Case Summary for January 29, 2009

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Case Summary for January 29, 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.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Thursday, January 29, 2009

____________________________________________________________________

SC89449
Bernice Mitchell v. Joseph Evans, M.D., et al.
Jackson County
Medical negligence
Listen to the oral argument:

Mitchell was represented during argument by William H. Pickett of Kansas City, and Evans was represented by Bryan T. Pratt of Shook, Hardy & Bacon L.L.P. in Kansas City.

Bernice Mitchell's husband broke both femurs and sustained other injuries as the result of an August 2000 automobile accident. He was transported from the scene of the accident to Independence Regional Health Center, where he received medical treatment from Dr. Joseph Evans. Mitchell's husband died while in Evans' care. Two years later, Mitchell's father-in-law initiated medical negligence claims against Evans. In August 2003, Mitchell filed a separate wrongful death suit against Evans for medical negligence causing or contributing to her husband's death. Ultimately, by October 2005, all pending lawsuits against Evans for the husband's death were consolidated, and Mitchell was substituted as the plaintiff for her father-in-law. In January 2006, the trial court entered judgment for Evans. Mitchell appeals.

Mitchell argues the trial court erred in giving instructions it drafted and rejecting three of her proffered instructions. She contends Rule 70.02(a) does not give the trial court discretion to reject her instructions that were in the proper form and supported by substantial evidence. Mitchell asserts the court's instructions were vague, misleading, prejudicial and not supported by the evidence. She further argues the trial court erred in failing to declare a mistrial during jury selection, when Evans violated a pretrial order not to mention the other lawsuits filed in connection with the husband's death. Mitchell contends evidence of the other lawsuits about the automobile accident created the appearance she was overly litigious and greedy. She asserts that pleadings in the other lawsuits were not abandoned pleadings or binding judicial admissions but rather were valid alternative pleadings that could not be used against Mitchell in the case against Evans. Mitchell argues the prejudicial effect of the evidence in the other case's pleadings far outweighed whatever probative value the evidence might have had. She contends the trial court abused its discretion in permitting Evans' closing argument, which appealed for sympathy and made misleading statements. Mitchell asserts such argument is impermissible as a matter of law and confused and misled the jury, resulting in prejudice that deprived her of a fair trial. She argues the cumulative effect of the trial court's errors warrant a new trial, even if the errors considered individually do not.

Evans responds that the instructions the court submitted to the jury were proper. He asserts that Mitchell failed to object properly to the instructions at trial and that she was not prejudiced by their submission. He contends his counsel's question during jury selection was proper because it was supported by the evidence and did not prejudice Mitchell. Evans argues the trial court did not abuse its discretion in admitting pleadings that Mitchell filed in other lawsuits because those are abandoned pleadings and were admitted properly for the purpose of impeaching Mitchell with admissions contained in them. He contends that his closing argument did not cause manifest injustice or a miscarriage of justice and that the court properly denied Mitchell's motion for a new trial because there was no cumulative error or prejudice.

SC89402
James Schlereth v. Jane Tillman Hardy, Jefferson County Collector of Revenue
Jefferson County
Proper notice for tax sale
Listen to the oral argument:

Schlereth was represented during argument by Stanley D. Schnaare of The Schnaare Law Firm, PC in Hillsboro, and Hardy was represented by E.G. Burton, III of in Webster Groves.

Jane Hardy owned property in Jefferson County but failed to pay taxes on it in 1999, 2000 and 2001. Due to the more than $2,000 in delinquent taxes, the county collector sold her property at an August 2002 tax sale to James Schlereth for $9,500. Pursuant to section 140.405, RSMo, he sent Hardy notices, by certified mail to her home address, of her rights to redeem her property. The post office attempted to deliver the notice on May 10 and 21, 2004, but Hardy did not pick up the certified notice, and it was returned to Schlereth in June 2004, marked by the postal service as "unclaimed." In March 2004 – apparently unaware that her property had been sold – Hardy paid the property taxes due for 2002 and 2003. In August 2004, Schlereth obtained a collector's deed to the property and, in September, he brought a suit to quiet title against Hardy and the county collector. Hardy brought a counterclaim asking the trial court set aside the tax sale and collector's deed. The trial court entered summary judgment in favor of Schlereth in April 2006 on Hardy's counterclaim. In December 2006, Hardy moved to amend the judgment and for a new trial. In March 2007, the trial court granted his motion for a new trial. In May 2008, the trial court granted summary judgment to Hardy. Both parties appeal.

Schlereth argues he properly notified Hardy about her redemption rights because Hardy lived at the address to which he sent the notice. He contends that he complied with the statutory requirements and that no additional steps were necessary to provide due process. In response to Hardy's cross-appeal, Schlereth responds the deputy county clerk may sign the county clerk's name pursuant to section 51.430, RSMo, and that the county clerk does not, herself, need to be present to witness the collector's deed. He contends he could not pay the accrued taxes for the property because it had been paid by Hardy. Schlereth further argues he repaid Hardy for the accrued taxes she had paid prior to the issuance of the collector's deed. He responds that there is no legal requirement for the collector's office to inform a taxpayer that her property has been sold at a delinquent tax land sale and she is not a member of a protected class to claim an equal protection violation.

In her cross-appeal, Hardy argues the notice that Schlereth sent did not meet the requirements of the section 140.405 because it did not indicate that Schlereth intended to seek a collector's deed. She contends the statutory requirements of the collector's deed were not met because the county clerk did not witness the deed, the signature on the collector's deed was not the legal signature of the county clerk, and because Schlereth did not pay the post-sale real estate taxes accruing on the property before obtaining a collector's deed. Hardy further argues her constitutional right to equal protection was violated because, when she appeared in person at the collector's office, the collector did not advise her that her property had been sold for taxes.

SC89527
David Gehrke v. State of Missouri
Jackson County
Postconviction relief in a child sex case
Listen to the oral argument:

Gehrke was represented during argument by Ruth B. Sanders of the public defender's office in Kansas City, and the state was represented by Jayne T. Woods of the attorney general's office in Jefferson City.

David Gehrke pleaded guilty in 1997 to one count of forcible sodomy, four counts of furnishing pornographic material to a minor, one count of deviate sexual assault, four counts of first-degree statutory sodomy, four counts of first-degree child molestation and one count of second-degree child molestation. He was sentenced to 107 years in prison. In February 1999, Gehrke filed a motion for postconviction relief asking the court to vacate his guilty pleas. In September 2001, after an evidentiary hearing, the circuit court issued its judgment denying relief. Gehrke's counsel filled out a notice of appeal form that was file-stamped in September 2001, but no further steps to perfect the appeal were taken. In August 2006, Gehrke moved to reopen his postconviction relief case, arguing his attorney abandoned him by failing to file a notice of appeal properly. The circuit court denied his motion. Gehrke appeals.

Gehrke argues the circuit court violated his constitutional rights to due process of law when it did not grant him an evidentiary hearing on his motion to reopen his postconviction relief case so he could appeal its earlier denial of his postconviction relief claims. He contends his postconviction counsel abandoned him by failing to appeal the denial of his postconviction relief claims.

The state responds that failure to file a notice of appeal from the denial of a postconviction motion does not constitute abandonment. It further argues this Court already has provided an avenue for relief in Rule 30.03, which allowed Gehrke to petition for leave to file a late notice of appeal up to one year after the judgment denying his postconviction motion became final.