Case Summary for May 3, 2016

Your Missouri Courts - Supreme Court

Home

Case Summary for May 3, 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, May 3, 2016
____________________________________________________________________________________________________

SC95388
Gate Gourmet Inc. v. Director of Revenue
St. Louis County
Proper tax rate for frozen meals sold to airlines
Listen to the oral argument:

SC95388.mp3
Gate Gourmet was represented during arguments by Donald M. Griswold of Crowell & Moring LLP in Washington, D.C.; the director was represented by Deputy Solicitor General Jeremiah J. Morgan of the attorney general’s office in Jefferson City.

St. Louis County-based Gate Gourmet Inc. sells prepackaged frozen meals, which it says are substantially similar to “TV dinners” sold by grocers and must be cooked to become safe to eat. Gate Gourmet sold the frozen meals to commercial airlines, which thaw, heat and serve the meals to passengers and crew at no additional cost. The meals are not eaten at Gate Gourmet’s St. Louis facility. Gate Gourmet filed its sales tax returns using a 1-percent sales tax rate for food under section 144.014, RSMo. Following an audit of the January 2008 through December 2010 tax years, the director of revenue assessed additional tax, based on the 4-percent sales tax rate in section 144.020, RSMo. Gate Gourmet paid the assessments under protest and sought review in the administrative hearing commission. Following presentation of evidence and briefing, the commission upheld the director’s assessments. Gate Gourmet seeks this Court’s review.

This case presents several issues for the Court related to whether Gate Gourmet’s frozen meals –designed, prepared, packaged and sold for in-flight consumption – qualify for the 1-percent sales tax rate on “food” as defined in section 144.014. One issue involves whether, under this Court’s 2011 decision in Wehrenberg Inc. v. Director of Revenue, food must be eaten in a personal residence to qualify as “food items for home consumption” or whether it might include food eaten off the seller’s premises. Others involve whether Gate Gourmet’s frozen meals are taxed at a higher rate than similar meals sold by other vendors and, if so, whether this violates the uniformity clause in article X, section 3 of the state constitution.

SC95388_Gate_Gourmet_brief.pdf

SC95388_Director_of_Revenue_brief.pdf

SC95388_Gate_Gourmet_reply_brief.pdf

SC95370
State ex rel. Sharonda Tankins v. The Honorable Thomas Frawley
St. Louis city
Challenge to evidence presented, inferences drawn and findings made in probation revocation case
Listen to the oral argument:

SC95370.mp3
Tankins was represented during arguments by Randall Brachman of the public defender’s office in St. Louis; the state was represented by Christopher Faerber of the circuit attorney’s office in St. Louis.

Sharonda Tankins pleaded guilty in December 2012 to fraudulent use of a credit device. The circuit court suspended imposition of sentence, ordered her to pay approximately $2,300 in restitution and placed her on probation for four years. Neither the judgment nor the restitution memorandum set a schedule or a deadline for payment. In November 2013, the circuit court suspended Tankins’ probation and issued a warrant for her. She later was given notice of the alleged violations of the conditions of her probation. In September 2015, the court held a probation revocation hearing. The state called as a witness Tankins’ new probation officer, who had become her probation officer the month before. Tankins objected on the ground that the probation officer had no personal knowledge of any relevant information and, therefore, the officer’s testimony would be hearsay. The court ultimately overruled the objections, and the probation officer testified about the allegations in the probation reports, including that Tankins had failed to enroll in an employment program, failed to make monthly restitution payments, and tested positive for marijuana. Tankins also objected to evidence of some of the specific violations, which the court overruled. The state called Tankins to the stand; Tankins objected that doing so violated her Fifth Amendment privilege against self-incrimination. The court overruled her objection. Tankisn refused to answer certain questions on Fifth Amendment grounds, and the court advised her it intended to draw negative inferences from her doing so. Ultimately, the court revoked Tankins’ probation. Tankins seeks this Court’s writ prohibiting the circuit court from revoking her probation and holding a sentencing hearing.

