. Malashock v. The Honorable Michael T. Jamison
St. Louis County
Disclosure of opinions of expert designated, then withdrawn, as potential witness
Listen to the oral argument:

SC95606.mp3
Malashock was represented during arguments by Bradley A. Winters of Sher Corwin Winters LLC in St. Louis; Chesterfield Valley Power Sports was represented by Jessica A. Brasel of Knapp, Ohl & Green in Edwardsville, Illinois.

Jason Malashock, in December 2013, sued Chesterfield Valley Power Sports Inc., alleging the company sold him a defective Polaris utility terrain vehicle that caused injuries to his arm when it tipped over. In September 2015, Malashock designated four experts – including consulting expert Herbert Newbold – as potential trial witnesses pursuant to Rule 56.01. Malashock disclosed the general subject matter about which Newbold might testify but did not include any statement as to the substance of Newbold’s opinions. Two weeks later, Malashock withdrew Newbold’s designation as a potential trial witness. The company took the other experts’ depositions before a deadline for doing so and, a month later, served a notice to take Newbold’s deposition as well. Malashock objected to the proposed deposition. Following a hearing, the circuit court found that Malashock waived any work product privilege with respect to Newbold’s opinions and ordered Malashock to produce Newbold for deposition as well as Newbold’s file, including all communications. Malashock seeks this Court’s writ prohibiting the circuit court from enforcing its order.

This case presents one primary question for the Court – whether the circuit court may order Malashock to disclose the opinions of a potential expert witness who was withdrawn as a potential witness before the expert’s opinions were disclosed. Related to this question are issues of whether Newbold’s expert opinions constitute privileged work product and, if so, whether Malashock waived that privilege by designating Newbold as a potential trial witness under Rule 56.01(b)(4) and disclosing the general nature of Newbold’s opinions.

SC95606_Malashock_brief.pdf

SC95606_Chesterfield_Valley_Power_Sports_brief.pdf

SC95606_Malashock_reply_brief.pdf

SC95613
State of Missouri v. David Kevin Holman
Lawrence County
Challenge to order suppressing statement in murder case
Listen to the oral argument:

SC95613.mp3
The state was represented during arguments by Nathan J. Aquino of the attorney general’s office in Jefferson City; Holman was represented by Jason Coatney, an attorney in Springfield.

Two Lawrence County sheriff’s deputies were dispatched in December 2013 to David Kevin Holman’s home. Holman permitted them to enter. It appeared to the deputies that Holman’s wife had shot him, and that Holman had then shot and killed her. A deputy placed Holman in handcuffs and placed him in a patrol car. After emergency medical technicians declared the wife to be dead, everyone left the home, and the crime scene was secured. A deputy then took Holman by ambulance to have his gunshot wound treated at the hospital. In the ambulance, the deputy read Holman his rights against self-incrimination pursuant to Miranda v. Arizona. The parties dispute whether Holman continued to talk with the deputy. The deputy also asked Holman to sign a form consenting to the search of the home. Holman refused, saying he would not sign anything without his attorney. The next morning, a detective read Holman the Miranda warnings, and Holman made statements about what had happened in the home. The state ultimately charged Holman with first-degree murder and armed criminal action for the shooting death of his wife. In April 2015, Holman moved to suppress the statements he made the morning after the shooting, arguing he had invoked his Fifth Amendment right to counsel when he refused to sign the written consent for the search of his home. During a May 2015 suppression hearing, the parties stipulated to the basic facts. The next month, the circuit court entered an order sustaining Holman’s motion to suppress his statements to the detective. The state appeals.

This appeal presents one primary question for the Court – whether the circuit court properly suppressed Holman’s statements. Related to this are issues of whether Holman unequivocally asserted his Fifth Amendment right to counsel when he refused to sign the search-consent form without his attorney or otherwise invoked his right to counsel and whether the detective’s subsequent questioning of Holman violated the Fifth Amendment.

SC95613_State_brief.pdf

SC95613_Holman_brief.pdf

SC95613_State_reply_brief.pdf

SC95764
State ex rel. William Fleming v. Scott Lawrence
St. Francois and Cole counties
Challenge to probation revocation for failure to pay court costs
Listen to the oral argument:

SC95764.mp3
Fleming was represented during arguments by Amy E. Lowe of the public defender’s office in St. Louis; the state was represented by Caroline M. Coulter of the attorney general’s office in Jefferson City.

William Fleming pleaded guilty to two counts of felony domestic assault. In July 2008, the circuit court sentenced him to seven years in prison, suspended execution of the sentence and placed him on supervised probation for five years. Subsequent probation reports note Fleming’s financial difficulties in making court-ordered payments. In September 2011, Fleming admitted he had violated his probation by not paying his court costs in full within three years. The court permitted him to continue making payments. In April 2013, the state revoked Fleming’s probation for failing to pay his court costs, and the court executed his original seven-year sentence. At the time of his revocation, he owed $4,200, toward which he then paid $1,100. Of the remaining amount, $3,000 was for Fleming’s jail board bill. Fleming seeks this Court’s writ relieving him of his sentence.

This case presents one primary question for the Court – whether the state could revoke Fleming’s probation when his only violation was not paying his court costs. Related to this is the issue of whether Fleming was unable to do so or whether he had the means to pay but failed to make a good faith effort to do so. An additional question is whether the jail board fees properly were included in the court costs Fleming owed. Another question is whether revoking Fleming’s probation violated his state and federal constitutional rights to due process and equal protection or constitutes a miscarriage of justice.

SC95764_Fleming_brief.pdf

SC95764_State_brief.pdf

SC95764_Fleming_reply_brief.pdf

SC95562
In re: Douglas A. Walker Jr.
St. Louis
Attorney discipline

NOTE: This case was removed from the oral argument docket September 29, 2016.

This Court suspended the law license of St. Louis attorney Douglas Walker Jr. in January 2014 for failure to pay taxes; he was reinstated six months later. He previously had been suspended for a similar failure, had been admonished for other violations of the rules of professional conduct and currently is suspended for failure to comply with his continuing legal education obligations. While suspended in 2014, Walker continued to represent clients in the federal bankruptcy court. He admits he used his law partner’s bar number and electronic signature to file new pleadings during this time but explains he tried to correct the tax problem when he became aware of it. In January 2015, the chief disciplinary counsel instituted proceedings against Walker for practicing law without a license. Following a hearing, the disciplinary hearing panel issued its decision finding Walker violated Rules 4-5.5 and 5.27 “by knowingly providing attorney services while suspended” and recommending that Walker be suspended indefinitely with no leave to apply for reinstatement for at least six months. Walker states he since has discontinued his law practice. The chief disciplinary counsel now asks this Court to discipline Walker’s law license.

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

SC95562_Chief_Disciplinary_Counsel_brief.pdf

SC95562_Walker_brief.pdf