This case presents several questions for the Court. One is whether the circuit court, in allowing the probation officer to testify about the contents of probation reports, presented unreliable hearsay evidence because no witness with personal knowledge of the events described in the reports testified or whether the report contents are admissible under section 490.680, RSMo. A related question is whether this violated Tankins’ constitutional rights to due process and confrontation and prejudiced her. Another issue is whether the court made sufficiently specific findings of fact about the conditions of probation it found Tankins violated and the grounds on which it was revoking her probation and, if it did not, whether this violated Tankins’ constitutional rights to due process. An additional issue is whether the circuit court violated Tankins’ constitutional right to due process of law and privilege against self-incrimination when it compelled her to take the stand and then drew a negative inference from her refusal to testify or whether the court was entitled to draw negative inferences because the probation revocation proceeding is civil, not a continuation of the criminal case.

SC95370_Tankins_brief.pdf

SC95370_State_brief.pdf

SC95370_Tankins_reply_brief.pdf

SC95465
Kyle Sanford v. CenturyTel of Missouri LLC
Boone County
Challenge to whether dispute with Internet provider must be arbitrated
Listen to the oral argument:

SC95465.mp3
CenturyLink was represented during arguments by Steven J. Perfrement of Bryan Cave LLP in Denver; Sanford was represented by Kenneth B. McClain of Humphrey, Farrington & McClain PC in Independence.

This case involves a putative class action lawsuit filed by Kyle Sanford in Boone County, Missouri, alleging that CenturyTel of Missouri LLC – which does business as CenturyLink – violated Missouri’s merchandising practices law by assessing a universal services fund surcharge on its high-speed Internet services. Sanford had purchased and used CenturyLink’s “pure broadband package” for approximately six months before terminating the services in August 2012. The company billed him for the surcharge, although the parties dispute whether the company’s Internet services agreement or other notices allowed it to do so. CenturyLink moved to dismiss or stay the court proceedings and to compel arbitration, arguing its Internet services agreement requires arbitration of “disputes of any kind” and states it is governed by the law of Louisiana, where the company is based. In June 2013, the circuit court preliminarily overruled the motion to compel arbitration and ordered the parties to conduct discovery into this issue. Following discovery, Sanford asked the circuit court for a partial judgment determining the case was not subject to arbitration. After argument, the court made one docket entry on July 10, 2014, indicating it was granting Sanford’s motion; four days later, it made a second docket entry indicating the issue remained under advisement. CenturyLink filed its notice of appeal on August 18. The appeal now comes before this Court.

This case presents several issues for the Court. One is whether this Court has jurisdiction over this appeal. Related to this are questions of whether the trial court in fact determined the case was not subject to arbitration and, if so, whether an appeal can be taken directly from that determination and whether CenturyLink’s notice of appeal was timely. Other questions involve whether the dispute falls within the Internet services agreement’s arbitration clause, whether the material terms of that agreement were set or changed unilaterally, and whether the circuit court should have compelled arbitration. Additional issues involve whether the agreement fails due to unconscionability or lack of consideration, whether these questions involve the formation of the contract or the enforceability of a validly formed contract, and whether these questions should be decided by a court or the arbitrator. Another related question is whether these questions are governed by Louisiana or Missouri law or whether this issue was waived in the trial court.

SC95465_CenturyLink_brief.pdf

SC95465_Sanford_brief.pdf

SC95465_CenturyLink_reply_brief.pdf

SC95481
State of Missouri v. Angelo Johnson
St. Louis County
Challenge to defendant’s sentencing as a predatory sexual offender
Listen to the oral argument:

SC95481.mp3
Johnson was represented during arguments by Samuel Buffaloe of the public defender’s office in Columbia; the state was represented by Karen L. Kramer of the attorney general’s office in Jefferson City.

The state charged Angelo Johnson with three counts of first-degree statutory rape, six counts of first-degree statutory sodomy, three counts of incest and one count of second-degree statutory rape for allegedly having sexual intercourse with his biological daughter and two stepdaughters, who were minors at the time. The case was tried to a jury in May 2014. At the close of the evidence, the state asked the court to find Johnson to be a predatory sexual offender. The jury convicted Johnson of all charges but one count of first-degree statutory sodomy, and the trial court ultimately found him to be a predatory sexual offender under section 558.018.5(3), RSMo. The court sentenced him to concurrent terms of life in prison for his first-degree rape and first-degree sodomy convictions, four years in prison for the incest convictions and seven years in prison for the second-degree statutory rape conviction. Johnson appeals.

This case presents several questions for the Court. One is whether the trial court violated Johnson’s state and federal constitutional rights to due process in finding, during the sentencing hearing, that he was a predatory sexual offender. Related to this is the issue of when section 558.021 requires such a finding to be made and whether manifest prejudice resulted. Another issue involves whether section 558.018.5(3) can be interpreted to apply to Johnson, who did not have a prior offense, and whether the state and federal constitutions require a jury, rather than a trial court, to determine whether a defendant is a predatory sexual offender.

SC95481_Johnson_brief.pdf

SC95481_State_Brief.pdf

SC95481_Johnson_reply_brief.pdf

SC95482
Karen Carpenter v. State Board of Nursing
St. Louis city
Whether nurse seeking attorney fees was a “prevailing party” in court case regarding discipline against her license
Listen to the oral argument:

SC95482.mp3
Carpenter was represented during arguments by Kevin J. Dolley of the Law Offices of Kevin J. Dolley LLC in St. Louis; the board was represented by Daryl R. Hylton of the attorney general’s office in Jefferson City.

Karen Carpenter, who was licensed as a registered professional nurse, failed a drug test in April 2008 during her employment at Fulton State Hospital, which reported the test results to the state board of nursing. The board filed a complaint in May 2011 with the administrative hearing commission seeking a finding that cause existed to discipline Carpenter’s nursing license. Following a February 2012 hearing, the commission in September 2012 issued its decision finding that Carpenter subject to discipline because she unlawfully possessed controlled substances, for which she tested positive, while on duty as a nurse and that these actions constitution misconduct, gross negligence and a violation of professional trust. The board then conducted a hearing regarding discipline. In December 2012, the board issued an order placing Carpenter’s nursing license on probation for three years, subject to specified terms and conditions including employment restrictions and requirements relating to employment, chemical treatment and rehabilitation, drug screening, and continuing education. In January 2013, Carpenter hired legal counsel, who filed a petition in the St. Louis circuit court seeking a stay and judicial review of the board’s disciplinary order. Following argument, the court in April 2013 granted the stay, finding the board failed to show any harm to the public interest. Following briefing of whether the board timely filed its complaint, the court in February 2014 issued a partial judgment finding the board filed its complaint within the statute of limitations. Following further briefing of whether the board abused its discretion in disciplining Carpenter’s license, the court in September 2014 reversed the disciplinary order and remanded (sent back) the case to the board to reconsider discipline. It found that the board’s role is to protect the public rather than to punish misconduct and that the board’s order was arbitrary, capricious and unreasonable under the circumstances. Carpenter subsequently sought attorney fees. In February 2015, the court issued its final judgment finding the board’s complaint was filed timely, reversing the board’s disciplinary order and remanding the case to the board to issue appropriate discipline pursuant to section 536.140(5), RSMo. Specifically, the court held Carpenter’s probation should be reduced to one year, discarded most conditions and restrictions of probation, and entered general requirements for her probation. The court further held Carpenter was not entitled to attorney fees because she was not the “prevailing party” for purposes of sections 536.085(3) and 536.087(1), RSMo. Carpenter appeals only the portion of the judgment relating to attorney fees.

This case presents one primary issue for the Court – whether Carpenter is a “prevailing party” under section 536.087, thereby qualifying for attorney fees. Related to this is a question of whether the judgment easing the disciplinary terms against her license and finding that the board’s order was arbitrary, capricious and unreasonable under the circumstances make Carpenter a “prevailing party” or whether the fact that the court determined Carpenter’s license is subject to discipline means she is not a “prevailing party.”

SC95482_Carpenter_brief.pdf

SC95482_State_Board_of_Nursing_brief.pdf

SC95482_Carpenter_reply_brief.pdf